As filed with the Securities and Exchange Commission on December 29, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Pacific Enterprises California 94-0743670
Sempra Energy California 33-0732627
(Exact name of registrant (State or other jurisdiction of (I.R.S. Employer
as specified in its charter) incorporation or organization) Identification)
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555 West Fifth Street
Los Angeles, California 90013
(213) 244-1200
(Name, address, including zip code, and telephone number,
including area code, of each registrant's principal executive offices)
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Copies to:
John R. Light, Esq.
Executive Vice President and General Counsel
101 Ash Street
San Diego, California 92101
(619) 696-2034
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the registration statement becomes effective, as determined by
market and other conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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CALCULATION OF REGISTRATION FEE
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Proposed
maximum
aggregate Amount of
Title of each class of securities to be Amount to be offering Registration
registered(1) registered(1)(2)(3) price(3)(4) Fee
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Debt Securities of Pacific Enterprises..........
Guarantees of Debt Securities of Pacific
Enterprises by Sempra Energy(5)................
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Total........................................... $500,000,000 $500,000,000 $125,000
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(1) An indeterminate principal amount of debt securities of Pacific Enterprises
and guarantees of Sempra Energy with an aggregate offering price not to
exceed $500,000,000.
(2) In United States dollars or the equivalent thereof in any other currency,
composite currency or currency unit as shall result in an aggregate initial
offering price for all securities of $500,000,000.
(3) This amount represents the principal amount of any debt securities issued
at their stated principal amount and the issue price of any debt securities
issued at a discount from the stated principal amount.
(4) Estimated solely for the purpose of calculating the registration fee, which
is calculated in accordance with Rule 457(o) of the rules and regulations
under the Securities Act of 1933. Rule 457(o) permits the registration fee
to be calculated on the basis of the maximum offering price of all of the
securities listed and, therefore, the table does not specify by each class
information as to the amount to be registered, the proposed maximum
offering price per unit or the proposed maximum aggregate offering price.
(5) Guarantees of debt securities may be issued by Sempra Energy. No separate
consideration will be received for the issuance of these guarantees.
Pursuant to Rule 457(n), no separate fee is payable for the guarantees.
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The registrants hereby amend this registration statement on such date or
dates as may be necessary to delay its effective date until the registrants
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this registration statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this preliminary prospectus is not complete and may be +
+changed. We may not sell these securities until the registration statement +
+filed with the Securities and Exchange Commission is effective. This +
+preliminary prospectus is not an offer to sell these securities and it is not +
+soliciting an offer to buy these securities in any state where the offer or +
+sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED DECEMBER 29, 2000
PRELIMINARY PROSPECTUS
$500,000,000
PACIFIC ENTERPRISES
Senior Unsecured Debt Securities
We may offer and sell debt securities from time to time in one or more
offerings. Our payment obligations under any series of debt securities may be
guaranteed by Sempra Energy, our parent company. The debt securities, including
any guarantee of the debt securities, are collectively referred to herein as
the "securities." This prospectus provides you with a general description of
the securities.
Each time we sell securities we will provide a supplement to this prospectus
that contains specific information about the offering and the terms of the
securities. The supplement may also add, update or change information contained
in this prospectus. You should carefully read this prospectus and the
accompanying prospectus supplement before you invest in any of our securities.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
The date of this prospectus is , 2000.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS....................................................... 1
FORWARD-LOOKING STATEMENTS.................................................. 2
WHERE YOU CAN FIND MORE INFORMATION......................................... 2
PACIFIC ENTERPRISES......................................................... 5
SEMPRA ENERGY............................................................... 5
USE OF PROCEEDS............................................................. 6
RATIO OF PACIFIC ENTERPRISES EARNINGS TO FIXED CHARGES...................... 6
RATIO OF SEMPRA ENERGY EARNINGS TO FIXED CHARGES............................ 6
DESCRIPTION OF DEBT SECURITIES.............................................. 7
GLOBAL SECURITIES........................................................... 17
EXPERTS..................................................................... 19
VALIDITY OF THE SECURITIES.................................................. 19
PLAN OF DISTRIBUTION........................................................ 20
ABOUT THIS PROSPECTUS
This prospectus is part of a "shelf" registration statement that Pacific
Enterprises and Sempra Energy filed with the United States Securities and
Exchange Commission, or the "SEC." By using a shelf registration statement, we
may sell up to $500,000,000 offering price of the securities described in this
prospectus from time to time and in one or more offerings. This prospectus only
provides you with a general description of the securities that we may offer.
Each time we sell securities, we will provide a supplement to this prospectus
that contains specific information about the terms of the securities. The
supplement may also add, update or change information contained in this
prospectus. Before purchasing any securities, you should carefully read both
this prospectus and the accompanying prospectus supplement, together with the
additional information described under the heading "Where You Can Find More
Information."
You should rely only on the information contained or incorporated by
reference in this prospectus and in any prospectus supplement. Pacific
Enterprises and Sempra Energy have not authorized any other person to provide
you with different information. If anyone provides you with different or
inconsistent information, you should not rely on it. You should assume that the
information appearing in this prospectus and the accompanying prospectus
supplement is accurate as of the dates on their respective covers. Pacific
Enterprises' or Sempra Energy's business, financial condition, results of
operations and prospects may have changed since those dates.
1
FORWARD-LOOKING STATEMENTS
This prospectus, any accompanying prospectus supplement and the documents
they incorporate by reference may contain statements that are not historical
fact and constitute "forward-looking statements." When Pacific Enterprises or
Sempra Energy uses words like "believes," "expects," "anticipates," "intends,"
"plans," "estimates," "may," "should" or similar expressions, or when either of
them discusses its strategy or plans, it is making forward-looking statements.
Forward-looking statements are not guarantees of performance. They involve
risks, uncertainties and assumptions. Pacific Enterprises' or Sempra Energy's
future results may differ materially from those expressed in these forward-
looking statements. These statements are necessarily based upon various
assumptions involving judgments with respect to the future and other risks,
including, among others:
. national, international, regional and local economic, competitive,
technological, political, legislative and regulatory conditions and
developments;
. capital market conditions, inflation rates, exchange rates and interest
rates;
. energy markets, including the timing and extent of changes in commodity
prices;
. weather conditions;
. business, regulatory and legal decisions;
. the pace of deregulation of retail natural gas and electricity delivery;
. the timing and success of business development efforts; and
. other uncertainties, all of which are difficult to predict and many of
which are beyond the control of either Pacific Enterprises or Sempra
Energy.
You are cautioned not to rely unduly on any forward-looking statements.
These risks and uncertainties are discussed in more detail under "Business" and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" in each of Pacific Enterprises' and Sempra Energy's Annual Reports
on Form 10-K for the year ended December 31, 1999, each of Pacific Enterprises'
and Sempra Energy's Quarterly Reports on Form 10-Q for the three-month periods
ended March 31, 2000, June 30, 2000 and September 30, 2000, and other documents
on file with the SEC. You may obtain copies of these documents as described
under "Where You Can Find More Information" in this prospectus.
WHERE YOU CAN FIND MORE INFORMATION
Available Information
Pacific Enterprises and Sempra Energy file reports, proxy or information
statements and other information with the SEC. You may inspect and copy
information that they file with the SEC at the Public Reference Room maintained
by the SEC and at the Regional Offices of the SEC as follows:
Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center
Room 1024 Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, New York 10048 Suite 1400
Chicago, Illinois 60661-2551
You may also obtain copies of this information by mail from the Public
Reference Section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, at prescribed rates. Further information on the operation of the
SEC's Public Reference Room in Washington, D.C. can be obtained by calling the
SEC at 1-800-SEC-0330.
2
The SEC also maintains a web site that contains reports, proxy or
information statements and other information about issuers, such as Pacific
Enterprises and Sempra Energy, who file electronically with the SEC. The
address of that site is http://www.sec.gov.
Pacific Enterprises' preferred stock is listed on the American Stock
Exchange (AMEX: PET[caret]A, PET[caret]B, PET[caret]C and PET[caret]D), and you
may also inspect reports, proxy statements and other information concerning
Pacific Enterprises at the offices of the American Stock Exchange at 86 Trinity
Place, New York, New York 10006- 1817.
Sempra Energy's common stock is listed on the New York Stock Exchange (NYSE:
SRE), and you may also inspect reports, proxy or information statements and
other information concerning Sempra Energy at the offices of the New York Stock
Exchange at 20 Broad Street, New York, New York 10005.
This prospectus is part of a registration statement that Pacific Enterprises
and Sempra Energy filed with the SEC. The full registration statement may be
obtained from the SEC, Pacific Enterprises or Sempra Energy, as indicated
below. Forms of the indentures and other documents establishing the terms of
the securities are filed as exhibits to the registration statement. Statements
in this prospectus about these documents are summaries. You should refer to the
actual documents for a more complete description of the relevant matters.
Incorporation by Reference
The rules of the SEC allow Pacific Enterprises and Sempra Energy to
"incorporate by reference" information into this prospectus, which means that
each can disclose important information to you by referring you to another
document filed separately with the SEC. The information incorporated by
reference is deemed to be part of this prospectus, and later information that
each files with the SEC will automatically update and supersede that
information. This prospectus incorporates by reference the documents set forth
below that have been previously filed with the SEC. These documents contain
important information about Pacific Enterprises and Sempra Energy.
Pacific Enterprises' SEC Filings
(File No. 1-40) Period
-------------------------------- ------
Annual Report on Form 10-K...... Year ended December 31, 1999
Quarterly Reports on Form 10-Q.. Three-month periods ended March 31, 2000,
June 30, 2000 and September 30, 2000
Sempra Energy's SEC Filings
(File No. 1-14201) Period
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Annual Report on Form 10-K...... Year ended December 31, 1999
Quarterly Reports on Form 10-Q.. Three-month periods ended March 31, 2000,
June 30, 2000 and September 30, 2000
Current Reports on Form 8-K..... Filed January 28, 2000, February 8, 2000,
February 22, 2000, March 9, 2000, March
30, 2000, April 28, 2000, August 2,
2000, October 27, 2000, December 5, 2000
and December 13, 2000
Pacific Enterprises and Sempra Energy are also incorporating by reference
all additional documents that they file with the SEC pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
between the date of this prospectus and the termination of the offering of
securities described in this prospectus.
3
Pacific Enterprises and Sempra Energy will provide without charge to each
person to whom a copy of this prospectus has been delivered a copy of any and
all of these filings. You may request a copy of these filings by writing or
telephoning:
With respect to Pacific Enterprises'
filings: With respect to Sempra Energy's filings:
Pacific Enterprises Sempra Energy
555 West Fifth Street 101 Ash Street
Los Angeles, California 90013 San Diego, California 92101
Attention: Corporate Secretary Attention: Corporate Secretary
Telephone: (213) 244-1200 Telephone: (619) 696-2034
4
PACIFIC ENTERPRISES
Pacific Enterprises is a subsidiary of Sempra Energy and a holding company
for Southern California Gas Company ("SoCalGas"), the nation's largest natural
gas distribution utility. It owns all of SoCalGas' outstanding common stock and
50,877 shares of its preferred stock, together representing 99% of SoCalGas'
outstanding shares.
SoCalGas distributes natural gas throughout most of southern California and
portions of central California in a 23,000 square-mile service territory with a
population of approximately 18.1 million people. It offers two basic services,
sale of natural gas and transportation of natural gas, through its two business
units. One business unit focuses on core distribution customers (primarily
residential customers) and the other on large-volume gas transportation
customers. Natural gas service is also provided on a wholesale basis to the
distribution systems of the City of Long Beach, San Diego Gas & Electric
Company ("SDG&E"), another indirect subsidiary of Sempra Energy and a non-
subsidiary affiliate company of SoCalGas, and Southwest Gas Corporation.
The information above concerning Pacific Enterprises and SoCalGas is only a
summary and does not purport to be comprehensive. For additional information
concerning Pacific Enterprises and SoCalGas, you should refer to the
information described under the caption "Where You Can Find More Information"
in this prospectus.
Pacific Enterprises' offices are located at 555 West Fifth Street, Los
Angeles, California 90013 and the telephone number is (213) 244-1200. Pacific
Enterprises' web site is www.pacent.com. This reference to Pacific Enterprises'
web site is not an active hyperlink and the information found on Pacific
Enterprises' web site does not constitute a part of this prospectus. The terms
"we," "our" and "us" are used in this document for purposes of convenience and
are intended to refer only to Pacific Enterprises unless the context may
otherwise require.
SEMPRA ENERGY
Sempra Energy, based in San Diego, is a Fortune 500 energy services company.
Through two regulated utility subsidiaries, SoCalGas and SDG&E, Sempra Energy
serves over 21 million consumers, the largest customer base of any gas,
electric or combination gas and electric utility in the United States. Natural
gas service is provided throughout southern California and portions of central
California through over 5.7 million active meters. Electric service is provided
throughout San Diego County and portions of Orange County, both in southern
California, through over 1.2 million active meters. Through other subsidiaries,
Sempra Energy also provides other energy-related products and services.
The information above concerning Sempra Energy and its subsidiaries is only
a summary and does not purport to be comprehensive. For additional information
concerning Sempra Energy and its subsidiaries, you should refer to the
information described under the caption "Where You Can Find More Information"
in this prospectus.
Sempra Energy's offices are located at 101 Ash Street, San Diego, California
92101 and the telephone number is (619) 696-2034.
5
USE OF PROCEEDS
Unless stated otherwise in the applicable prospectus supplement, we will use
the net proceeds from the sale of the offered securities for general corporate
purposes, including loans and advances to non-utility subsidiaries of Sempra
Energy.
RATIO OF PACIFIC ENTERPRISES EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of Pacific Enterprises' earnings to
fixed charges for each of the years in the five-year period ended December 31,
1999 and for each of the nine-month periods ended September 30, 1999 and 2000:
Nine Months
Ended
December 31, September 30,
------------------------ -------------
1995 1996 1997 1998 1999 1999 2000
---- ---- ---- ---- ---- ------ ------
Ratio of Pacific Enterprises' Earnings
to Fixed Charges...................... 3.15 3.82 3.89 3.82 5.00 4.73 6.08
RATIO OF SEMPRA ENERGY EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of Sempra Energy's earnings to
fixed charges for Sempra Energy for each of the years in the five-year period
ended December 31, 1999 and for each of the nine-month periods ended September
30, 1999 and 2000:
Nine Months
Ended
December 31, September 30,
------------------------ -------------
1995 1996 1997 1998 1999 1999 2000
---- ---- ---- ---- ---- ------ ------
Ratio of Sempra Energy's Earnings to
Fixed Charges ........................ 3.13 3.67 3.75 2.73 3.19 2.84 2.89
6
DESCRIPTION OF DEBT SECURITIES
Unless indicated differently in a prospectus supplement, the following is a
general description of the terms and provisions of the debt securities Pacific
Enterprises may offer and sell by this prospectus. The summary is not meant to
be a complete description. This prospectus and any accompanying prospectus
supplement will contain the material terms and conditions for each series of
debt securities. The accompanying prospectus supplement may add, update or
change the terms and conditions of a particular series of debt securities as
described in this prospectus. For more information about the debt securities
offered by Pacific Enterprises, please refer to:
. the indenture between Pacific Enterprises and U.S. Bank Trust National
Association, as trustee, relating to the issuance of each series of debt
securities by Pacific Enterprises; and
. the indenture among Pacific Enterprises, Sempra Energy and U.S. Bank
Trust National Association, as trustee, relating to each series of debt
securities issued by Pacific Enterprises and guaranteed by Sempra Energy.
Forms of these indentures are filed as exhibits to the registration
statement. The indentures listed above are sometimes collectively referred to
as the "indentures," and individually referred to as an "indenture." The
indentures are subject to and governed by the Trust Indenture Act of 1939, as
amended, and may be supplemented or amended from time to time following their
execution.
Each indenture gives us broad authority to set the particular terms of each
series of debt securities, including the right to modify certain of the terms
contained in the indenture. The particular terms of a series of debt securities
and the extent, if any, to which the particular terms of the issue modify the
terms of the applicable indenture will be described in any accompanying
prospectus supplement relating to such series of debt securities.
Each indenture contains the full legal text of the matters described in this
section. Because this section is a summary, it does not describe every aspect
of the debt securities or the indentures. This summary is subject to and
qualified in its entirety by reference to all the provisions of the applicable
indenture, including definitions of terms used in such indenture. We also
include references in parentheses to particular sections of the indentures.
Whenever we refer to particular sections or defined terms of the indentures in
this prospectus or in a prospectus supplement, these sections or defined terms
are incorporated by reference into this prospectus or in the prospectus
supplement. This summary also is subject to and qualified by reference to the
description of the terms of a particular series of debt securities described in
any prospectus supplement.
General
We may issue an unlimited amount of debt securities under the indentures in
one or more series. We are not required to issue all debt securities of one
series at the same time and, unless otherwise provided in a prospectus
supplement, we may reopen a series, without the consent of the holders of the
debt securities of that series, for issuances of additional debt securities of
that series.
The debt securities will be our senior unsecured obligations and may be
guaranteed by Sempra Energy (if so provided in the applicable prospectus
supplement) as to payment of principal, premium, if any, and interest as
described under the caption "--Guarantee of Sempra Energy; Holding Company
Structure" contained in this prospectus.
Prior to the issuance of each series of debt securities, the terms of the
particular securities will be specified in either a supplemental indenture
(including any pricing supplement) and a board resolution or in one or more
officers' certificates pursuant to a supplemental indenture or a board
resolution. We refer you to the applicable prospectus supplement for a
description of the following terms of each series of debt securities:
(a) the title of the debt securities;
7
(b) any limit upon the principal amount of the debt securities;
(c) the date or dates on which principal will be payable or how to
determine the dates;
(d) the rate or rates or method of determination of interest; the date from
which interest will accrue; the dates on which interest will be
payable, which we refer to as the "interest payment dates"; and any
record dates for the interest payable on the interest payment dates;
(e) any obligation or option of ours to redeem, purchase or repay debt
securities, or any option of the registered holder to require us to
redeem or repurchase debt securities, and the terms and conditions upon
which the debt securities will be redeemed, purchased or repaid;
(f) the denominations in which the debt securities will be issuable (if
other than denominations of $1,000 and any integral multiple thereof);
(g) whether the debt securities are to be issued in whole or in part in the
form of one or more global debt securities and, if so, the identity of
the depositary for the global debt securities;
(h) the form and terms of any guarantee of the debt securities; and
(i) any other terms of the debt securities that may be different from those
described below.
(See Section 301.)
Ranking
The debt securities will be our unsecured and unsubordinated obligations.
The indebtedness represented by the debt securities will rank equally with all
our other unsecured and unsubordinated debt. The debt securities are our
obligations exclusively, and are not the obligations of any of our
subsidiaries. We conduct substantially all of our operations primarily through
SoCalGas and substantially all of our consolidated assets are held by SoCalGas.
Accordingly, substantially all of our cash flow and our ability to meet our
obligations under any debt securities is largely dependent upon the earnings of
SoCalGas and the distribution or other payment of these earnings to us in the
form of dividends or loans or advances and repayment of any loans and advances
from us. SoCalGas is a separate and distinct legal entity and has no obligation
to make any funds available for payment of amounts due on any debt securities.
Because we conduct substantially all of our operations primarily through
SoCalGas and substantially all of our consolidated assets are held by SoCalGas,
the debt securities will be effectively subordinated to all existing and future
indebtedness and other liabilities of SoCalGas. Therefore, our rights and the
rights of our creditors, including the rights of the holders of any debt
securities guarantees, to participate in the distribution of assets of SoCalGas
upon the liquidation or reorganization of SoCalGas will be subject to the prior
claims of SoCalGas' creditors. To the extent that we may ourselves be a
creditor with recognized claims against SoCalGas, our claims would still be
effectively subordinated to any security interest in, or mortgages or other
liens on, the assets of SoCalGas and would be subordinated to any indebtedness
or other liabilities of SoCalGas that are senior to the claims held by us. We
expect to incur, and that SoCalGas will incur, substantial additional amounts
of indebtedness. SoCalGas had $940 million of debt outstanding at November 30,
2000.
Guarantee of Sempra Energy; Holding Company Structure
If so provided in the applicable prospectus supplement, Sempra Energy will
unconditionally guarantee the payment of principal of and any premium and
interest on the debt securities issued by us, when due and payable, whether at
the stated maturity date, by declaration of acceleration, call for redemption
or otherwise in accordance with the terms of the debt securities and the
applicable indenture. These guarantees are referred to as the "debt securities
guarantees" in this prospectus.
8
Sempra Energy also conducts its operations primarily through its
subsidiaries and substantially all of its consolidated assets are held by its
subsidiaries. Accordingly, the discussion above is equally applicable to Sempra
Energy and any debt securities guarantees it issues.
Payment of Debt Securities--Interest
Unless indicated differently in a prospectus supplement, we will pay
interest on the debt securities on each interest payment date by check mailed
to the person in whose name the debt securities are registered as of the close
of business on the regular record date relating to the interest payment date.
However, if we default in paying interest on a debt security, we will pay
defaulted interest in either of the two following ways:
. We will first propose to the trustee a payment date for the defaulted
interest. Next, the trustee will choose a special record date for
determining which registered holders are entitled to the payment. The
special record date will be between 10 and 15 days before the proposed
payment date. Finally, we will pay the defaulted interest on the payment
date to the registered holder of the debt security as of the close of
business on the special record date.
. Alternatively, we can propose to the trustee any other lawful manner of
payment that is consistent with the requirements of any securities
exchange on which the debt securities are listed for trading. If the
trustee thinks the proposal is practicable, payment will be made as
proposed.
(See Section 307.)
Payment of Debt Securities--Principal
We will pay principal of, premium, if any, and interest on the debt
securities at stated maturity, upon redemption or otherwise, upon presentation
of the debt securities at the office of the trustee, as the paying agent. Any
other paying agent initially designated for the debt securities of a particular
series will be named in the applicable prospectus supplement.
If any interest payment date, redemption date or the maturity date of the
debt securities is not a business day at any place of payment, then payment of
the principal, premium, if any, and interest may be made on the next business
day at the place of payment. In that case, no interest will accrue on the
amount payable for the period from and after the applicable interest payment
date, redemption date or maturity date, as the case may be.
We will pay principal of and any premium on the debt securities at stated
maturity, upon redemption or otherwise, upon presentation of the debt
securities at the office of the trustee, as paying agent. In our discretion, we
may appoint one or more additional paying agents and security registrars and
designate one or more additional places for payment and for registration of
transfer, but must at all times maintain a place of payment of the debt
securities and a place for registration of transfer of the debt securities in
the Borough of Manhattan, the City of New York. (See Section 1002.)
Form; Transfers; Exchanges
The debt securities will be issued:
(a) only in fully registered form;
(b) without interest coupons; and
(c) in denominations that are even multiples of $1,000.
9
You may have your debt securities divided into debt securities of smaller
denominations (of at least $1,000) or combined into debt securities of larger
denominations, as long as the total principal amount is not changed. This is
called an "exchange." (See Section 305.)
You may exchange or transfer debt securities at the office of the trustee.
The trustee acts as our agent for registering debt securities in the names of
holders and transferring debt securities. We may appoint another agent or act
as our own agent for this purpose. The entity performing the role of
maintaining the list of registered holders is called the "security registrar."
It will also perform transfers. (See Section 305.)
In our discretion, we may change the place for registration of transfer of
the debt securities and may remove and/or appoint one or more additional
security registrars. (See Sections 305 and 1002.)
There will be no service charge for any transfer or exchange of the debt
securities, but you may be required to pay a sum sufficient to cover any tax or
other governmental charge payable in connection with the transfer or exchange.
We may block the transfer or exchange of (a) debt securities during a period of
15 days prior to giving any notice of redemption or (b) any debt security
selected for redemption in whole or in part, except the unredeemed portion of
any debt security being redeemed in part. (See Section 305.)
Optional Redemption
All or a portion of the debt securities may be redeemed at our option at any
time or from time to time. The redemption price for the debt securities to be
redeemed on any redemption date will be equal to the greater of the following
amounts:
. 100% of the principal amount of the debt securities being redeemed on the
redemption date; or
. the sum of the present values of the remaining scheduled payments of
principal and interest on the debt securities being redeemed on that
redemption date (not including any portion of any payments of interest
accrued to the redemption date) discounted to the redemption date on a
semiannual basis at the Adjusted Treasury Rate (as defined below) plus a
number of basis points as set forth in any accompanying prospectus
supplement, as determined by the Reference Treasury Dealer (as defined
below),
plus, in each case, accrued and unpaid interest thereon to the redemption date.
Notwithstanding the foregoing, installments of interest on the debt securities
that are due and payable on interest payment dates falling on or prior to a
redemption date will be payable on the interest payment date to the registered
holders as of the close of business on the relevant record date according to
the debt securities and the applicable indenture. The redemption price will be
calculated on the basis of a 360-day year consisting of twelve 30-day months.
We will mail notice of any redemption at least 30 days but not more than 60
days before the redemption date to each registered holder of the debt
securities to be redeemed. Once notice of redemption is mailed, the debt
securities called for redemption will become due and payable on the redemption
date and at the applicable redemption price, plus accrued and unpaid interest
to the redemption date. If we elect to redeem all or a portion of the debt
securities, that redemption will not be conditional upon receipt by the paying
agent or the trustee of monies sufficient to pay the redemption price. (See
Section 1104.)
Unless we default in payment of the redemption price, on and after the
redemption date interest will cease to accrue on the debt securities or
portions thereof called for redemption. We will pay the redemption price and
any accrued interest once you surrender the debt security for redemption. (See
Section 1105.) If only part of a debt security is redeemed, the trustee will
deliver to you a new debt security of the same series for the remaining portion
without charge. (Section 1106.)
"Adjusted Treasury Rate" means, with respect to any redemption date, the
rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the
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Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Reference Treasury Dealer as having a maturity comparable to
the remaining term of the notes to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such notes.
"Comparable Treasury Price" means, with respect to any redemption date, (A)
the average of the Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (B) if the trustee receives fewer than three such Reference
Treasury Dealer Quotations, the average of all such Quotations, or (C) if the
trustee receives only one Reference Treasury Dealer Quotation, such Quotation.
"Reference Treasury Dealer" means (A) the underwriters referenced in any
applicable prospectus supplement; provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government securities dealer in New
York City (a "Primary Treasury Dealer"), we will substitute therefor another
Primary Treasury Dealer; and (B) any other Primary Treasury Dealer(s) selected
by the trustee after consultation with us.
"Reference Treasury Dealer Quotation" means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the trustee by such Reference Treasury Dealer at 5:00 p.m. (New York
City time) on the third business day preceding such redemption date.
Events of Default
An "event of default" occurs with respect to the debt securities of any
series if:
(a) any interest on any debt securities of the applicable series is not
paid within 30 days of the due date;
(b) any principal of or premium on any debt securities of the applicable
series is not paid on the due date;
(c) we breach a covenant or warranty, or, if such series is guaranteed,
Sempra Energy breaches a covenant or warranty (excluding covenants and
warranties solely applicable to another series of debt securities
issued under the applicable indenture) in the applicable indenture or
the debt securities or any debt securities guarantee, if applicable, of
the applicable series for 60 days after we or Sempra Energy, if
applicable, receive a written notice of default stating we are, or
Sempra Energy, if applicable is, in breach and requiring remedy of the
breach; the notice must be sent by either the trustee or registered
holders of at least 25% of the principal amount of the outstanding debt
securities of the affected series;
(d) a default occurs under any bond, note, debenture or other instrument
evidencing any indebtedness for money borrowed by us or, if such series
is guaranteed, Sempra Energy, excluding any of our or Sempra Energy's
subsidiaries (including a default with respect to any other series of
debt securities issued under the applicable indenture), or under any
mortgage, indenture or other instrument under which there may be issued
or by which there may be secured or evidenced any indebtedness for
money borrowed by us (or the payment of which is guaranteed by us or
Sempra Energy), excluding any of our or Sempra Energy's subsidiaries,
whether such indebtedness or guarantee exists on the date of the
applicable indenture or is issued or entered into following the date of
the applicable indenture, if:
(1)either:
. such default results from the failure to pay any such indebtedness
when due; or
11
. as a result of such default the maturity of such indebtedness has
been accelerated prior to its expressed maturity; and
(2) the principal amount of such indebtedness, together with the
principal amount of any other such indebtedness in default for
failure to pay any such indebtedness when due or the maturity of
which has been so accelerated, aggregates at least $25 million;
(e) we (excluding any of our subsidiaries), or Sempra Energy if it is a
guarantor of the debt securities of such series, file for bankruptcy or
other specified events in bankruptcy, insolvency, receivership or
reorganization occur; or
(f) any other event of default specified in the applicable prospectus
supplement for such series occurs.
(See Section 501.)
An event of default with respect to a particular series of debt securities
does not necessarily constitute an event of default with respect to the debt
securities of any other series issued under the applicable indenture.
Remedies
Acceleration
If an event of default occurs and is continuing with respect to any series
of debt securities, then either the trustee or the registered holders of at
least 25% in principal amount of the outstanding debt securities of that series
may declare the principal amount of all of the debt securities of that series,
together with accrued and unpaid interest thereon, to be due and payable
immediately. (See Section 502.)
Rescission of Acceleration
After the declaration of acceleration has been made with respect to any
series of debt securities and before the trustee has obtained a judgment or
decree for payment of the money due, the declaration and its consequences will
be rescinded and annulled, if:
(a) we pay or deposit with the trustee a sum sufficient to pay:
(1) all overdue interest on the debt securities of that series, other
than interest which has become due by declaration of acceleration;
(2) the principal of and any premium on the debt securities of that
series which have become due (otherwise than by the declaration of
acceleration) and overdue interest on these amounts;
(3) interest on overdue interest, other than interest which has become
due by declaration of acceleration, on the debt securities of that
series to the extent lawful; and
(4) all amounts due to the trustee under the applicable indenture; and
(b) all events of default with respect to the debt securities of that
series, other than the nonpayment of the principal and interest which
has become due solely by the declaration of acceleration, have been
cured or waived as provided in the applicable indenture.
(See Section 502.)
For more information as to waiver of defaults, see "--Waiver of Default and
of Compliance" below.
Control by Registered Holders; Limitations
If an event of default with respect to the debt securities of any series
occurs and is continuing, the registered holders of a majority in principal
amount of the outstanding debt securities of that series, voting as a
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single class, without regard to the holders of outstanding debt securities of
any other series that may also be in default, will have the right to direct the
time, method and place of:
(a) conducting any proceeding for any remedy available to the trustee with
respect to the debt securities of that series; and
(b) exercising any trust or power conferred on the trustee with respect to
the debt securities of that series.
These rights of registered holders to give directions are subject to the
following limitations:
(a) the registered holders' directions do not conflict with any law or the
applicable indenture; and
(b) the direction is not unduly prejudicial to the rights of holders of the
debt securities of that series who do not join in that action.
The trustee may also take any other action it deems proper which is
consistent with the registered holders' direction. (See Sections 512 and 603.)
In addition, each indenture provides that no registered holder of debt
securities of any series will have any right to institute any proceeding,
judicial or otherwise, with respect to the applicable indenture or for the
appointment of a receiver or for any other remedy thereunder unless:
(a) that registered holder has previously given the trustee written notice
of a continuing event of default;
(b) the registered holders of at least 25% in aggregate principal amount of
the outstanding debt securities of that series have made written
request to the trustee to institute proceedings with respect to that
event of default and have offered the trustee reasonable indemnity
against costs and liabilities incurred in complying with the request;
and
(c) for 60 days after receipt of the notice, the trustee has failed to
institute a proceeding and no direction inconsistent with the request
has been given to the trustee during the 60-day period by the
registered holders of a majority in aggregate principal amount of
outstanding debt securities of that series.
Furthermore, no registered holder will be entitled to institute any action if
and to the extent that the action would disturb or prejudice the rights of
other registered holders of debt securities. (See Section 507.)
However, each registered holder has an absolute and unconditional right to
receive payment when due and to bring a suit to enforce that right. (See
Section 508.)
Notice of Default
The trustee is required to give the registered holders of debt securities of
the affected series notice of any default under the applicable indenture to the
extent required by the Trust Indenture Act, unless the default has been cured
or waived; except that in the case of an event of default of the character
specified above in clause (c) under "--Events of Default," no notice shall be
given to such registered holders until at least 30 days after the occurrence of
the default. The Trust Indenture Act currently permits the trustee to withhold
notices of default (except for certain payment defaults) if the trustee in good
faith determines the withholding of the notice is in the interests of the
registered holders. (See Section 602.)
We will furnish the trustee with an annual statement as to our compliance
with the conditions and covenants in the applicable indenture.
Waiver of Default and of Compliance
The registered holders of a majority in aggregate principal amount of the
outstanding debt securities of any series, voting as a single class, without
regard to the holders of outstanding debt securities of any other series, may
waive, on behalf of all registered holders of the debt securities of that
series, any past default under
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the applicable indenture, except a default in the payment of principal, premium
or interest, or with respect to compliance with certain provisions of the
applicable indenture that cannot be amended without the consent of the
registered holder of each outstanding debt security of that series. (See
Section 513.)
Compliance with certain covenants in the applicable indenture or otherwise
provided with respect to debt securities of any series may be waived by the
registered holders of a majority in aggregate principal amount of the debt
securities of such series. (See Section 1006.)
Consolidation, Merger and Conveyance of Assets as an Entirety; No Financial
Covenants
We, and Sempra Energy if it is a guarantor of the debt securities, have
agreed not to consolidate or merge with or into any other entity, or to sell,
transfer, lease or otherwise convey our properties and assets as an entirety or
substantially as an entirety to any entity, unless:
(a) we are, or Sempra Energy if it is a guarantor of the debt securities
is, the continuing entity (in the case of a merger) or the successor
entity formed by such consolidation or into which we are, or Sempra
Energy if it is a guarantor of the debt securities is, merged or which
acquires by sale, transfer, lease or other conveyance our or Sempra
Energy's properties and assets, as an entirety or substantially as an
entirety, is a corporation organized and existing under the laws of the
United States of America or any State thereof or the District of
Columbia, and expressly assumes, by supplemental indenture, (i) the due
and punctual payment of the principal, premium and interest on all the
debt securities and the performance of all of the covenants under the
applicable indenture and (ii) in the case of Sempra Energy, the due and
punctual payment of all amounts under any debt securities guarantees as
provided in any applicable prospectus supplement; and
(b) immediately after giving effect to the transaction, no event of
default, and no event which after notice or lapse of time or both would
become an event of default, has or will have occurred and be
continuing.
Except as set forth in the applicable prospectus supplement, neither the
applicable indenture nor the debt securities guarantee contains any financial
or other similar restrictive covenants. (See Section 801.)
Modification of Indenture
Without Registered Holder Consent. Without the consent of any registered
holders of debt securities of any series, we, Sempra Energy and the trustee may
enter into one or more supplemental indentures for any of the following
purposes:
(a) to evidence the succession of another entity to us;
(b) to add one or more covenants for the benefit of the holders of all or
any series of debt securities or to surrender any right or power
conferred upon us;
(c) to add any additional events of default for all or any series of debt
securities;
(d) to change or eliminate any provision of the applicable indenture so
long as the change or elimination does not apply to any debt
securities entitled to the benefit of such provision or to add any new
provision to the applicable indenture (in addition to the provisions
which may otherwise be added to the applicable indenture pursuant to
the other clauses of this paragraph) so long as the addition does not
apply to any outstanding debt securities;
(e) to provide security for the debt securities of any series;
(f) to establish the form or terms of debt securities of any series, as
permitted by the applicable indenture;
(g) to evidence and provide for the acceptance of appointment of a
separate or successor trustee; or
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(h) to cure any ambiguity, defect or inconsistency or to make any other
changes with respect to any series of debt securities that do not
adversely affect the interests of the holders of debt securities of
that series in any material respect.
(See Section 901.)
With Registered Holder Consent. Subject to the following sentence, we,
Sempra Energy and the trustee may, with some exceptions, amend or modify the
applicable indenture with the consent of the registered holders of at least a
majority in aggregate principal amount of the debt securities of each series
affected by the amendment or modification. However, no amendment or
modification may, without the consent of the registered holder of each
outstanding debt security affected thereby:
(a) change the stated maturity of the principal or interest on any debt
security or reduce the principal amount, interest or premium payable or
change any place of payment where or the currency in which any debt
security is payable, or impair the right to bring suit to enforce any
payment;
(b) reduce the percentages of registered holders whose consent is required
for any supplemental indenture or waiver;
(c) modify or affect in any manner the terms and conditions of the
obligations of Sempra Energy, if any series of debt securities is
guaranteed by Sempra Energy, in respect of the due and punctual payment
of the principal of, or premium, if any or interest on any such debt
securities; or
(d) modify certain of the applicable provisions in the applicable indenture
relating to supplemental indentures and waivers of certain covenants
and past defaults.
A supplemental indenture which changes or eliminates any provision of the
applicable indenture expressly included solely for the benefit of holders of
debt securities of one or more particular series will be deemed not to affect
the interests under the applicable indenture of the holders of debt securities
of any other series. (See Section 902.)
Defeasance
The indentures provide, unless the terms of the prospectus supplement for a
particular series of debt securities provides otherwise, that we and Sempra
Energy may, upon satisfying several conditions, be discharged from our
respective obligations, with some exceptions, with respect to any series of
debt securities, which we refer to as "defeasance."
One condition that must be satisfied is the irrevocable deposit with the
trustee, in trust, of money and/or government obligations which, through the
scheduled payment of principal and interest on those obligations, would provide
sufficient funds to pay the principal of and any premium and interest on those
debt securities on the maturity dates of the payments or upon redemption.
In addition, we will be required to deliver an opinion of counsel to the
effect that a holder of debt securities will not recognize income, gain or loss
for federal income tax purposes as a result of the defeasance and will be
subject to federal income tax on the same amounts, at the same times and in the
same manner as if that defeasance had not occurred. The opinion of counsel must
be based upon a ruling of the Internal Revenue Service or a change in law after
the date of the applicable indenture. (See Article XIII.)
Satisfaction and Discharge
The applicable indenture will cease to be of further effect with respect to
any series of debt securities, and we, and Sempra Energy if any such series is
guaranteed by it, will be deemed to have satisfied and discharged all of our
respective obligations under the applicable indenture, except as noted below,
when:
. all outstanding debt securities of such series have become due or will
become due within one year at their stated maturity or on a redemption
date; and
15
. funds that are sufficient to pay and discharge all remaining indebtedness
on the outstanding debt securities of such series have been deposited
with the trustee, in trust.
We, and Sempra Energy if any such series is guaranteed by it, will remain
obligated to pay all other amounts due under the applicable indenture and to
perform certain ministerial tasks as described in the applicable indenture.
(See Section 401.)
Resignation and Removal of the Trustee; Deemed Resignation
The trustee with respect to any series of debt securities may resign at any
time by giving written notice to us. The trustee may also be removed with
respect to the debt securities of any series by act of the registered holders
of a majority in principal amount of the then outstanding debt securities of
such series. No resignation or removal of the trustee and no appointment of a
successor trustee will become effective until the acceptance of appointment by
a successor trustee in accordance with the requirements of the applicable
indenture. Under certain circumstances, we may appoint a successor trustee with
respect to such series of debt securities and if the successor trustee accepts,
the trustee will be deemed to have resigned. (See Section 610.)
Miscellaneous Provisions
Each indenture provides that certain debt securities, including those for
which payment or redemption money has been deposited or set aside in trust as
described under "--Satisfaction and Discharge" above, will not be deemed to be
"outstanding" in determining whether the registered holders of the requisite
principal amount of the outstanding debt securities have given or taken any
demand, direction, consent or other action under the applicable indenture as of
any date, or are present at a meeting of registered holders for quorum
purposes. (See Section 101.)
We will be entitled to set any day as a record date for the purpose of
determining the registered holders of outstanding debt securities of any series
entitled to give or take any demand, direction, consent or other action under
the applicable indenture, in the manner and subject to the limitations provided
in the applicable indenture. In certain circumstances, the trustee also will be
entitled to set a record date for action by registered holders of any series of
outstanding debt securities. If a record date is set for any action to be taken
by registered holders of particular debt securities, the action may be taken
only by persons who are registered holders of the respective debt securities on
the record date. (See Section 104.)
Governing Law
Each indenture and the debt securities will be governed by and construed in
accordance with the laws of the State of New York. (See Section 112.)
16
GLOBAL SECURITIES
Book-Entry, Delivery and Form
The securities initially will be issued in book-entry form and represented
by one or more global notes or global securities (collectively, "global
securities"). The global securities will be deposited with, or on behalf of,
DTC, New York, New York, as Depositary, and registered in the name of Cede &
Co., the nominee of DTC. Unless and until it is exchanged for individual
certificates evidencing securities under the limited circumstances described
below, a global security may not be transferred except as a whole by the
Depositary to its nominee or by the nominee to the Depositary, or by the
Depositary or its nominee to a successor Depositary or to a nominee of the
successor Depositary.
DTC has told us that it is:
. a limited-purpose trust company organized under the New York Banking Law;
. a "banking organization" within the meaning of the New York Banking Law;
. a member of the Federal Reserve System;
. a "clearing corporation" within the meaning of the New York Uniform
Commercial Code; and
. a "clearing agency" registered pursuant to the provisions of Section 17A
of the Securities Exchange Act of 1934.
DTC holds securities that its participants deposit with DTC. DTC also
facilitates the settlement among its participants of securities transactions,
including transfers and pledges, in deposited securities through electronic
computerized book-entry changes in participants' accounts, which eliminates the
need for physical movement of securities certificates. "Direct participants" in
DTC include securities brokers and dealers, including underwriters, banks,
trust companies, clearing corporations and other organizations. DTC is owned by
a number of its direct participants and by the New York Stock Exchange, Inc.,
the American Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others, which we
sometimes refer to as "indirect participants," that clear transactions through
or maintain a custodial relationship with a direct participant either directly
or indirectly. The rules applicable to DTC and its participants are on file
with the SEC.
Purchases of securities within the DTC system must be made by or through
direct participants, which will receive a credit for those securities on DTC's
records. The ownership interest of the actual purchaser of a security, which we
sometimes refer to as a "beneficial owner," is in turn recorded on the direct
and indirect participants' records. Beneficial owners of securities will not
receive written confirmation from DTC of their purchases. However, beneficial
owners are expected to receive written confirmations providing details of their
transactions, as well as periodic statements of their holdings, from the direct
or indirect participants through which they purchased securities. Transfers of
ownership interests in global securities are to be accomplished by entries made
on the books of participants acting on behalf of beneficial owners. Beneficial
owners will not receive certificates representing their ownership interests in
the global securities except under the limited circumstances described below.
To facilitate subsequent transfers, all global securities deposited with DTC
will be registered in the name of DTC's nominee, Cede & Co. The deposit of
securities with DTC and their registration in the name of Cede & Co. will not
change the beneficial ownership of the securities. DTC has no knowledge of the
actual beneficial owners of the securities. DTC's records reflect only the
identity of the direct participants to whose accounts the securities are
credited, which may or may not be the beneficial owners. The participants are
responsible for keeping account of their holdings on behalf of their customers.
So long as the securities are in book-entry form, you will receive payments
and may transfer securities only through the facilities of the Depositary and
its direct and indirect participants. We will maintain an office
17
or agency in the Borough of Manhattan, the City of New York where notices and
demands in respect of the securities and the applicable indenture may be
delivered to us and where certificated securities may be surrendered for
payment, registration of transfer or exchange. That office or agency will
initially be the office of the trustee which is currently located at 100 Wall
Street, Suite 1600, New York, New York 10005.
Conveyance of notices and other communications by DTC to direct
participants, by direct participants to indirect participants and by direct
participants and indirect participants to beneficial owners will be governed by
arrangements among them, subject to any legal requirements in effect from time
to time.
Redemption notices will be sent to DTC or its nominee. If less than all of
the securities of a particular series are being redeemed, DTC will determine
the amount of the interest of each direct participant in the securities of such
series to be redeemed in accordance with DTC's procedures.
In any case where a vote may be required with respect to securities of a
particular series, neither DTC nor Cede & Co. will give consents for or vote
the global securities. Under its usual procedures, DTC will mail an omnibus
proxy to us as soon as possible after the record date. The omnibus proxy
assigns the consenting or voting rights of Cede & Co. to those direct
participants to whose accounts the securities of such series are credited on
the record date identified in a listing attached to the omnibus proxy.
So long as securities are in book-entry form, we will make payments on those
securities to the Depositary or its nominee, as the registered owner of such
securities, by wire transfer of immediately available funds. If securities are
issued in definitive certificated form under the limited circumstances
described below, we will have the option of paying interest by check mailed to
the addresses of the persons entitled to payment or by wire transfer to bank
accounts in the United States designated in writing to the trustee at least 15
days before the applicable payment date by the persons entitled to payment.
Principal and interest payments on the securities will be made to Cede &
Co., as nominee of DTC. DTC's practice is to credit direct participants'
accounts on the relevant payment date unless DTC has reason to believe that it
will not receive payment on the payment date. Payments by direct and indirect
participants to beneficial owners will be governed by standing instructions and
customary practices, as is the case with securities held for the account of
customers in bearer form or registered in "street name." Those payments will be
the responsibility of participants and not of DTC or us, subject to any legal
requirements in effect from time to time. Payment of principal and interest to
Cede & Co. is our responsibility, disbursement of payments to direct
participants is the responsibility of DTC and disbursement of payments to the
beneficial owners is the responsibility of direct and indirect participants.
Except under the limited circumstances described below, purchasers of
securities will not be entitled to have securities registered in their names
and will not receive physical delivery of securities. Accordingly, each
beneficial owner must rely on the procedures of DTC and its participants to
exercise any rights under the securities and the applicable indenture.
The laws of some jurisdictions may require that some purchasers of
securities take physical delivery of securities in definitive form. Those laws
may impair the ability to transfer or pledge beneficial interests in
securities.
DTC is under no obligation to provide its services as Depositary for the
securities and may discontinue providing its services at any time. Neither we
nor the trustee will have any responsibility for the performance by DTC or its
direct participants or indirect participants under the rules and procedures
governing DTC.
As noted above, beneficial owners of a particular series of securities
generally will not receive certificates representing their ownership interests
in those securities. However, if:
. DTC notifies us that it is unwilling or unable to continue as a
Depositary for the global security or securities representing such series
of securities or if DTC ceases to be a clearing agency registered
18
under the Securities Exchange Act at a time when it is required to be
registered and a successor Depositary is not appointed within 90 days of
the notification to us or of our becoming aware of DTC's ceasing to be so
registered, as the case may be;
. we determine, in our sole discretion, not to have such securities
represented by one or more global securities; or
. an event of default under the applicable indenture has occurred and is
continuing with respect to such securities,
we will prepare and deliver certificates for such securities in exchange for
beneficial interests in the global securities. Any beneficial interest in a
global security that is exchangeable under the circumstances described in the
preceding sentence will be exchangeable for securities in definitive
certificated form registered in the names that the Depositary directs. It is
expected that these directions will be based upon directions received by the
Depositary from its participants with respect to ownership of beneficial
interests in the global securities.
We have obtained the information in this section and elsewhere in this
prospectus concerning DTC and DTC's book-entry system from sources that are
believed to be reliable, but we do not take responsibility for the accuracy of
this information.
EXPERTS
The consolidated financial statements and the related financial statement
schedules incorporated in this prospectus by reference from each of Pacific
Enterprises' and Sempra Energy's Annual Reports on Form 10-K for the year ended
December 31, 1999 have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their reports, which are incorporated herein by
reference and have been so incorporated in reliance upon the reports of such
firm given upon their authority as experts in accounting and auditing.
VALIDITY OF THE SECURITIES
Latham & Watkins, Los Angeles, California, will pass upon certain legal
matters relating to the issuance and sale of the securities on behalf of Sempra
Energy and Pacific Enterprises. Gary Kyle, Esq., Chief Corporate Counsel of
Sempra Energy, will pass upon the validity of the securities and various other
legal matters relating to the issuance and sale of the securities. Brown & Wood
LLP, San Francisco, California, will pass upon the validity of the securities
for any underwriters or agents.
19
PLAN OF DISTRIBUTION
We may sell the securities described in this prospectus from time to time in
one or more transactions:
(a) to purchasers directly;
(b) to underwriters for public offering and sale by them;
(c) through agents;
(d) through dealers; or
(e) through a combination of any of the foregoing methods of sale.
We may distribute the securities from time to time in one or more
transactions at:
(a) a fixed price or prices, which may be changed;
(b) market prices prevailing at the time of sale;
(c) prices related to such prevailing market prices; or
(d) negotiated prices.
Direct Sales
We may sell the securities directly to institutional investors or others who
may be deemed to be underwriters within the meaning of the Securities Act with
respect to any resale of the securities. A prospectus supplement will describe
the terms of any sale of securities we are offering hereunder.
To Underwriters
The applicable prospectus supplement will name any underwriter involved in a
sale of securities. Underwriters may offer and sell securities at a fixed price
or prices, which may be changed, or from time to time at market prices or at
negotiated prices. Underwriters may be deemed to have received compensation
from us from sales of securities in the form of underwriting discounts or
commissions and may also receive commissions from purchasers of securities for
whom they may act as agent.
Underwriters may sell securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions (which may be changed from time to time)
from the purchasers for whom they may act as agent.
Unless otherwise provided in a prospectus supplement, the obligations of any
underwriters to purchase securities or any series of securities will be subject
to certain conditions precedent, and the underwriters will be obligated to
purchase all such securities if any are purchased.
Through Agents and Dealers
We will name any agent involved in a sale of securities, as well as any
commissions payable by us to such agent, in a prospectus supplement. Unless we
indicate differently in the prospectus supplement, any such agent will be
acting on a reasonable efforts basis for the period of its appointment.
If we utilize a dealer in the sale of the securities being offered pursuant
to this prospectus, we will sell the securities to the dealer, as principal.
The dealer may then resell the securities to the public at varying prices to be
determined by the dealer at the time of resale.
20
Delayed Delivery Contracts
If we so specify in the applicable prospectus supplement, we will authorize
underwriters, dealers and agents to solicit offers by certain institutions to
purchase securities pursuant to contracts providing for payment and delivery on
future dates. Such contracts will be subject to only those conditions set forth
in the applicable prospectus supplement.
The underwriters, dealers and agents will not be responsible for the
validity or performance of the contracts. We will set forth in the prospectus
supplement relating to the contracts the price to be paid for the securities,
the commissions payable for solicitation of the contracts and the date in the
future for delivery of the securities.
General Information
Underwriters, dealers and agents participating in a sale of the securities
may be deemed to be underwriters as defined in the Securities Act, and any
discounts and commissions received by them and any profit realized by them on
resale of the securities may be deemed to be underwriting discounts and
commissions, under the Securities Act. We may have agreements with
underwriters, dealers and agents to indemnify them against certain civil
liabilities, including liabilities under the Securities Act, and to reimburse
them for certain expenses.
Underwriters or agents and their associates may be customers of, engage in
transactions with or perform services for us or our affiliates in the ordinary
course of business.
Unless we indicate differently in a prospectus supplement, we will not list
the securities on any securities exchange. The securities will be a new issue
of securities with no established trading market. Any underwriters that
purchase securities for public offering and sale may make a market in such
securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. We make no assurance
as to the liquidity of or the trading markets for any securities.
21
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Securities and Exchange Commission registration fee.............. $125,000
Printing expenses................................................ 150,000
Trustee fees and expenses........................................ 75,000
Legal fees and expenses.......................................... 100,000
Accounting fees and expenses..................................... 100,000
Blue Sky fees and expenses....................................... 50,000
Rating Agency fees............................................... 250,000
Miscellaneous.................................................... 50,000
--------
Total.......................................................... $900,000
========
All of the above except the Securities and Exchange Commission registration
fee are estimated.
Item 15. Indemnification of Officers and Directors.
Section 317 of the Corporations Code of the State of California permits a
corporation to provide indemnification to its directors and officers under
certain circumstances. The Pacific Enterprises Restated Articles of
Incorporation and Bylaws and the Sempra Energy Amended and Restated Articles of
Incorporation and Amended and Restated Bylaws eliminate the liability of
directors for monetary damages to the fullest extent permissible under
California law and provide that indemnification for liability for monetary
damages incurred by directors, officers and other agents of Pacific Enterprises
and Sempra Energy shall be allowed, subject to certain limitations, in excess
of the indemnification otherwise permissible under California law. In addition,
Sempra Energy has indemnification agreements with each of the officers and
directors of Sempra Energy and Pacific Enterprises that provide for
indemnification for monetary damages to the fullest extent permissible under
California law. Sempra Energy maintains liability insurance and is also insured
against loss for which it may be required or permitted by law to indemnify the
directors and officers of Sempra Energy and Pacific Enterprises for their
related acts.
The directors and officers of Pacific Enterprises and Sempra Energy are
covered by insurance policies indemnifying them against certain liabilities,
including certain liabilities arising under the Securities Act, which might be
incurred by them in such capacities and against which they cannot be
indemnified by Pacific Enterprises and Sempra Energy.
Item 16. Exhibits.
1.1 Form of Underwriting Agreement (Debt Securities--Pacific Enterprises).
1.2 Form of Underwriting Agreement (Guaranteed Debt Securities--Pacific
Enterprises).*
3.1 Restated Articles of Incorporation of Pacific Enterprises (Incorporated
by reference from the Annual Report on Form 10-K-405 filed March 28,
1997 (Exhibit 3.01)).
3.2 Bylaws of Pacific Enterprises effective March 2, 1999 (Incorporated by
reference from the Annual Report on Form 10-K filed March 31, 1999
(Exhibit 3.02)).
3.3 Amended and Restated Articles of Incorporation of Sempra Energy
(Incorporated by reference from the Registration Statement on Form S-3
File No. 333-51309 dated April 29, 1998 (Exhibit 3.1)).
3.4 Amended and Restated Bylaws of Sempra Energy effective May 26, 1998
(Incorporated by reference from the Registration Statement on Form S-8
File No. 333-56161 dated June 5, 1998 (Exhibit 3.2)).
II-1
4.1 Form of Indenture for Senior Debt Securities (Pacific Enterprises).
4.2 Form of Indenture for Senior Debt Securities (Pacific Enterprises and Sempra Energy, as Guarantor).
4.3 Form of Senior Note--Pacific Enterprises (included in Exhibit 4.1).
4.4 Form of Senior Note--Pacific Enterprises and Sempra Energy, as Guarantor (included in Exhibit 4.2).
5.1 Opinion of Gary Kyle, Esq.
12.1 Statement regarding the computation of Pacific Enterprises' ratio of earnings to fixed charges for
the years ended December 31, 1999, 1998, 1997, 1996 and 1995 and nine-month periods ended September
30, 2000 and September 30, 1999.
12.2 Statement regarding the computation of Sempra Energy's ratio of earnings to fixed charges for the
years ended December 31, 1999, 1998, 1997, 1996 and 1995 and nine-month periods ended September 30,
2000 and September 30, 1999.
23.1 Consent of Gary Kyle, Esq. (included in Exhibit 5.1).
23.2 Independent Auditors' Consent (Deloitte & Touche LLP).
24.1 Powers of Attorney (included on pages II-4 and 6).
25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of U.S. Bank
Trust National Association, as Trustee under the Indenture (Senior Debt Securities--Pacific
Enterprises).
- --------
* To be filed by amendment.
Item 17. Undertakings.
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Securities and Exchange Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
Registration Statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to the Securities
and Exchange Commission by the registrants pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
II-2
(3) To remove from registration by means of post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of Pacific Enterprises' or Sempra Energy's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be deemed to
be a new registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(5) To file an application for the purpose of determining the
eligibility of the trustees to act under subsection (a) of Section 310 of
the Trust Indenture Act in accordance with the rules and regulations
prescribed by the Securities and Exchange Commission under Section
305(b)(2) of the Securities Act.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrants pursuant to the provisions described under Item 15 above, or
otherwise, the registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by a registrant of expenses incurred or paid by a director, officer
or controlling person in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, such registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Pacific Enterprises certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Diego, and State of California, on the 29th
day of December, 2000.
PACIFIC ENTERPRISES
/s/ Stephen L. Baum
By: _________________________________
Stephen L. Baum
Chairman, Chief Executive Officer
and President
POWER OF ATTORNEY
Each director and/or officer of the registrant whose signature appears below
hereby appoints Stephen L. Baum, John R. Light and Neal E. Schmale, and each of
them severally, as his true and lawful attorney-in-fact and agent to sign in
his name and behalf, in any and all capacities stated below, and to file with
the Securities and Exchange Commission, any and all amendments, including post-
effective amendments and any registration statement for the same offering that
is to be effective under Rule 462(b) of the Securities Act, to this
registration statement, and the registrant hereby also appoints each such
person as its attorney-in-fact and agent with like authority to sign and file
any such amendments in its name and behalf.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
registration statement has been signed below by the following persons in the
capacities indicated on the 29th day of December, 2000.
Signature Title
--------- -----
/s/ Stephen L. Baum Principal Executive Officer;
____________________________________ Chairman, Chief Executive
Stephen L. Baum Officer, President and
Director
/s/ Neal E. Schmale Principal Financial Officer;
____________________________________ Executive Vice President
Neal E. Schmale and Chief Financial Officer
/s/ Frank H. Ault Principal Accounting
____________________________________ Officer; Vice President and
Frank H. Ault Controller
Director
____________________________________
Hyla H. Bertea
/s/ Ann L. Burr Director
____________________________________
Ann L. Burr
Director
____________________________________
Herbert L. Carter
II-4
Signature Title
--------- -----
/s/ Richard A. Collato Director
____________________________________
Richard A. Collato
/s/ Daniel W. Derbes Director
____________________________________
Daniel W. Derbes
/s/ Wilford D. Godbold, Jr. Director
____________________________________
Wilford D. Godbold, Jr.
Director
____________________________________
William D. Jones
/s/ Ralph R. Ocampo Director
____________________________________
Ralph R. Ocampo
Director
____________________________________
William G. Ouchi
/s/ Richard J. Stegemeier Director
____________________________________
Richard J. Stegemeier
/s/ Thomas C. Stickel Director
____________________________________
Thomas C. Stickel
Director
____________________________________
Diana L. Walker
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Sempra Energy certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Diego, and State of California, on the 29th
day of December, 2000.
SEMPRA ENERGY
/s/ Stephen L. Baum
By: _________________________________
Stephen L. Baum
Chairman, Chief Executive Officer
and President
POWER OF ATTORNEY
Each director and/or officer of the registrant whose signature appears below
hereby appoints Stephen L. Baum, John R. Light and Neal E. Schmale, and each of
them severally, as his true and lawful attorney-in-fact and agent to sign in
his name and behalf, in any and all capacities stated below, and to file with
the Securities and Exchange Commission, any and all amendments, including post-
effective amendments and any registration statement for the same offering that
is to be effective under Rule 462(b) of the Securities Act, to this
registration statement, and the registrant hereby also appoints each such
person as its attorney-in-fact and agent with like authority to sign and file
any such amendments in its name and behalf.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
registration statement has been signed below by the following persons in the
capacities indicated on the 29th day of December, 2000.
Signature Title
--------- -----
/s/ Stephen L. Baum Principal Executive Officer;
____________________________________ Chairman, Chief Executive
Stephen L. Baum Officer, President and
Director
/s/ Neal E. Schmale Principal Financial Officer;
____________________________________ Executive Vice President
Neal E. Schmale and Chief Financial Officer
/s/ Frank H. Ault Principal Accounting
____________________________________ Officer; Vice President and
Frank H. Ault Controller
Director
____________________________________
Hyla H. Bertea
/s/ Ann L. Burr Director
____________________________________
Ann L. Burr
Director
____________________________________
Herbert L. Carter
II-6
Signature Title
--------- -----
/s/ Richard A. Collato Director
____________________________________
Richard A. Collato
/s/ Daniel W. Derbes Director
____________________________________
Daniel W. Derbes
/s/ Wilford D. Godbold, Jr. Director
____________________________________
Wilford D. Godbold, Jr.
Director
____________________________________
William D. Jones
/s/ Ralph R. Ocampo Director
____________________________________
Ralph R. Ocampo
Director
____________________________________
William G. Ouchi
/s/ Richard J. Stegemeier Director
____________________________________
Richard J. Stegemeier
/s/ Thomas C. Stickel Director
____________________________________
Thomas C. Stickel
Director
____________________________________
Diana L. Walker
II-7
PACIFIC ENTERPRISES
SEMPRA ENERGY
EXHIBIT INDEX
Exhibit
No. Description
------- -----------
1.1 Form of Underwriting Agreement (Debt Securities--Pacific Enterprises).
1.2 Form of Underwriting Agreement (Guaranteed Debt Securities--Pacific
Enterprises).*
3.1 Restated Articles of Incorporation of Pacific Enterprises
(Incorporated by reference from the Annual Report on Form 10-K-405
filed March 28, 1997 (Exhibit 3.01)).
3.2 Bylaws of Pacific Enterprises effective March 2, 1999 (Incorporated by
reference from the Annual Report on Form 10-K filed March 31, 1999
(Exhibit 3.02)).
3.3 Amended and Restated Articles of Incorporation of Sempra Energy
(Incorporated by reference from the Registration Statement on Form S-
3 File No. 333-51309 dated April 29, 1998 (Exhibit 3.1)).
3.4 Amended and Restated Bylaws of Sempra Energy effective May 26, 1998
(Incorporated by reference from the Registration Statement on Form S-
8 File No. 333-56161 dated June 5, 1998 (Exhibit 3.2)).
4.1 Form of Indenture for Senior Debt Securities (Pacific Enterprises).
4.2 Form of Indenture for Senior Debt Securities (Pacific Enterprises and
Sempra Energy, as Guarantor).
4.3 Form of Senior Note--Pacific Enterprises (included in Exhibit 4.1).
4.4 Form of Senior Note--Pacific Enterprises and Sempra Energy, as
Guarantor (included in Exhibit 4.2).
5.1 Opinion of Gary Kyle, Esq.
12.1 Statement regarding the computation of Pacific Enterprises' ratio of
earnings to fixed charges for the years ended December 31, 1999,
1998, 1997, 1996 and 1995 and nine-month periods ended September 30,
2000 and September 30, 1999.
12.2 Statement regarding the computation of Sempra Energy's ratio of
earnings to fixed charges for the years ended December 31, 1999,
1998, 1997, 1996 and 1995 and nine-month periods ended September 30,
2000 and September 30, 1999.
23.1 Consent of Gary Kyle, Esq. (included in Exhibit 5.1).
23.2 Independent Auditors' Consent (Deloitte & Touche LLP).
24.1 Powers of Attorney (included on pages II-4 and 6).
25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of U.S. Bank Trust National Association, as Trustee
under the Indenture (Senior Debt Securities--Pacific Enterprises).
- --------
* To be filed by amendment.
Exhibit 1.1
Pacific Enterprises
Debt Securities
__________________________
Underwriting Agreement
__________________________
___________, 2001
To the Representatives of the
several Underwriters named in
the respective Pricing Agreements
hereinafter described
Ladies and Gentlemen:
From time to time, Pacific Enterprises, a California corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase any of the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of
such Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. _________) (the
"Initial Registration Statement") in respect of the Securities and certain other
securities has been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any post-effective
amendment thereto, each in the form heretofore delivered or to be delivered to
the Representatives and, excluding exhibits to the Initial Registration
Statement, but including all documents incorporated by reference in the
prospectus contained therein, to the Representatives for each of the other
Underwriters, have been declared effective by the Commission in such form; other
than a registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which , if so filed, became
effective upon filing, no other document with respect to the Initial
Registration Statement or any document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission (other than
documents filed after the filing date of the Initial Registration Statement
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
prospectuses filed pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Act, each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed with the
Commission pursuant to Rule 424(a) under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement, any post-effective amendment thereto and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and the documents incorporated
by reference in the prospectus contained in the Initial Registration Statement
at the time such part of the Initial Registration Statement became effective but
excluding any Form T-1, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; the prospectus
relating to the Securities, in the form in which it has most recently been
filed, or transmitted for filing, with the Commission on or prior to the date of
this Agreement, being hereinafter called the "Prospectus"; any reference herein
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or supplement to
any Preliminary Prospectus or the Prospectus shall be deemed
2
to refer to and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Exchange Act, and
incorporated by reference in such Preliminary Prospectus or Prospectus, as the
case may be, as of the date of filing of such document; any reference to any
amendment to the Initial Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Sections 13(a) or
15(d) of the Exchange Act after the effective date of the Initial Registration
Statement that is incorporated by reference in the Registration Statement; and
any reference to the Prospectus shall be deemed to refer to the Prospectus as
amended or supplemented in relation to the applicable Designated Securities in
the form in which it is filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or supplemented
relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder and the Registration
Statement conforms, and any further amendments or supplements to the
Registration Statement will conform, in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission thereunder and
do not and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing date as to
the Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or supplemented
relating to such Securities;
3
(d) The Company and its subsidiaries taken as a whole, have not
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, otherwise than as set forth
or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of California, with
power and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, except where the
failure to be so qualified would not subject it to material liability or
disability; and Southern California Gas Company (the "Subsidiary") has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of California;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and non-
assessable; and all of the issued shares of capital stock of the Subsidiary have
been duly and validly authorized and issued, are fully paid and non-assessable
and are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(g) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement and the Pricing
Agreement with respect to such Designated Securities, such Designated Securities
will have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company entitled to the
benefits provided by the Indenture; the Indenture has been duly authorized and
duly qualified under the Trust Indenture Act and, at the Time of Delivery for
such Designated Securities (as defined in Section 4 hereof), the Indenture will
constitute a valid and legally binding instrument, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
receivership, liquidation, fraudulent conveyance, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles; and the
Indenture conforms, and the Designated Securities will conform, to the
descriptions thereof contained in the Prospectus as amended or supplemented with
respect to such Designated Securities;
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Pricing Agreement, and the consummation of the transactions
herein and therein contemplated will not
4
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any material contract, indenture,
mortgage, deed of trust, loan agreement, note, lease or other agreement or
instrument to which the Company or the Subsidiary is a party or by which the
Company or the Subsidiary is bound or to which any of the material properties or
assets of the Company or the Subsidiary is subject, nor will such action result
in any violation of the provisions of the Articles of Incorporation or By-laws
of the Company or the Subsidiary or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the Company
or the Subsidiary or any of their respective material properties; and no
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the issue and
sale of the Securities or the consummation by the Company of the transactions
contemplated by this Agreement or any Pricing Agreement or the Indenture, except
such as have been obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriters;
(i) The statements set forth in the Prospectus as amended or
supplemented under the captions "Description of Debt Securities", "Description
of Notes" or "Description of Debentures" (or similar caption), insofar as they
purport to constitute a summary of the terms of the Securities or the Indenture,
and under the captions "Plan of Distribution" and "Underwriting", insofar as
they purport to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair in all material respects;
(j) Neither the Company nor the Subsidiary is (i) in violation of its
Articles of Incorporation or By-laws or (ii) in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan agreement,
note, lease or other agreement or instrument to which it is a party or by which
it or any of its properties may be bound, except in the case of clause (ii) for
such defaults which, individually or in the aggregate, would not reasonably be
expected to have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole;
(k) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material adverse
effect on the current or future consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries, taken as a
whole; and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
(l) The Company is not and after giving effect to the offering and
sale of the Securities, will not be, an "investment company," as such term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act");
5
(m) Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its subsidiaries taken as a whole, are independent
public accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(n) The financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the Registration Statement
and Prospectus present fairly in all material respects the consolidated
financial position of the Company and its consolidated subsidiaries as of the
dates indicated and the consolidated results of their operations for the periods
specified; and, except as stated therein, such financial statements have been
prepared in conformity with generally accepted accounting principles in the
United States applied on a consistent basis;
(o) The Company has received an order from the Commission exempting
the Company from all of the provisions of the Public Utility Holding Company Act
of 1935, as amended (the "1935 Act"), except for Section 9(a)(2) thereof;
(p) The Company and its subsidiaries possess such certificates,
authorities or permits issued by the appropriate state, federal, local or
foreign regulatory agencies or bodies necessary to conduct the businesses now
operated by them, except where the failure to possess such certificates,
authorities or permits, individually or in the aggregate, would not have a
material adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such certificate, authority or permit which, individually
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse affect on the current or future
consolidated financial position, shareholders' equity or results of operations
of the Company and its subsidiaries, taken as a whole; and
(q) The Company and its subsidiaries are in compliance with, and
conduct their respective businesses in conformity with, all applicable state,
federal, local and foreign laws and regulations relating to the operation and
ownership of a public utility, including, without limitation, those relating to
the distribution and transmission of natural gas, except to the extent that any
failure so to comply or conform would not individually or in the aggregate have
a material adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Securities, the several Underwriters propose to offer such Securities for
sale upon the terms and conditions set forth in the Prospectus as amended or
supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
Federal (same-day)
6
funds to the account specified by the Company to the Representatives at least
forty-eight hours in advance or at such other place and time and date as the
Representatives and the Company may agree upon in writing, such time and date
being herein called the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under the
Act not later than the Commission's close of business on the second business day
following the execution and delivery of the Pricing Agreement relating to the
applicable Designated Securities or, if applicable, such earlier time as may be
required by Rule 424(b); to make no further amendment or any supplement to the
Registration Statement or Prospectus amended or supplemented after the date of
the Pricing Agreement relating to such Securities and prior to the Time of
Delivery for such Securities which shall be disapproved by the Representatives
for such Securities promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after such Time of
Delivery and furnish the Representatives with copies thereof; to file promptly
all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of such Securities, and during
such same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
any prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or suspending
the use of any prospectus relating to the Securities or suspending any such
qualification, to promptly use commercially reasonable efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for offering
and sale under the securities laws of such jurisdictions as the Representatives
may request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of such Securities, provided that in connection
therewith the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York business
day next succeeding the date of any Pricing Agreement for such Designated
Securities, or such later time or date as agreed to by the Company and the
Representatives, and from time to time, to furnish the Underwriters with copies
of the Prospectus in New York City as amended or supplemented in such quantities
as the Representatives may reasonably request, and, if the
7
delivery of a prospectus is required at any time in connection with the offering
or sale of such Designated Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the Exchange
Act any document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and upon their request to file such document and to prepare and
furnish without charge to each Underwriter and to any dealer in securities as
many copies as the Representatives may from time to time reasonably request of
an amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158);
(e) During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including the later of (i)
the termination of trading restrictions for such Securities, as notified to the
Company by the Representatives and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company which mature more than one year after such Time
of Delivery and which are substantially similar to such Designated Securities,
without the prior written consent of the Representatives; and
(f) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance with
Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement,
and the Company shall at the time of filing either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any
Blue Sky and Legal Investment Memoranda, closing documents (including any
compilations thereof) and any other documents in
8
connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and Legal Investment Surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) any filing fees incident to, and
the reasonable fees and disbursements of counsel for the Underwriters in
connection with, any required review by the NASD Regulation, Inc. of the terms
of the sale of the Securities; (vi) the cost of preparing the Securities; (vii)
the fees and expenses of any Trustee and any agent of any Trustee and the
reasonable fees and disbursements of counsel for any Trustee in connection with
any Indenture and the Securities; (viii) any fees and expenses in connection
with listing the Securities and the cost of registering the Securities under
Section 12 of the Exchange Act; and (ix) all other costs and expenses incident
to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of the applicable Pricing Agreement; no stop
order suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such written opinion or opinions, dated the Time of Delivery for
such Designated Securities, with respect to the Registration Statement and the
Prospectus as amended or supplemented, as well as such other related matters as
the Representatives may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Gary W. Kyle, Chief Corporate Counsel of the Company, shall have
furnished to the Representatives a written opinion or opinions, dated the Time
of Delivery for
9
such Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
California, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties or conducts any business so as to
require such qualification, except where the failure to be so qualified
would not subject it to material liability or disability; and the
Subsidiary has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of California;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid
and non-assessable; and all of the issued shares of capital stock of the
Subsidiary have been duly and validly authorized and issued, are fully paid
and non-assessable and are owned of record directly or indirectly by the
Company and, to such counsel's knowledge, free and clear of all liens,
encumbrances, equities or claims;
(iii) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its subsidiaries,
would reasonably be expected individually or in the aggregate to have a
material adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole; and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(iv) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and delivered
by the Company;
(v) The Designated Securities have been duly authorized,
executed, authenticated, issued and delivered and the Designated Securities
constitute valid and legally binding obligations of the Company entitled to
the benefits provided by the Indenture; and the Designated Securities and
the Indenture conform to the descriptions thereof in the Prospectus;
(vi) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency, receivership, liquidation,
fraudulent conveyance, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
10
rights and to general equity principles; and the Indenture has been duly
qualified under the Trust Indenture Act;
(vii) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Indenture, this Agreement and the Pricing Agreement with
respect to the Designated Securities and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any material contract, indenture, mortgage,
deed of trust, loan agreement, note, lease or other agreement or instrument
to which the Company or the Subsidiary is a party or by which the Company
or the Subsidiary is bound or to which any of their respective material
properties or assets is subject, nor will such actions result in any
violation of the provisions of the Articles of Incorporation or By-laws of
the Company or the Subsidiary or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company or the Subsidiary or any of their respective material
properties;
(viii) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Designated Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or such Pricing Agreement or the Indenture, except such as have
been obtained under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, orders, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Designated Securities by the Underwriters;
(ix) Neither the Company nor the Subsidiary is (i) in violation
of its By-laws or Articles of Incorporation or (ii) in default in the
performance or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed of trust,
loan agreement, note, lease or other agreement or instrument to which it is
a party or by which it or any of its properties may be bound, except in the
case of clause (ii) for such defaults which, individually or in the
aggregate, would not reasonably be expected to have a material adverse
effect on the consolidated financial position, shareholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole;
(x) The statements set forth in the Prospectus as amended or
supplemented under the captions "Description of Debt Securities",
"Description of Notes" or "Description of Debentures" (or similar caption),
insofar as they purport to constitute a summary of the terms of the
Securities or the Indenture, and under the captions "Plan of Distribution"
and "Underwriting", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and fair
in all material respects;
(xi) The Company is not, and after giving effect to the offering
and sale of the Designated Securities, with not be, an "investment
company," as such term is defined in the Investment Company Act;
11
(xii) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion), when
they became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder; and such counsel has no reason to believe
that any of such documents, when they became effective or were so filed, as
the case may be, contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, or, in the case of other
documents which were filed under the Act or the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such documents
were so filed, not misleading; it being understood that such counsel
expresses no belief with respect to the financial statements or other
financial data included or incorporated by reference in, or omitted from,
the Prospectus as amended or supplemented;
(xiii) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made by the
Company prior to the Time of Delivery for the Designated Securities (in
each case, excluding the documents incorporated by reference therein)
comply as to form in all material respects with the requirements for
registration statements on Form S-3 under the Act, and the requirements
under the Trust Indenture Act and the rules and regulations of the
Commission thereunder, it being understood, however, that such counsel
expresses no opinion with respect to the financial statements, schedules or
other financial data included or incorporated by reference in, or omitted
from the Registration Statement or the Prospectus as amended or
supplemented or with respect to any Form T-1. In passing upon the
compliance as to the form of the Registration Statement and the Prospectus
as amended or supplemented (in each case, excluding the documents
incorporated by reference therein), except for those statements referred to
in the opinion in subsection (x) of this Section 7(c), such counsel has
assumed that the statements made and incorporated by reference therein are
correct and complete; and
(xiv) The Company has received an order from the Commission
exempting the Company from all of the provisions of the 1935 Act, except
for Section 9(a)(2) thereof.
(d) Counsel for the Company satisfactory to the Representatives shall
have furnished to the Representatives their written opinion or opinions, dated
each Time of Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Indenture constitutes a legally valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms;
12
(ii) The Designated Securities, when executed and authenticated
in accordance with the terms of the Indenture and delivered to and paid for
by the Underwriters in accordance with the terms of the Pricing Agreement,
will constitute legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, and are
entitled to the benefits of the Indenture; and
(iii) The Registration Statement and the Prospectus as amended or
supplemented (in each case, excluding the documents incorporated by
reference therein) comply as to form in all material respects with the
requirements for registration statements on Form S-3 under the Act, and the
requirements under the Trust Indenture Act and the rules and regulations of
the Commission thereunder; it being understood, however, that such counsel
expresses no opinion with respect to the financial statements, schedules or
other financial data included or incorporated by reference in, or omitted
from, the Registration Statement or the Prospectus as amended or
supplemented or with respect to any Form T-1. In passing upon the
compliance as to form of the Registration Statement and the Prospectus as
amended or supplemented (in each case, excluding the documents incorporated
by reference therein), such counsel has assumed that the statements made
and incorporated by reference therein are correct and complete.
In addition, such counsel shall provide a statement to the effect that
such counsel has participated in telephone conferences with officers and other
representatives of the Company, and representatives of the Underwriters, at
which the contents of the Registration Statement and the Prospectus as amended
or supplemented and related matters were discussed and, although such counsel is
not passing upon, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained or incorporated by
reference in the Registration Statement and the Prospectus as amended or
supplemented and has not made any independent check or verification thereof,
during the course of such participation, no facts came to such counsel's
attention that caused them to believe that the Registration Statement, at the
time it became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus as amended or
supplemented (including the documents incorporated by reference), as of its date
and as of the date of such opinion, contained or contains an untrue statement of
a material fact or omitted or omits to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; it being understood that such counsel expresses no belief
with respect to the financial statements or other financial data included or
incorporated by reference in, or omitted from, the Registration Statement or
Prospectus as amended or supplemented.
(e) On the date of the Pricing Agreement for such Designated Securities at
a time prior to the execution of the Pricing Agreement with respect to such
Designated Securities and at the Time of Delivery for such Designated
Securities, the independent accountants of the Company who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall have furnished to
the Representatives a letter, dated the date of the Pricing Agreement to the
effect set forth in Annex II hereto, and a letter dated such Time of Delivery
reaffirming the statements made in their letter dated the date of the Pricing
Agreement, except that the specified date referred to in such letter delivered
on such Time of Delivery shall be a date not more than three days prior to the
Time of
13
Delivery, and with respect to such letter dated such Time of Delivery, as to
such other matters as the Representatives may reasonably request and in form and
substance satisfactory to the Representatives;
(f) (i) The Company and its subsidiaries taken as a whole shall have
not sustained since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus as amended prior to the date of
the Pricing Agreement relating to the Designated Securities any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended prior to the date of the Pricing
Agreement relating to the Designated Securities, and (ii) since the respective
dates as of which information is given in the Prospectus as amended prior to the
date of the Pricing Agreement relating to the Designated Securities there shall
not have been any change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company or any of
its subsidiaries, otherwise than as set forth or contemplated in the Prospectus
as amended prior to the date of the Pricing Agreement relating to the Designated
Securities, the effect of which, in any such case described in clause (i) or
(ii), is in the judgment of the Representatives so material and adverse to the
Company and its subsidiaries, taken as a whole, as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented relating to the Designated
Securities;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities or preferred stock;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange; (ii) a suspension or material limitation in trading in the
Company's securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either Federal or New York or
California State authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in this
clause (iv) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented relating to the Designated
Securities;
(i) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
business day next succeeding the date of any Pricing Agreement for such
Designated Securities; and
14
(j) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate of officers of the Company satisfactory to the Representatives as to
the accuracy of the representations and warranties of the Company herein at and
as of such Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of Delivery, as
to the matters set forth in subsections (a) and (f) of this Section and as to
such other matters as the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Designated Securities.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
15
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
of the Designated Securities on the other from the offering of the Securities to
which such loss, claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the Underwriters
of the Designated Securities on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and such Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from such offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions
received by such Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct
16
or prevent such statement or omission. The Company and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
of Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Secur ities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within
the respective prescribed period, the Representatives notify the Company that
they have so arranged for the purchase of such Designated Securities, or the
Company notifies the Representatives that it has so arranged for the purchase of
such Designated Securities, the Representatives or the Company shall have the
right to postpone the Time of Delivery for such Designated Securities for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used
in this Agreement shall include any person substituted under this Section with
like effect as if such person had originally been a party to the Pricing
Agreement with respect to such Designated Securities.
17
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based on the principal
amount of Designated Securities which such Underwriter agreed to purchase under
such Pricing Agreement) of the Designated Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Sections 6 and 8 hereof; but, if for any other reason
Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be
18
entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by such Representatives jointly or by
such of the Representatives, if any, as may be designated for such purpose in
the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used herein,
"business day" shall mean any day when the Commission's office in Washington,
D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
(Signature Page Follows)
19
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company and for each of the Representatives plus
one for each counsel counterparts hereof.
Very truly yours,
Pacific Enterprises
By: _______________________________
Name:
Title:
Accepted as of the date hereof:
[NAMES OF REPRESENTATIVES]
_____________________
_____________________
_____________________
By: ______________________________
(_________________)
20
ANNEX I
Pricing Agreement
-----------------
_____________________
As Representatives of the several
Underwriters named in Schedule I hereto,
_________________
_________________
_________________
__________ __, 2001
Ladies and Gentlemen:
Pacific Enterprises, a California corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated _____________, 2001 (the "Underwriting Agreement")
between the Company on the one hand and _______, ________ and ________ on the
other hand, to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the Underwriting Agreement
is incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation and warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section 12
of the Underwriting Agreement and the address of the Representatives referred to
in such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from
Annex I -- 1
the Company, at the time and place and at the purchase price to the Underwriters
set forth in Schedule II hereto, the principal amount of Designated Securities
set forth opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company and for each of the Representatives plus
one for each counsel counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters, on the one hand, and the Company, on the other hand. It is
understood that your acceptance of this letter on behalf of each of the
Underwriters is or will be pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
Pacific Enterprises
By:_______________________________
Name:
Title:
Accepted as of the date hereof:
___________________
By:__________________________________
(_________________)
On behalf of each of the Underwriters
Annex I -- 2
SCHEDULE I
Principal Amount of
Designated Securities
Underwriter to be Purchased
- ------------------------------------------------------------ -----------------------------
[Names of Co-Representatives]............................... $
[Names of other Underwriters]............................... ________
Total............................................. $
========
Schedule I -- 1
SCHEDULE II
Title of Designated Securities:
[____%] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due ____
Aggregate principal amount:
$_____
Price to Public:
______% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from ___ to ____ [and accrued amortization[, if any,]
from ___ to ___]
Purchase Price by Underwriters:
______% of the principal amount of the Designated Securities[, plus accrued
interest from __ to ___] [and accrued amortization[, if any,] from ___ to
___]
Form of Designated Securities:
[Definitive form to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery at the office of [The
Depository Trust Company or its designated custodian] [the
Representatives]]
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.]
Specified funds for payment of purchase price:
Federal (same day) funds
Time of Delivery:
______a.m. (New York City time), _____, 2001
Indenture:
Indenture dated _________, 2001, between the Company and U.S. Bank Trust
National Association, as Trustee
Schedule II -- 1
Maturity:
_________
Interest Rate:
[_______%] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[______ and ______, commencing _____, 200__]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of $___ or an integral multiple thereof,
[on or after ______ at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before ___, ___%,
and if] redeemed during the 12-month period beginning ____,
Year Redemption Price
__.__
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after _____, at the election of
the Company, at a redemption price equal to the principal amount thereof,
plus accrued interest to the date of redemption.]]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire [$______] principal amount of Designated Securities on _______ in
each of the years __ through __ at 100% of their principal amount plus
accrued interest[, together with [cumulative] [noncumulative] redemptions
at the option of the Company to retire an additional [$___]
Schedule II -- 2
principal amount of Designated Securities in the years ___ through ___ at
100% of their principal amount plus accrued interest.]
[If Designated Securities are extendable debt securities, insert--
Extendable provisions:
Designated Securities are repayable on ______ [insert date and years], at
the option of the holder, at their principal amount with accrued interest.
The initial annual interest rate will be __%, and thereafter the annual
interest rate will be adjusted on __ and ___ to a rate not less than ___%
of the effective annual interest rate on U.S. Treasury obligations with
___-year maturities as of the [insert date 15 days prior to maturity date]
prior to such [insert maturity date].]
[If Designated Securities are floating rate debt securities, insert--
Floating rate provisions:
Initial annual interest rate will be ___% through ____ [and thereafter will
be adjusted [monthly] [on each __, ___, and ] [to an annual rate of ___%
above the average rate for ____-year [month][securities][certificates of
deposit] issued by ___ and ___ [insert names of banks]____] [and the annual
interest rate [thereafter] [from ___ through ___] will be the interest
yield equivalent of the weekly average per annum market discount rate for
___-month Treasury bills plus ____% of Interest Differential (the excess,
if any, of (i) the then current weekly average per annum secondary market
yield for ___-month certificates of deposit over (ii) the then current
interest yield equivalent of the weekly average per annum market discount
rate for ___-month Treasury bills); [from ___ and thereafter the rate will
be the then current interest yield equivalent plus ___% of Interest
Differential].]
Defeasance provisions:
Closing location for delivery of Designated Securities:
Additional Closing Conditions:
Names and addresses of Representatives:
Designated Representatives:
Schedule II -- 3
Address for Notices, etc.:
[Other Terms]:
Schedule II -- 4
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable rules and regulations adopted by the Commission;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited (and, if applicable, financial
forecasts and/or pro forma financial information) by them and included or
incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the related
rules and regulations; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified in
such letter, as indicated in their reports thereon, copies of which have
been furnished to the representative or representatives of the Underwriters
(the "Representatives") such term to include an Underwriter or Underwriters
who act without any firm being designated as its or their representatives
and are attached to such letters;
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
statements of consolidated income, consolidated balance sheets and
condensed statements of consolidated cash flows included in the Company's
Quarterly Reports on Form 10-Q incorporated by reference into the
Prospectus as indicated in their reports thereon copies of which are
attached to such letters; and on the basis of specified procedures
including inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i) below
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related rules and
regulations, nothing came to their attention that caused them to believe
that the unaudited condensed consolidated financial statements do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related rules and
regulations adopted by the Commission;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years included or
Schedule II -- 1
incorporated by reference in the Company's Annual Reports on Form 10-K for
such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited statements of consolidated income,
consolidated balance sheets and condensed statements of consolidated
cash flows included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the Exchange Act and the published rules and regulations adopted by
the Commission, or (ii) any material modifications should be made to
the unaudited statements of consolidated income, consolidated balance
sheets and condensed statements of consolidated cash flows included in
the Company's Quarterly Reports on Form 10-Q incorporated by reference
in the Prospectus for them to be in conformity with generally accepted
accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10- K for the most recent fiscal year;
Schedule II -- 2
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the rules and regulations
adopted by the Commission thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in the compilation
of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated current assets or
shareholders' equity or other items specified by the Representatives,
or any increases in any items specified by the Representatives, in
each case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except in
each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in clause (E) there were any decreases
in consolidated revenues or income before interest and income taxes or
the total or per share amounts of consolidated net income or other
items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in each
case for increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are derived
from the general accounting records of the Company and its subsidiaries,
which appear in the Prospectus (excluding documents incorporated by
reference), or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
Schedule II -- 3
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
Schedule II -- 4
EXHIBIT 4.1
PACIFIC ENTERPRISES
TO
U.S. BANK TRUST NATIONAL ASSOCIATION
Trustee
--------------------------------------------
Senior Indenture
Dated as of ________________
--------------------------------------------
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310
THROUGH 318, INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
- --------------- -----------------
Section 310(a)(1)............................................. 609
(a)(2)............................................. 609
(a)(3)............................................. Not Applicable
(a)(4)............................................. Not Applicable
(b)................................................ 608
610
Section 311(a)................................................ 613
(b)................................................ 613
Section 312(a)................................................ 701
702
(b)................................................ 702
(c)................................................ 702
Section 313(a)................................................ 703
(b)................................................ 703
(c)................................................ 703
(d)................................................ 703
Section 314(a)................................................ 704
(a)(4) 101
1005
(b)................................................ Not Applicable
(c)(1)............................................. 102
(c)(2)............................................. 102
(c)(3)............................................. Not Applicable
(d)................................................ Not Applicable
(e)................................................ 102
Section 315(a)................................................ 601
(b)................................................ 602
(c)................................................ 601
(d)................................................ 601
(e)................................................ 514
Section 316(a)................................................ 101
(a)(1)(A).......................................... 502
512
(a)(1)(B).......................................... 513
(a)(2)............................................. Not Applicable
(b)................................................ 508
(c)................................................ 104
Section 317(a)(1)............................................. 503
(a)(2)............................................. 504
(b)................................................ 1003
Section 318(a)................................................ 107
- -------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
i
TABLE OF CONTENTS
Page
----
Parties........................................................................1
Recitals of the Corporation....................................................1
ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.............1
Section 101. Definitions.................................................1
Section 102. Compliance Certificates and Opinions........................7
Section 103. Form of Documents Delivered to Trustee......................7
Section 104. Acts of Holders; Record Dates...............................8
Section 105. Notices, Etc., to Trustee and Corporation..................10
Section 106. Notice to Holders; Waiver..................................11
Section 107. Conflict with Trust Indenture Act..........................11
Section 108. Effect of Headings and Table of Contents...................11
Section 109. Successors and Assigns.....................................12
Section 110. Separability Clause........................................12
Section 111. Benefits of Indenture......................................12
Section 112. Governing Law..............................................12
Section 113. Legal Holidays.............................................12
ARTICLE II. SECURITY FORMS....................................................12
Section 201. Forms Generally............................................12
Section 202. Form of Face of Security...................................13
Section 203. Form of Reverse of Security................................15
Section 204. Form of Legend for Global Securities.......................19
Section 205. Form of Trustee's Certificate of Authentication............19
ARTICLE III. The Securities...................................................20
Section 301. Amount Unlimited; Issuable in Series.......................20
Section 302. Denominations..............................................23
Section 303. Execution, Authentication, Delivery and Dating.............23
Section 304. Temporary Securities.......................................25
Section 305. Registration, Registration of Transfer and Exchange........25
Section 306. Mutilated, Destroyed, Lost and Stolen Securities...........28
Section 307. Payment of Interest; Interest Rights Preserved.............29
Section 308. Persons Deemed Owners......................................30
Section 309. Cancellation...............................................30
Section 310. Computation of Interest....................................31
Section 311. CUSIP Numbers..............................................31
ii
ARTICLE IV. SATISFACTION AND DISCHARGE........................................................................31
Section 401. Satisfaction and Discharge of Indenture....................................................31
Section 402. Application of Trust Money.................................................................32
ARTICLE V. REMEDIES...........................................................................................33
Section 501. Events of Default..........................................................................33
Section 502. Acceleration of Maturity; Rescission and Annulment.........................................35
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee............................36
Section 504. Trustee May File Proofs of Claim...........................................................37
Section 505. Trustee May Enforce Claims Without Possession of Securities................................37
Section 506. Application of Money Collected.............................................................38
Section 507. Limitation on Suits........................................................................38
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest..................39
Section 509. Restoration of Rights and Remedies.........................................................39
Section 510. Rights and Remedies Cumulative.............................................................39
Section 511. Delay or Omission Not Waiver...............................................................39
Section 512. Control By Holders.........................................................................40
Section 513. Waiver of Past Defaults....................................................................40
Section 514. Undertaking for Costs......................................................................40
Section 515. Waiver of Stay or Extension Laws...........................................................41
ARTICLE VI. THE TRUSTEE.......................................................................................41
Section 601. Certain Duties and Responsibilities........................................................41
Section 602. Notice of Defaults.........................................................................41
Section 603. Certain Rights of Trustee..................................................................42
Section 604. Not Responsible for Recitals or Issuance of Securities.....................................43
Section 605. May Hold Securities........................................................................43
Section 606. Money Held in Trust........................................................................43
Section 607. Compensation and Reimbursement.............................................................43
Section 608. Conflicting Interests......................................................................44
Section 609. Corporate Trustee Required; Eligibility....................................................44
Section 610. Resignation and Removal; Appointment of Successor..........................................45
Section 611. Acceptance of Appointment by Successor.....................................................46
Section 612. Merger, Conversion, Consolidation or Succession to Business................................47
Section 613. Preferential Collection of Claims Against Corporation......................................48
Section 614. Appointment of Authenticating Agent........................................................48
Section 615. Trustee's Application for Instructions from the Corporation................................49
ARTICLE VII. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND CORPORATION............................................50
Section 701. Corporation to Furnish Trustee Names and Addresses of Holders..............................50
Section 702. Preservation of Information; Communications to Holders.....................................50
Section 703. Reports by Trustee.........................................................................50
iii
Section 704. Reports by Corporation.....................................................................51
ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER...................................................51
Section 801. Corporation May Consolidate, Etc., on Certain Terms........................................51
Section 802. Successor Substituted......................................................................52
ARTICLE IX. SUPPLEMENTAL INDENTURES...........................................................................53
Section 901. Supplemental Indentures Without Consent of Holders.........................................53
Section 902. Supplemental Indentures With Consent of Holders............................................54
Section 903. Execution of Supplemental Indentures.......................................................55
Section 904. Effect of Supplemental Indentures..........................................................55
Section 905. Conformity with Trust Indenture Act........................................................55
Section 906. Reference in Securities to Supplemental Indentures.........................................55
ARTICLE X. COVENANTS..........................................................................................56
Section 1001. Payment of Principal, Premium and Interest.................................................56
Section 1002. Maintenance of Office or Agency............................................................56
Section 1003. Money for Securities Payments to Be Held in Trust..........................................56
Section 1004. Corporate Existence........................................................................58
Section 1005. Statement by Officers as to Default........................................................58
Section 1006. Waiver of Certain Covenants................................................................58
ARTICLE XI. REDEMPTION OF SECURITIES..........................................................................58
Section 1101. Applicability of Article...................................................................58
Section 1102. Election to Redeem; Notice to Trustee......................................................58
Section 1103. Selection by Trustee of Securities to Be Redeemed..........................................59
Section 1104. Notice of Redemption.......................................................................59
Section 1105. Securities Payable on Redemption Date......................................................60
Section 1106. Securities Redeemed in Part................................................................61
ARTICLE XII. SINKING FUNDS....................................................................................61
Section 1201. Applicability of Article...................................................................61
Section 1202. Satisfaction of Sinking Fund Payments with Securities......................................62
Section 1203. Redemption of Securities for Sinking Fund..................................................62
ARTICLE XIII. DEFEASANCE AND COVENANT DEFEASANCE..............................................................62
Section 1301. Applicability of Article...................................................................62
Section 1302. Defeasance and Discharge...................................................................63
Section 1303. Covenant Defeasance........................................................................63
Section 1304. Conditions to Defeasance or Covenant Defeasance............................................64
Section 1305. Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous
Provisions...............................................................................65
Section 1306. Reinstatement..............................................................................66
iv
ARTICLE XIV. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS..................................66
Section 1401. Indenture and Securities Solely Corporate Obligations......................................66
v
INDENTURE, dated as of _____________, between Pacific Enterprises, a
corporation duly organized and existing under the laws of the State of
California (herein called the "Corporation"), having its principal office at 101
Ash Street, San Diego, California 92101, and U.S. Bank Trust National
Association, a national banking association duly organized and existing under
the laws of the United States of America, as Trustee (herein called the
"Trustee").
RECITALS OF THE CORPORATION
The Corporation has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured senior
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Corporation, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
1
(5) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Board of Directors" means either the board of directors of the Corporation
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Corporation to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, means a day
other than (i) a Saturday or a Sunday or (ii) a day on which banking
institutions in that Place of Payment are authorized or obligated by law or
executive order to remain closed.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Corporation" means the Person named as the "Corporation" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Corporation" shall mean such successor Person.
"Company Order" or "Company Request" means a written order or request
signed in the name of the Corporation by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date hereof is located at 550 South Hope Street, 5th Floor,
Los Angeles, California 90071, Attn: Corporate Trust.
2
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part of the
Securities of any series which is issued to a Depositary or a nominee thereof
for such series in accordance with Section 301(17).
"Government Obligation" has the meaning specified in Section 1304.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 301.
"interest," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
3
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in Section
501(4).
"Officers' Certificate" means a certificate signed by either the Chairman
of the Board, the Chief Executive Officer, the Vice Chairman of the Board, the
President or a Vice President, and also signed by the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary, of the Corporation and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section 1005 shall
be the principal executive, financial or accounting officer of the Corporation.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Corporation, or other counsel who shall be reasonably acceptable to the
Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities for whose payment or redemption the necessary
amount of money or Government Obligations has been theretofore deposited
with the Trustee or any Paying Agent (other than the Corporation) in trust
or set aside and segregated in trust by the Corporation (if the Corporation
shall act as its own Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant
to Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Corporation proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Corporation;
4
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Corporation or any other obligor upon the Securities or any
Affiliate of the Corporation or of any such other obligor, whether of record or
beneficially, shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver or other
action, only Securities which the Trustee actually knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Corporation or any other obligor upon the Securities or
any Affiliate of the Corporation or of any such other obligor.
"Paying Agent" means any Person authorized by the Corporation to pay the
principal of or any premium or interest on any Securities on behalf of the
Corporation.
"Periodic Offering" means an offering of Securities of a series from time
to time the specific terms of which Securities, including without limitation the
rate or rates of interest or formula for determining the rate or rates of
interest thereon, if any, the Stated Maturity or Maturities thereof and the
redemption provisions, if any, with respect thereto, are to be determined by the
Corporation upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, limited liability
company or corporation, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any series,
means the place or places where the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in
5
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall
be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, any assistant vice
president , any senior trust officer, any trust officer or assistant trust
officer, the controller or any assistant controller or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307(1).
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the date on which the principal of such Security or such
installment of principal or interest is due and payable, in the case of such
principal, as such date may be advanced or extended as provided pursuant to the
terms of such Security established pursuant to Section 301.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" shall mean, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
6
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Vice President," when used with respect to the Corporation or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
Section 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Corporation to the Trustee to take
any action under any provision of this Indenture, the Corporation shall furnish
to the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Corporation, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
7
Any certificate or opinion of an officer of the Corporation may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such officer's certificate or opinion is
based are erroneous. Any such certificate or opinion of counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Corporation stating that the
information with respect to such factual matters is in the possession of the
Corporation, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever, subsequent to the receipt by the Trustee of any Board Resolution,
Officers' Certificate, Opinion of Counsel or other document or instrument, a
clerical, typographical or other inadvertent or unintentional error or omission
shall be discovered therein, a new document or instrument may be substituted
therefor in corrected form with the same force and effect as if originally filed
in the corrected form and, irrespective of the date or dates of the actual
execution and/or delivery thereof, such substitute document or instrument shall
be deemed to have been executed and/or delivered as of the date or dates
required with respect to the document or instrument for which it is substituted.
Anything in this Indenture to the contrary notwithstanding, if any action has
been taken by or at the request of the Corporation in reliance on an error or
omission in the original document which has been corrected as aforesaid, the
action so taken shall not be invalidated or otherwise rendered ineffective but
shall be and remain in full force and effect, except to the extent that such
action was a result of willful misconduct or bad faith. Without limiting the
generality of the foregoing, any Securities issued under the authority of such
defective document or instrument shall nevertheless be the valid obligations of
the Corporation entitled to the benefits of this Indenture equally and ratably
with all other Outstanding Securities, except as aforesaid.
Section 104. Acts of Holders; Record Dates.
-----------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Corporation.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient
8
for any purpose of this Indenture and (subject to Section 601) conclusive in
favor of the Trustee and the Corporation, if made in the manner provided in this
Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than the signer's individual capacity, such
certificate or affidavit shall also constitute sufficient proof of the signer's
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Corporation
in reliance thereon, whether or not notation of such action is made upon such
Security.
The Corporation may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series; provided that the
Corporation may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take or revoke the relevant action, whether or not such
Holders remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Corporation from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Corporation, at its own expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
9
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction or to revoke
the same, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing in
this paragraph shall be construed to prevent the Trustee from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the
Corporation's expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be sent to the
Corporation in writing and to each Holder of Securities of the relevant series
in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record date may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106 on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
Section 105. Notices, Etc., to Trustee and Corporation.
-----------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
10
(1) the Trustee by any Holder or by the Corporation shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing, which may be made via facsimile, to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust, or
(2) the Corporation by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or filed in writing, which may be made
via facsimile, or mailed, first-class postage prepaid, to the Corporation
addressed to it at the address of its principal office specified in the
first paragraph of this instrument, Attention: Treasurer, or at any other
address previously furnished in writing to the Trustee by the Corporation.
Section 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed by
such Holders or the Corporation with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
11
Section 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Corporation shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto, their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 112. Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, without regard to conflicts
of laws principles thereof.
Section 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity.
ARTICLE II.
SECURITY FORMS
Section 201. Forms Generally.
---------------
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution, in one or more indentures supplemental hereto or in an
Officers' Certificate pursuant to Section 301 hereof, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or
Depositary therefor or as may, consistently herewith,
12
be determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken by or pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant
Secretary of the Corporation and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the authentication
and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
Section 202. Form of Face of Security.
------------------------
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder or by the Depositary.]
PACIFIC ENTERPRISES
-------------------
$
----------
No. CUSIP No.
--------- ----
Pacific Enterprises, a corporation duly organized and existing under the
laws of the State of California (herein called the "Corporation," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ______________________, or registered
assigns, the principal sum of ________ Dollars ($___________) on
_________________________ [if the Security is to bear interest prior to Maturity
and interest payment periods are not extendable, insert - , and to pay interest
thereon from __________ or from the most recent date to which interest has been
paid or duly provided for, [insert - semi-annually, quarterly, monthly or other
description of the relevant payment period] on [________, ________,] and
__________ in each year (each, an "Interest Payment Date"), commencing
_______________, and at Maturity at the rate of ____% per annum, until the
principal hereof is paid or made available for payment [if applicable, insert -
, provided that any principal hereof or premium, if any, or interest hereon
which is not paid when due shall bear interest at the rate of ___% per annum (to
the extent that the payment of such interest shall be legally enforceable) from
the dates such amounts are due until they are paid or made available for
payment, and such interest shall be payable on demand]. Interest on this
Security shall be calculated on the basis of a 360-day year consisting of twelve
30-day months. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the [___________________] (whether or not a
Business Day), as the case
13
may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for on any Interest Payment Date will forthwith
cease to be payable to the Holder on such Regular Record Date by virtue of
having been such Holder and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert - The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ____% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of ____% per annum (to the extent that the payment of such interest on interest
shall be legally enforceable), from the date of such demand until the amount so
demanded is paid or made available for payment. Interest on any overdue interest
shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert - any such] interest on this Security will be made at the office or
agency of the Corporation maintained for that purpose in the Borough of
Manhattan, The City of New York, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts [if applicable, insert - ; provided, however, that at the option
of the Corporation payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by wire transfer at such place and to such account at a
banking institution in the United States as may be designated in writing to the
Trustee at least fifteen (15) days prior to the date for payment by the Person
entitled thereto]. [In the case of a Global Security registered in the name of
the Depository Trust Company or its nominee, insert--Notwithstanding the
foregoing, so long as the Holder of this Security is the Depositary or its
nominee, payment of the principal of (and premium, if any) and [if applicable,
insert--any such] interest on this Security will be made by wire transfer of
immediately available funds.]
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
14
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly
executed.
Dated: PACIFIC ENTERPRISES
By
-------------------------------------------
Attest:
- -------------------------------------------
Section 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of securities of the
Corporation (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of ________, ______ (herein called the
"Indenture," which term shall have the meaning assigned to it in such
instrument), between the Corporation and U.S. Bank Trust National Association,
as Trustee (herein called the "Trustee," which term includes any successor
trustee under the Indenture), and reference is hereby made to the Indenture for
a statement of the respective rights, limitation of rights, duties and
immunities thereunder of the Corporation, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert - , limited (subject to exceptions
provided in the Indenture) in aggregate principal amount to $_________ ].
If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' nor more than 60 days' prior written
notice by mail, [if applicable, insert - (1) on ____________ in any year
commencing with the year _____ and ending with the year _____ through operation
of the sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [if applicable, insert - on or after
___________, 19__], as a whole or in part, at the election of the Corporation,
at the following Redemption Prices (expressed as percentages of the principal
amount): If redeemed [if applicable, insert - on or before _________________,
___%, and if redeemed] during the 12-month period beginning _________ of the
years indicated,
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
15
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption [if applicable, insert - (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Regular Record Dates referred to on the face hereof, all as provided in
the Indenture.]
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' nor more than 60 days' prior written
notice by mail, (1) on ____________ in any year commencing with the year ______
and ending with the year _____ through operation of the sinking fund for this
series at the Redemption Prices for redemption through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [if applicable, insert - on or after _____________],
as a whole or in part, at the election of the Corporation, at the Redemption
Prices for redemption otherwise than through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below:
If redeemed during the 12- month period beginning ________ of the years
indicated,
Redemption Price Redemption Price for
for Redemption Otherwise
Redemption Through Than
Operation of the Through Operation
Year Sinking Fund of the Sinking Fund
---- ------------------ -------------------------
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Regular Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the Corporation may
not, prior to _________, redeem any Securities of this series as contemplated by
[if applicable, insert - Clause (2) of] the preceding paragraph as a part of, or
in anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Corporation
(calculated in accordance with generally accepted financial practice) of less
than ____% per annum.]
16
[If applicable, insert - The sinking fund for this series provides for the
redemption on __________ in each year beginning with the year _______ and ending
with the year ______ of [if applicable, insert - not less than $___________
("mandatory sinking fund") and not more than] $____________ aggregate principal
amount of Securities of this series. Securities of this series acquired or
redeemed by the Corporation otherwise than through [if applicable, insert -
mandatory] sinking fund payments may be credited against subsequent [if
applicable, insert - mandatory] sinking fund payments otherwise required to be
made [if applicable, insert - , in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert - In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is not subject to redemption, insert - The Securities are
not subject to redemption prior to the Stated Maturity of the principal
thereof.]
[If applicable, insert - The Indenture contains provisions for defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security] [, in
each case] upon compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of and accrued and unpaid interest on the Securities
of this series may be declared due and payable in the manner and with the effect
provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to [insert formula for determining the
amount]. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Corporation's obligations in respect of the payment of
the principal of and premium and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the Holders of the Securities of each series
affected under the Indenture at any time by the Corporation and the Trustee with
the consent of the Holders of a majority in principal amount of the Securities
of each series at the time Outstanding affected thereby. The Indenture contains
provisions permitting the Holders of not less than a majority in principal
amount of the Securities of any series at the time Outstanding with respect to
which a default under the Indenture shall have occurred and be continuing, on
behalf of the Holders of all Securities of such series, to waive, with certain
exceptions, such past default with respect to such series and its consequences.
The Indenture also permits the Holders of not less than a majority in principal
amount of the Securities of any series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to
17
waive compliance by the Corporation with certain provisions of the Indenture.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
therefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee, such Holder or Holders shall have offered the Trustee
reasonable indemnity, and the Trustee, for 60 days after its receipt of such
notice, shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and the Trustee shall have failed to institute
any such proceeding, for 60 days after receipt of such notice, request and offer
of indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Corporation, which
is absolute and unconditional, to pay the principal of [and premium, if any,]
and interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Corporation in any place where the principal of and any premium
and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Corporation and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
18
No service charge shall be made for any such registration of transfer or
exchange, but the Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Corporation, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Security shall be governed by and construed in accordance with the
laws of the State of New York, without regard to conflict of law principles
thereof.
All terms used in this Security which are defined in the Indenture and not
defined herein shall have the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Global Securities.
------------------------------------
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section 205. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
U.S. Bank Trust National Association,
As Trustee
By:
-----------------------------------
Authorized Signatory
19
Dated: _________________
ARTICLE III.
The Securities
Section 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1106 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable or the method by which such date shall be determined and
the right, if any, to shorten or extend the date on which the principal of
any Securities of the series is payable and the conditions to any such
change;
(5) the rate or rates at which any Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined; the date or dates from which any such interest shall accrue;
the Interest Payment Dates on which any such interest shall be payable; the
manner (if any) of determination of such Interest Payment Dates; and the
Regular Record Date, if any, for any such interest payable on any Interest
Payment Date;
20
(6) the right, if any, to extend the interest payment periods and the
terms of such extension or extensions;
(7) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable and whether, if
acceptable to the Trustee, any principal of such Securities shall be payable
without presentation or surrender thereof;
(8) the period or periods within which, or the date or dates on which, the
price or prices at which and the terms and conditions upon which any Securities
of the series may be redeemed, in whole or in part, at the option of the
Corporation and, if other than by a Board Resolution, the manner in which any
election by the Corporation to redeem the Securities shall be evidenced;
(9) the obligation, if any, of the Corporation to redeem or purchase any
Securities of the series pursuant to any sinking fund, purchase fund or
analogous provisions or at the option of the Holder thereof and the period or
periods within which, the price or prices at which and the terms and conditions
upon which any Securities of the series shall be redeemed or purchased, in whole
or in part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(11) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be determined;
(12) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any premium
or interest on any Securities of the series shall be payable and the manner of
determining the equivalent thereof in the currency of the United States of
America for any purpose, including for purposes of the definition of
"Outstanding" in Section 101;
(13) if the principal of or any premium or interest on any Securities of
the series is to be payable, at the election of the Corporation or the Holder
thereof, in one or more currencies or currency units other than that or those in
which such Securities are stated to be payable, the currency, currencies or
currency units in which the principal of or any premium or interest on such
Securities as to which such election is made shall be payable, the periods
within which and the terms and conditions upon which such election is to be made
and the amount so payable (or the manner in which such amount shall be
determined);
(14) if other than the entire principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
21
(15) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(16) if either or both of Sections 1302 and 1303 do not apply to any
Securities of the series;
(17) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositary or Depositaries for such
Global Securities, the form of any legend or legends which shall be borne
by any such Global Security in addition to or in lieu of that set forth in
Section 204 and any circumstances in addition to or in lieu of those set
forth in Clause (2) of the last paragraph of Section 305 in which any such
Global Security may be exchanged in whole or in part for Securities
registered, and any transfer of such Global Security in whole or in part
may be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
(18) any addition, modification or deletion of any Events of Default
or covenants provided with respect to any Securities of the series and any
change in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable pursuant
to Section 502;
(19) any addition to or change in the covenants set forth in Article X
which applies to Securities of the series; and
(20) any other terms of the series.
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Corporation and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms or the manner of determining the terms of
the series.
With respect to Securities of a series offered in a Periodic Offering, the
Board Resolution (or action taken pursuant thereto), Officers' Certificate or
supplemental indenture referred to
22
above may provide general terms or parameters for Securities of such series and
provide either that the specific terms of particular Securities of such series
shall be specified in a Company Order or that such terms shall be determined by
the Corporation in accordance with other procedures specified in a Company Order
as contemplated by the third paragraph of Section 303.
Notwithstanding Section 301(2) herein and unless otherwise expressly
provided with respect to a series of Securities, a series of Securities may from
time to time be "re-opened" and the aggregate principal amount of any such
series of Securities may be increased and additional Securities of such series
may be issued up to the maximum aggregate principal amount authorized with
respect to such series as increased.
Section 302. Denominations.
-------------
The Securities of each series shall be issuable only in fully registered
form without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Corporation by its
Chairman of the Board, its Vice Chairman of the Board, its Chief Executive
Officer, its President or one of its Vice Presidents (which may be by facsimile)
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Corporation shall bind the
Corporation, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Corporation may deliver Securities of any series executed by the
Corporation to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities, provided, however, that in the case of Securities offered in a
Periodic Offering, the Trustee shall authenticate and deliver such Securities
from time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of electronic instructions from the
Corporation or its duly authorized agents, promptly confirmed in writing)
acceptable to the Trustee as may be specified by or pursuant to a Company Order
delivered to the Trustee prior to the time of the first authentication of
Securities of such series. If the form or terms of the Securities of the series
have been established by or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the
23
Trustee shall be furnished, and (subject to Section 601) shall be fully
protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such form
has been established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been, or in the case of
Securities of a series offered in a Periodic Offering, will be, established
by or pursuant to Board Resolution as permitted by Section 301, that such
terms have been, or in the case of Securities of a series offered in a
Periodic Offering, will be, established in conformity with the provisions
of this Indenture, subject, in the case of Securities of a series offered
in a Periodic Offering, to any conditions specified in such Opinion of
Counsel; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Corporation in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Corporation enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
With respect to Securities of a series offered in a Periodic Offering, the
Trustee may rely, as to the authorization by the Corporation of any of such
Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
24
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the
Corporation, and the Corporation shall deliver such Security to the Trustee for
cancellation as provided in Section 309, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Corporation may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Corporation will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series, upon surrender of the temporary Securities of such
series at the office or agency of the Corporation in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series, the Corporation shall execute and
the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Corporation shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office or in any other
office or agency of the Corporation in a Place of Payment being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Corporation shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Corporation in a Place of Payment for that series,
the Corporation shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount.
25
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Corporation shall execute, and the Trustee shall authenticate
and deliver, the Securities, which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Corporation evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Corporation or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Corporation and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be assessed against the Holder for any registration
of transfer or exchange of Securities, but the Corporation may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1106 not
involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed, the Corporation shall not be required (A) to issue, register the
transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption and ending at the close of business on
the day of such mailing, or (B) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered,
in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary has notified the
Corporation that it is unwilling or unable to continue as Depositary for
such Global Security and a successor Depositary has not been appointed
26
by the Corporation within 90 days of receipt by the Corporation of such
notification, (B) if at any time the Depositary ceases to be a clearing
agency registered under the Exchange Act at a time when the Depositary is
required to be so registered to act as such Depositary and no successor
Depositary shall have been appointed by the Corporation within 90 days
after it became aware of such cessation, (C) the Corporation, in its sole
discretion, executes and delivers to the Trustee a Company Order to the
effect that such Global Security, together with all other Global Securities
of the same series, shall be exchangeable as described below, (D) an Event
of Default has occurred and is continuing with respect to the Securities of
such series, or (E) there shall exist such circumstances, if any, in
addition to or in lieu of the foregoing as have been specified for this
purpose as contemplated by Section 301. If any of the events described in
clauses (A) through (E) of the preceding sentence occur, the beneficial
owners of interests in the relevant Global Securities will be entitled to
exchange those interests for definitive Securities and, without unnecessary
delay but in any event not later than the earliest date on which those
interests may be so exchanged, the Corporation will deliver to the Trustee
definitive Securities in such form and denominations as are required by or
pursuant to this Indenture, and of the same series, containing identical
terms and in an aggregate principal amount equal to the principal amount of
such Global Securities, such Securities to be duly executed by the
Corporation. On or after the earliest date on which such beneficial
interests may be so exchanged, such Global Securities shall be surrendered
from time to time by the Depositary as shall be specified in the Company
Order with respect thereto (which the Corporation agrees to deliver), and
in accordance with any instructions given to the Trustee and the Depositary
(which instructions shall be in writing but need not be contained in or
accompanied by an Officers' Certificate or be accompanied by an Opinion of
Counsel), as shall be specified in the Company Order with respect thereto
to the Trustee, as the Corporation's agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities as described
above without charge. The Trustee shall authenticate and make available for
delivery, in exchange for each portion of such surrendered Global Security,
a like aggregate principal amount of definitive Securities of the same
series of authorized denominations and of like tenor as the portion of such
Global Security to be exchanged. Promptly following any such exchange in
part, such Global Security shall be returned by the Trustee to such
Depositary or its custodian. If a definitive Security is issued in exchange
for any portion of a Global Security after the close of business at the
place where such exchange occurs on or after (i) any Regular Record Date
for such Security and before the opening of business at that Place of
Payment on the next Interest Payment Date, or (ii) any Special Record Date
for such Security and before the opening of business at such Place of
Payment on the related proposed date for the payment of Defaulted Interest,
as the case may be, interest shall not be payable on such Interest Payment
Date or proposed date for payment, as the case may be, in respect of such
definitive Security, but shall be payable on such Interest Date or proposed
date for payment, as the case may be, only to the Person to whom interest
in respect of such portion of such Global Security shall be payable in
accordance with the provisions of this Indenture.
27
(3) Subject to Clause (2) above, any exchange or transfer of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for or upon transfer of a Global Security or
any portion thereof shall be registered in such names as the Depositary for
such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1106 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Corporation
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Corporation and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice to the
Corporation or the Trustee that such Security has been acquired by a bona fide
purchaser, the Corporation shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Corporation in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Corporation
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Corporation, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
28
Section 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, such payment to be made at the office or agency maintained
for such purpose pursuant to Section 1002; provided, however, that, at the
option of the Corporation, interest on any series of Securities that bear
interest may be paid (i) by check mailed to the address of the Persons entitled
thereto as such addresses shall appear on the Security Register or (ii) by wire
transfer at such place and to such account at a banking institution in the
United States as may be designated in writing to the Trustee at least 15 days
prior to the date for payment by the Persons entitled thereto. Any such
instructions given pursuant to clause (ii) shall remain in effect until revoked
by written notice to the Trustee at least 15 days prior to any payment date by
the Person entitled to such payment.
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Corporation, at
its election in each case, as provided in Clause (1) or (2) below:
(1) The Corporation may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Corporation
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Corporation shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Corporation of such
Special Record Date and, in the name and at the expense of the Corporation,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be given to each Holder of Securities
of such series in the manner set forth in Section 106, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the
29
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following Clause (2).
(2) The Corporation may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange, if any, on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Corporation to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer, the
Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Corporation, the Trustee or any agent of the Corporation or the Trustee shall be
affected by notice to the contrary.
Section 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Corporation may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Corporation may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Corporation has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of as directed by a Company
Order; provided, however, that the Trustee shall not be required to destroy such
canceled Securities.
30
Section 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
-------------
The Corporation in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Corporation shall promptly
notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE IV.
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further effect
with respect to any series of Securities specified in such Company Request
(except as to those surviving rights and obligations specified below), and the
Trustee, at the expense of the Corporation, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series,
when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered (other than (i) Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306 and (ii) Securities of such series for whose
payment money has theretofore been deposited in trust or segregated
and held in trust by the Corporation and thereafter repaid to the
Corporation or discharged from such trust, as provided in Section
1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities of such series not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
31
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Corporation,
and the Corporation, in the case of (B) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust for the
purpose money in an amount sufficient to pay and discharge, and which
shall be applied by the Trustee to pay and discharge, the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and any premium and interest
to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date,
as the case may be;
(2) the Corporation has paid or caused to be paid all other sums
payable hereunder by the Corporation; and
(3) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Corporation to the
Trustee under Section 607, the obligations of the Corporation to any
Authenticating Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the
obligations of the Corporation and the Trustee with respect to the Securities of
such series under Sections 304, 305, 306, 402, 1002, 1003 and 1306 shall survive
such satisfaction and discharge.
Section 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent (other
than the Corporation acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
32
ARTICLE V.
Remedies
Section 501. Events of Default.
-----------------
"Event of Default," wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless it is specifically deleted or modified in the Board Resolution or
Officers' Certificate delivered to the Trustee prior to the issuance of such
series of Securities or supplemental indenture under which such series of
Securities is issued or has been deleted or modified in an indenture
supplemental hereto:
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; provided, however, that if the Corporation is
permitted by the terms of the Securities of such series to defer the
payment in question, the date on which such payment is due and payable
shall be the date on which the Corporation is required to make payment
following such deferral, if such deferral has been elected pursuant to the
terms of the Securities; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the making of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Corporation in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of a series of Securities other
than that series) or the Securities of that series, and continuance of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Corporation by the Trustee or to the
Corporation and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) default occurs under any bond, note, debenture or other
instrument evidencing any indebtedness for money borrowed by the
Corporation (including a default with respect to any other series of debt
securities issued under this Indenture), or under any mortgage, indenture
or other instrument under which there may be issued or by which there may
be secured or evidenced any indebtedness for money borrowed by the
33
Corporation (or the payment of which is guaranteed by the Corporation),
whether such indebtedness or guarantee exists on the date this Indenture or
is issued or entered into following the date of this Indenture, if:
(a) either:
(i) such default results from the failure to pay any such
indebtedness when due; or
(ii) as a result of such default the maturity of such
indebtedness has been accelerated prior to its expressed
maturity; and
(b) the principal amount of such indebtedness, together with the
principal amount of any other such indebtedness in default for failure
to pay any such indebtedness when due or the maturity of which has
been so accelerated, aggregates at least $25 million; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Corporation in an involuntary case
or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Corporation a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Corporation under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Corporation or of any substantial part of its property,
or ordering the winding-up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 90 consecutive days; or
(7) the commencement by the Corporation of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by the Corporation to the
entry of a decree or order for relief in respect of the Corporation in an
involuntary case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against the Corporation, or the
filing by the Corporation of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, or the
consent by the Corporation to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Corporation or of any substantial
part of its property, or the making by the Corporation of an assignment for the
benefit of creditors, or the admission by the Corporation in writing of its
inability to pay its debts generally as they become due, or the authorization of
any such action by the Board of Directors of the Corporation; or
34
(8) any other Event of Default provided with respect to Securities of that
series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) and accrued and unpaid interest, if any, thereon
to be due and payable immediately, by a notice in writing to the Corporation
(and to the Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount) and accrued and unpaid interest shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Event of Default giving rise to such declaration of
acceleration shall, without further act, be deemed to have been waived, and such
declaration and its consequences shall, without further act, be deemed to have
been rescinded and annulled, if
(1) the Corporation has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series which
has become due otherwise than by such declaration of acceleration,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and, to the extent permitted by law, any interest
thereon at the rate or rates prescribed therefor in such Securities
or, if no such rate or rates are so provided, at the rate or
respective rates, as the case may be, of interest borne by such
Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest which has become due otherwise than by
such declaration of acceleration at the rate or rates prescribed
therefor in such Securities or, if no such rate or rates are so
provided, at the rate or respective rates, as the case may be, of
interest borne by such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due the Trustee
under Section 607;
and
35
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of or accrued and unpaid
interest on Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
- -------
The Corporation covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days,
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof, or
(3) default is made in the deposit of any mandatory sinking fund
payment applicable to any Security when due,
the Corporation will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities or, if no such rate or rates are so
provided, at the rate or respective rates, as the case may be, of interest borne
by such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 607.
If the Corporation fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon demand of the Trustee, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Corporation or any other obligor upon such Securities endorsed
thereon and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Corporation or any other obligor upon
such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement
36
of any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Corporation (or any
other obligor upon the Securities), its property or its creditors, the Trustee
(irrespective of whether the principal of such Securities shall then be due and
payable as therein expressed or by declaration of acceleration or otherwise and
irrespective of whether the Trustee shall have made any demand on the
Corporation for the payment of overdue principal, premium, if any, or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization adjustment, composition or other similar
judicial proceeding relative to the Corporation, the Trustee (irrespective of
whether the principal of such Securities shall then be due and payable as
therein expressed or by declaration of acceleration or otherwise and
irrespective of whether the Trustee shall have made any demand on the
Corporation for the payment of overdue principal, premium, if any, or interest)
shall be authorized to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the Securities
of such series and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders of such Securities allowed
in such judicial proceeding, to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee
37
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
607;
Second: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the aggregate
amounts due and payable on such Securities for principal and any premium
and interest; and
Third: To the payment of the balance, if any, to the Corporation or
any other Person or Persons legally entitled thereto.
Section 507. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
38
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium
------------------------------------------------------------
and Interest.
- ------------
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Corporation, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall, to the
extent permitted by law, impair any such right or remedy or constitute a waiver
of any such Event of Default or an acquiescence therein.
39
Every right and remedy given by this Article or by law to the Trustee or to
the Holders may, to the extent permitted by law, be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as
the case may be.
Section 512. Control By Holders.
------------------
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series; provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) subject to Section 601, the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction,
and
(3) such direction is not unduly prejudicial to the rights of other
Holders of Securities of that series not joining in that action.
Section 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series with respect to which any default under
this Indenture shall have occurred and be continuing may, on behalf of the
Holders of all Securities of such series, waive such past default under this
Indenture with respect to such Securities and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
IX cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist and be deemed not
to have occurred, and any Event of Default arising therefrom shall be deemed to
have been cured and not to have occurred, for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
Section 514. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess
40
reasonable costs, including reasonable attorneys' fees and disbursements,
against any party litigant in such suit having due regard to the merits and good
faith of the claims or defenses made by such party litigant, but the provisions
of this Section 514 shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest, if any, on any Security on or
after the respective Stated Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
Section 515. Waiver of Stay or Extension Laws.
--------------------------------
The Corporation covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury law
or any other law wherever enacted, now or at any time hereafter in force, which
would prohibit or forgive the Corporation from paying all or any portion of the
principal of or premium, if any, or interest on any Securities as contemplated
herein or therein or which may affect the covenants or the performance of this
Indenture; and the Corporation (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE VI.
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. The permissive right of
the Trustee to do things enumerated in this Indenture shall not be construed as
a duty to do such things and in no event shall the Trustee be liable for the
consequences of any act or omission except to the extent of the Trustee's
negligence, negligent failure to act or willful misconduct. Whether or not
therein expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
------------------
If a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character
41
specified in Section 501(4) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document (whether in its original or facsimile form) believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Corporation mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein, and any resolution of the Board of
Directors shall be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) prior to the occurrence of an Event of Default, the Trustee shall
undertake to perform only such duties as are specifically set forth in this
Indenture; and in case an Event of Default has occurred and is continuing
with respect to the Securities of any series, the Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Indenture with respect to the Securities of such series, whether at the
request or direction of any of the Holders thereof or pursuant to any other
provision in this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee
42
shall determine to make such further inquiry or investigation, it shall be
entitled, at reasonable times previously notified to the Corporation, to
examine the relevant books, records and premises of the Corporation,
personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(8) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture.
Section 604. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Corporation, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Corporation of Securities or the proceeds thereof.
Section 605. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Corporation, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Corporation with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Corporation.
Section 607. Compensation and Reimbursement.
------------------------------
The Corporation agrees
(1) to pay to the Trustee from time to time such compensation as
shall be agreed to in writing between the Corporation and the Trustee for
all services rendered by
43
it hereunder (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, willful
misconduct or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any and all loss, liability, damage, claim or expense, including taxes
(other than taxes based on the income of the Trustee) incurred without
negligence, willful misconduct or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
The Trustee shall have a first priority lien prior to the Securities upon
all property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 607, except with respect to funds
held in trust for the benefit of the Holders of Securities.
Without limiting any rights available to the Trustee under applicable law,
when the Trustee incurs expenses or renders services in connection with an Event
of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 608. Conflicting Interests.
---------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
Section 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one
or more other series. Each Trustee shall be a Person that is eligible pursuant
to the Trust Indenture Act to act as such and has a combined capital and surplus
of at least $50,000,000. If any such Person publishes reports of
44
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section and to
the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or
more series by giving written notice thereof to the Corporation. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the expense of the
Corporation, any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and the
Corporation.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Corporation or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Corporation or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Corporation by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
45
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Corporation, by Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Corporation and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Corporation. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Corporation or the Holders and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
The Corporation shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
--------------------------------------
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Corporation and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Corporation or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder (subject to the lien provided
for in Section 607).
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Corporation, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which
46
(1) shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Corporation or any successor Trustee,
such retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
Upon request of any such successor Trustee, the Corporation shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 612. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business.
--------
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided that
such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
47
Section 613. Preferential Collection of Claims Against Corporation.
-----------------------------------------------------
If and when the Trustee shall be or become a creditor of the Corporation
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Corporation (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents acceptable to the
Corporation with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Corporation and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by federal or state
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided that such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Corporation. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Corporation. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall
48
be acceptable to the Corporation and shall give notice of such appointment in
the manner provided in Section 106 to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Corporation agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:_____________ U.S. Bank Trust National Association,
As Trustee
By:
-------------------------------------
As Authenticating Agent
By:
-------------------------------------
Authorized Signatory
Section 615. Trustee's Application for Instructions from the
-----------------------------------------------
Corporation.
-----------
Any application by the Trustee for written instructions from the
Corporation may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable to the Corporation for any action
taken by, or omission of, the Trustee in accordance with a proposal included in
such application on or after the date specified in such application (which date
shall not be less than three Business Days after the date any officer of the
Corporation actually receives such application, unless any such officer shall
have consented in writing to any earlier date) unless prior to taking any such
action (or the effective date in the case of an omission), the Trustee shall
have received written instructions in response to such application specifying
the action to be taken or omitted.
49
ARTICLE VII.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND CORPORATION
Section 701. Corporation to Furnish Trustee Names and Addresses of
-----------------------------------------------------
Holders.
-------
The Corporation will furnish or cause to be furnished to the Trustee
(1) 15 days after each Regular Record Date, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the
Holders of Securities of each series as of such Regular Record Date, and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Corporation of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Corporation and the Trustee that neither the Corporation nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
------------------
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
60 days after each May 15 following the date of this Indenture, deliver to
Holders a brief report, dated as of such May 15, which complies with the
provisions of such Section 313(a).
50
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Corporation. The
Corporation will promptly notify the Trustee when any Securities are listed on
any stock exchange or any delisting thereof.
Section 704. Reports by Corporation.
----------------------
The Corporation, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(1) file with the Trustee, within 15 days after it is required to
file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any
of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which it may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if it is
not required to file information, documents or reports pursuant to either
of said Sections, then it shall file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules
and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
it with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, such summaries of any information, documents and
reports required to be filed by it pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE VIII.
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801. Corporation May Consolidate, Etc., on Certain Terms.
---------------------------------------------------
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Corporation with or into any other
Person or Persons (whether or not affiliated with the Corporation), or
successive consolidations or mergers in which the Corporation or its successor
or successors shall be a party or parties, or shall prevent any sale, transfer,
lease or other conveyance of the properties and assets of the Corporation as an
entirety or substantially as an entirety to any other Person (whether or not
affiliated with the Corporation) lawfully entitled to acquire the same;
provided, however, that the Corporation shall not, in any
51
transaction or series of transactions, consolidate or merge with or into any
Person or sell, transfer, lease or otherwise convey the properties and assets of
the Corporation as an entirety or substantially as an entirety to any other
Persons, unless:
(i) either (A) the Corporation shall be the continuing Person
(in the case of a merger) or (B) the successor Person formed by such
consolidation or into which the Corporation is merged or which
acquires by sale, transfer, lease or other conveyance the properties
and assets of the Corporation as an entirety or substantially as an
entirety, is a corporation organized and existing under the laws of
the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture (or indentures,
if at such time there shall be more than one Trustee) supplemental
hereto, executed by such successor corporation, the Trustee and the
Corporation, in form and substance satisfactory to the Trustee, the
due and punctual payment of the principal of and premium, if any, and
interest on all of the Outstanding Securities and the due and punctual
performance and observance of every obligation in this Indenture and
the Outstanding Securities on the part of the Corporation to be
performed or observed;
(ii) immediately after giving effect to such transaction, no
Event of Default and no event which, after notice or lapse of time or
both, would become an Event of Default, has or shall have occurred and
be continuing; and
(iii) the Corporation shall deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, transfer, lease or other conveyance and,
if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 802. Successor Substituted.
---------------------
Upon any consolidation of the Corporation with, or merger of the
Corporation into, any other Person or any sale, transfer, lease or other
conveyance of the properties and assets of the Corporation as an entirety or
substantially as an entirety in accordance with Section 801, the successor
Person formed by such consolidation or into which the Corporation is merged or
to which such sale, transfer, lease or other conveyance is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Corporation under this Indenture with the same effect as if such successor
Person had been named as the Corporation herein, and thereafter, except in the
case of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
52
ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Corporation, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form reasonably satisfactory
to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Corporation
and the assumption by any such successor of the covenants of the
Corporation herein and in the Securities; or
(2) to add to the covenants of the Corporation for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Corporation; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to facilitate the issuance of
Securities in uncertificated form; or
(5) to change or eliminate any of the provisions of this Indenture in
respect of one or more series of Securities, provided that any such change
or elimination (A) shall neither (i) apply to any Security entitled to the
benefit of such provision nor (ii) modify the rights of the Holder of any
such Security with respect to such provision, or (B) add any new provision
to this Indenture, provided that any such addition does not apply to any
Security of any series created prior to the execution of such supplemental
indenture or (C) shall become effective only when there is no such Security
Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
53
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that such action pursuant
to this Clause (9) shall not adversely affect the interests of the Holders
of Securities of any series in any material respect.
Section 902. Supplemental Indentures With Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Corporation and
the Trustee, the Corporation, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture, or
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or premium, if
any, or any installment of principal of or premium, if any, or interest on,
any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount Security
or any other Security which would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or change any
place of payment where or the coin or currency in which any Security or any
premium or interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1006, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause (3) shall not be
54
deemed to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1006, or the deletion of this proviso, in accordance with the
requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 315(a) through 315(d) of the Trust Indenture Act) shall
be fully protected in relying upon, an Opinion of Counsel and an Officers'
Certificate, each stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Corporation shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Corporation, to any such supplemental indenture
55
may be prepared and executed by the Corporation and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE X.
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Corporation covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
-------------------------------
The Corporation will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Corporation in respect of the Securities of that series and this
Indenture may be served. The Corporation will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Corporation shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Corporation hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Corporation may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Corporation of its obligation to maintain an
office or agency in each Place of Payment for Securities of any series for such
purposes. The Corporation will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
Unless otherwise provided in or pursuant to Section 301 of this Indenture,
the Corporation hereby designates as a Place of Payment for each series of
Securities the Borough of Manhattan, The City of New York, and initially
appoints the office of U.S. Bank Trust National Association in the Borough of
Manhattan, The City of New York, as its office or agency in that Place of
Payment for such purpose.
Section 1003. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Corporation shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons
56
entitled thereto a sum sufficient to pay the principal and any premium and
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee of
its action or failure so to act.
Whenever the Corporation shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
or any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Corporation will promptly notify the Trustee of its action or
failure so to act.
The Corporation will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Corporation (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Corporation may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust hereunder by the Corporation or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the
Corporation or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Corporation, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Corporation on Company Request, or (if then held by the Corporation)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Corporation for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Corporation as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Corporation cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, The City of New York, New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Corporation.
57
Section 1004. Corporate Existence.
-------------------
Subject to Article VIII, the Corporation will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises.
Section 1005. Statement by Officers as to Default.
-----------------------------------
The Corporation will deliver to the Trustee, on or before October 15 of
each calendar year or on or before such other day in each calendar year as the
Corporation and the Trustee may from time to time agree upon, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Corporation is in default in the performance and observance of any of the
terms, provisions and conditions of this Indenture (without regard to any period
of grace or requirement of notice provided hereunder) and, if the Corporation
shall be in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
Section 1006. Waiver of Certain Covenants.
---------------------------
Except as otherwise specified as contemplated by Section 301 for Securities
of such series, the Corporation may, with respect to the Securities of any
series, omit in any particular instance to comply with any term, provision or
condition set forth in any covenant provided pursuant to Section 301(19) or
901(2) for the benefit of the Holders of such series if before the time for such
compliance the Holders of not less than a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Corporation and
the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE XI.
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
Section 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Corporation to redeem any Securities shall be evidenced
by a Board Resolution or in another manner specified as contemplated by Section
301 for such Securities. In case of any redemption at the election of the
Corporation, the Corporation shall, at least 45 days prior to the Redemption
Date fixed by the Corporation (unless a shorter notice shall be
58
satisfactory to the Trustee in its sole and absolute discretion), notify the
Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities (A) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (B) pursuant to an election of the
Corporation which is subject to a condition specified in the terms of such
Securities or elsewhere in this Indenture, the Corporation shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by lot and which may provide for the
selection for redemption of a portion of the principal amount of any Security of
such series; provided that the unredeemed portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security. If less than all the
Securities of such series and of a specified tenor are to be redeemed (unless
such redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series and specified tenor
not previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Corporation in writing of the
Securities selected for redemption as aforesaid and, in the case of any
Securities selected for partial redemption as aforesaid, the principal amount
thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part, the
unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
59
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series and of
a specified tenor consisting of more than a single Security are to be
redeemed, the identification (and, in the case of partial redemption of any
such Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series and
of a specified tenor consisting of a single Security are to be redeemed,
the principal amount of the particular Security to be redeemed;
(4) that on the Redemption Date the Redemption Price, together with
accrued interest, if any, to the Redemption Date, will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date;
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price and accrued interest, if any, unless it
shall have been specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required;
(6) that the redemption is for a sinking fund, if such is the case;
(7) the CUSIP number of such Securities, if any, or any other numbers
used by the Depositary to identify such securities; and
(8) such other matters as the Corporation shall deem desirable or
appropriate.
Notice of redemption of Securities to be redeemed at the election of the
Corporation shall be given by the Corporation or, at the Corporation's request,
by the Trustee in the name and at the expense of the Corporation. Any such
notice of redemption shall be irrevocable.
On or prior to any Redemption Date, the Corporation shall deposit, with
respect to the Securities of any series called for redemption pursuant to this
Section 1104, with the Trustee or with a Paying Agent an amount of money in the
applicable currency sufficient to pay the Redemption Price of, and any accrued
interest on, all such Securities or portion thereof which are to be redeemed on
that date.
Section 1105. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities or
portions thereof so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Corporation shall default in the payment of the Redemption Price and
accrued interest, if any) such Securities or portions thereof,
60
if interest-bearing, shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security or portion
thereof shall be paid by the Corporation at the Redemption Price, together with
accrued interest, if any, to the Redemption Date; provided, however, that no
such surrender shall be a condition to such payment if so specified as
contemplated by Section 301 with respect to such Security, and provided further
that, unless otherwise specified as contemplated by Section 301, installments of
interest whose Stated Maturity is on or prior to the Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Regular
Record Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security or, if no rate is prescribed therefor in the Security, at the rate of
interest, if any, borne by such Security.
Section 1106. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Corporation or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Corporation and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Corporation shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series and of like
tenor, of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE XII.
SINKING FUNDS
Section 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities is herein referred to as a "mandatory sinking fund payment," and
any payment in excess of such minimum amount provided for by the terms of such
Securities is herein referred to as an "optional sinking fund payment." If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
61
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Corporation (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Corporation pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited
have not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 45 days prior to each sinking fund payment date for any
Securities, the Corporation will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and stating the basis for such credit and that such Securities have
not been previously so credited and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days prior to each such sinking
fund payment date, the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Corporation in the manner provided in Section 1104. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 1105 and 1106.
ARTICLE XIII.
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Applicability of Article.
------------------------
Unless, pursuant to Section 301, provision is made that either or both of
(A) defeasance of any Securities or any series of Securities under Section 1302
and (B) covenant defeasance of any Securities or any series of Securities under
Section 1303 shall not apply to such Securities of a series, then the provisions
of either or both of Sections 1302 and Section 1303, as the case may be,
together with Sections 1304 and 1305, shall be applicable to the Outstanding
Securities of such series upon compliance with the conditions set forth below in
this Article. Unless otherwise specified pursuant to Section 301, defeasance
under Section 1302 and covenant defeasance under Section 1303 may be effected
only with respect to all, and not less than all, the Securities of any series.
To the extent that the Corporation is permitted, pursuant to Section 301, to
defer interest payments, change the time for interest payments, or change the
Stated Maturity of the Securities
62
of any series or any installment of principal thereof, any such right shall
terminate upon defeasance or covenant defeasance of the Securities of that
series as described below or upon satisfaction and discharge with respect to the
Securities of that series pursuant to Section 401.
Section 1302. Defeasance and Discharge.
------------------------
On and after the date the conditions set forth in Section 1304 are
satisfied, the Corporation may cause itself to be discharged from its
obligations with respect to any Securities or any series of Securities
(hereinafter called "Defeasance"). For this purpose, such Defeasance means that
the Corporation shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Corporation, shall execute
proper instruments acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder: (1) the rights of
Holders of such Securities to receive, solely from the trust fund described in
Section 1304 and as more fully set forth in such Section, payments in respect of
the principal of and any premium and interest on such Securities when payments
are due, (2) the Corporation's and Trustee's obligations with respect to such
Securities under Sections 304, 305, 306, 1002, 1003 and 1306 and with respect to
the Trustee under Section 607, (3) the rights, powers, trusts, duties and
immunities of the Trustee hereunder, and (4) this Article. Subject to compliance
with this Article, Defeasance with respect to any Securities or any series of
Securities by the Corporation is permitted under this Section 1302
notwithstanding the prior exercise by the Corporation of its rights under
Section 1303 with respect to such Securities. Following a Defeasance, payment of
such Securities may not be accelerated because of an Event of Default.
Section 1303. Covenant Defeasance.
-------------------
On and after the date the conditions set forth in Section 1304 are
satisfied, the Corporation may cause itself to be released from its obligations
under any covenants provided pursuant to Section 301(19) or 901(2) with respect
to any Securities or any series of Securities for the benefit of the Holders of
such Securities and the occurrence of any event specified in Sections 501(4)
(with respect to any such covenants provided pursuant to Section 301(19), 901(2)
or 501(8)) shall be deemed not to be or result in an Event of Default with
respect to such Securities as provided in this Section (hereinafter called
"Covenant Defeasance"). For this purpose, such Covenant Defeasance means that,
with respect to such Securities, the Corporation may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any covenants added for the benefit of the Securities of such series
pursuant to any such specified Section (to the extent so specified in the case
of Section 501(4)), whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
Following a Covenant Defeasance, payment of the Securities may not be
accelerated by reference to the covenant described in the description of
Covenant Defeasance above.
63
Section 1304. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to the application of Section 1302 or
Section 1303 to any Securities or any series of Securities, as the case may be:
(1) The Corporation shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A)
money in U.S. dollars in an amount, or (B) Government Obligations which
through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one day before
the due date of any payment due in respect of such Securities, money in an
amount, or (C) a combination thereof, in each case sufficient, without
consideration of any reinvestments of such principal and interest, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee to pay and
discharge, the principal of and any premium and interest on such Securities
on the respective Stated Maturities or on any Redemption Date established
pursuant to Clause (3) below, in accordance with the terms of this
Indenture and such Securities, and any mandatory sinking fund payments or
analogous payments applicable to such Securities when such payments are due
and payable in accordance with the terms of this Indenture and of such
Securities. As used herein, "Government Obligation" means (x) any security
which is (i) a direct obligation of the United States of America or the
government which issued the foreign currency in which such Securities are
payable, for the payment of which its full faith and credit is pledged or
(ii) an obligation of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America or such
government which issued the foreign currency in which such Securities are
payable, the timely payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America or such
other government, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the Securities
Act) as custodian with respect to any Government Obligation which is
specified in clause (x) above and held by such bank for the account of the
holder of such depositary receipt, or with respect to any specific payment
of principal of or interest on any Government Obligation which is so
specified and held, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment
of principal or interest evidenced by such depositary receipt.
(2) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities shall have
occurred and be continuing at the time of such deposit or, with regard to
any such event specified in Sections 501(6)
64
and (7), at any time on or prior to the 90th day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until after such 90th day).
(3) If the monies or Government Obligations or combination thereof
deposited pursuant to Clause (1) above are sufficient to pay the principal
of and premium, if any, and interest, if any, on such Securities provided
such Securities are to be redeemed prior to Stated Maturity (other than
from mandatory sinking fund payments or analogous payments), notice of such
redemption shall have been duly given pursuant to this Indenture or
irrevocable instructions to redeem such Securities on such Redemption Date
and to provide notice of such redemption to Holders satisfactory to the
Trustee shall have been made.
(4) In the case of Defeasance pursuant to Section 1302, the
Corporation shall have delivered to the Trustee an opinion of independent
counsel stating that (x) the Corporation has received from, or there has
been published by, the Internal Revenue Service a ruling, or (y) since the
date of this Indenture there has been a change in applicable federal income
tax law, in either case to the effect that, and based thereon such opinion
of independent counsel shall confirm that, the Holders of such Outstanding
Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Defeasance had not occurred; or, in the
case of Covenant Defeasance pursuant to Section 1303, the Corporation shall
have delivered to the Trustee an opinion of independent counsel to the
effect that the Holders of such Outstanding Securities will not recognize
income, gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred.
(5) The Corporation shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
Section 1305. Deposited Money and Government Obligations to Be Held in
--------------------------------------------------------
Trust; Miscellaneous Provisions.
- -------------------------------
Subject to the provisions of the last paragraph of Section 1003, all money
and Government Obligations (including the proceeds thereof) deposited with the
Trustee pursuant to Section 1304 in respect of any Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
such Paying Agent (other than the Corporation acting as its own Paying Agent) as
the Trustee may determine, to the Holders of such Securities, of all sums due
and to become due thereon in respect of principal and any premium and interest,
but money so held in trust need not be segregated from other funds except to the
extent required by law.
65
The Corporation shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1304 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Corporation from time to time upon Company Request any
money or Government Obligations held by it as provided in Section 1304 with
respect to any Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
Section 1306. Reinstatement.
-------------
If the Trustee or any Paying Agent is unable to apply any moneys or
Government Obligations deposited pursuant to Section 401 or 1304 to pay any
principal of or premium, if any, or interest, if any, on the Securities of any
series by reason of any legal proceeding or any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Corporation's obligations under this Indenture and the
Securities of such series shall be revived and reinstated as though no such
deposit had occurred, until such time as the Trustee or Paying Agent is
permitted to apply all such moneys and Government Obligations to pay the
principal of and premium, if any, and interest, if any, on the Securities of
such series as contemplated by Section 402 or 1305, as the case may be,
provided, however, that if the Corporation makes any payment of the principal of
or premium, if any, or interest, if any, on the Securities of such series
following the reinstatement of its obligations as aforesaid, the Corporation
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the funds held by the Trustee or Paying Agent, but shall not
be entitled to enforce or to receive any payments arising out of, or based upon,
such right of subrogation until the principal of, and premium, if any, and
interest, if any, on all Securities of that series shall have been paid in full.
ARTICLE XIV.
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 1401. Indenture and Securities Solely Corporate Obligations.
-----------------------------------------------------
No recourse for the payment of the principal of or any premium or interest
on any Security, or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of the
Corporation in this Indenture or in any supplemental indenture, or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Corporation or of any successor
corporation, either directly or
66
through the Corporation or any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issue of the Securities.
* * * *
67
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
In Witness Whereof, the parties hereto have caused this Indenture to be
duly executed and attested, each as of the day and year first above written.
PACIFIC ENTERPRISES
By:
---------------------------------
Attest:
- --------------------------
U.S. Bank Trust National Association,
as Trustee
By:
---------------------------------
Authorized Signatory
Senior Indenture
Exhibit 4.2
PACIFIC ENTERPRISES,
AND
SEMPRA ENERGY,
as Guarantor
TO
U.S. BANK TRUST NATIONAL ASSOCIATION
Trustee
------------------------------------
SENIOR INDENTURE
Dated as of ____________
------------------------------------
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
----------- -----------------
Section 310(a)(1).............................................. 609
(a)(2).............................................. 609
(a)(3).............................................. Not Applicable
(a)(4).............................................. Not Applicable
(b)................................................. 608
610
Section 311(a)................................................. 613
(b)................................................. 613
Section 312(a)................................................. 701
702
(b)................................................. 702
(c)................................................. 702
Section 313(a)................................................. 703
(b)................................................. 703
(c)................................................. 703
(d)................................................. 703
Section 314(a)................................................. 704
(a)(4) 101
1005
(b)................................................. Not Applicable
(c)(1).............................................. 102
(c)(2).............................................. 102
(c)(3).............................................. Not Applicable
(d)................................................. Not Applicable
(e)................................................. 102
Section 315(a)................................................. 601
(b)................................................. 602
(c)................................................. 601
(d)................................................. 601
(e)................................................. 514
Section 316(a)................................................. 101
(a)(1)(A)........................................... 502
512
(a)(1)(B)........................................... 513
(a)(2).............................................. Not Applicable
(b)................................................. 508
(c)................................................. 104
Section 317(a)(1).............................................. 503
(a)(2).............................................. 504
(b)................................................. 1003
Section 318(a)................................................. 107
- ---------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
TABLE OF CONTENTS
Page
----
Parties...............................................................................................1
Recitals of the Corporation...........................................................................1
ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION....................................1
Section 101. Definitions.............................................................1
Section 102. Compliance Certificates and Opinions....................................7
Section 103. Form of Documents Delivered to Trustee..................................8
Section 104. Acts of Holders; Record Dates...........................................8
Section 105. Notices, Etc., to Trustee, Corporation and Guarantor...................10
Section 106. Notice to Holders; Waiver..............................................11
Section 107. Conflict with Trust Indenture Act......................................11
Section 108. Effect of Headings and Table of Contents...............................12
Section 109. Successors and Assigns.................................................12
Section 110. Separability Clause....................................................12
Section 111. Benefits of Indenture..................................................12
Section 112. Governing Law..........................................................12
Section 113. Legal Holidays.........................................................12
ARTICLE II. SECURITY FORMS...........................................................................12
Section 201. Forms Generally........................................................12
Section 202. Form of Face of Security...............................................13
Section 203. Form of Reverse of Security............................................15
Section 204. Form of Legend for Global Securities...................................19
Section 205. Form of Trustee's Certificate of Authentication........................19
ARTICLE III. THE SECURITIES..........................................................................19
Section 301. Amount Unlimited; Issuable in Series...................................19
Section 302. Denominations..........................................................22
Section 303. Execution, Authentication, Delivery and Dating.........................23
Section 304. Temporary Securities...................................................24
Section 305. Registration, Registration of Transfer and Exchange....................25
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.......................28
Section 307. Payment of Interest; Interest Rights Preserved.........................28
Section 308. Persons Deemed Owners..................................................30
Section 309. Cancellation...........................................................30
Section 310. Computation of Interest................................................30
Section 311. CUSIP Numbers..........................................................30
ARTICLE IV. SATISFACTION AND DISCHARGE...............................................................31
Section 401. Satisfaction and Discharge of Indenture................................31
Section 402. Application of Trust Money.............................................32
ARTICLE V. REMEDIES..................................................................................32
Section 501. Events of Default......................................................32
Section 502. Acceleration of Maturity; Rescission and Annulment.....................34
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee........35
Section 504. Trustee May File Proofs of Claim.......................................36
Section 505. Trustee May Enforce Claims Without Possession of Securities............37
Section 506. Application of Money Collected.........................................37
Section 507. Limitation on Suits....................................................38
Section 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest...........................................................38
Section 509. Restoration of Rights and Remedies.....................................38
Section 510. Rights and Remedies Cumulative.........................................39
Section 511. Delay or Omission Not Waiver...........................................39
Section 512. Control By Holders.....................................................39
Section 513. Waiver of Past Defaults................................................39
Section 514. Undertaking for Costs..................................................40
Section 515. Waiver of Stay or Extension Laws.......................................40
ARTICLE VI. THE TRUSTEE..............................................................................40
Section 601. Certain Duties and Responsibilities....................................40
Section 602. Notice of Defaults.....................................................41
Section 603. Certain Rights of Trustee..............................................41
Section 604. Not Responsible for Recitals or Issuance of Securities.................42
Section 605. May Hold Securities....................................................42
Section 606. Money Held in Trust....................................................43
Section 607. Compensation, Reimbursement and Indemnity..............................43
Section 608. Conflicting Interests..................................................43
Section 609. Corporate Trustee Required; Eligibility................................44
Section 610. Resignation and Removal; Appointment of Successor......................44
Section 611. Acceptance of Appointment by Successor.................................45
Section 612. Merger, Conversion, Consolidation or Succession to Business............46
Section 613. Preferential Collection of Claims Against Corporation..................47
Section 614. Appointment of Authenticating Agent....................................47
Section 615. Trustee's Application for Instructions from the Corporation............48
ARTICLE VII. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND CORPORATION...................................49
Section 701. Corporation to Furnish Trustee Names and Addresses of Holders..........49
Section 702. Preservation of Information; Communications to Holders.................49
Section 703. Reports by Trustee.....................................................49
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Section 704. Reports by Corporation and the Guarantor...............................50
ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER..........................................50
Section 801. Corporation or Guarantor May Consolidate, Etc., on Certain
Terms..................................................................50
Section 802. Successor Substituted..................................................51
ARTICLE IX. SUPPLEMENTAL INDENTURES..................................................................52
Section 901. Supplemental Indentures Without Consent of Holders.....................52
Section 902. Supplemental Indentures With Consent of Holders........................53
Section 903. Execution of Supplemental Indentures...................................54
Section 904. Effect of Supplemental Indentures......................................54
Section 905. Conformity with Trust Indenture Act....................................54
Section 906. Reference in Securities to Supplemental Indentures.....................54
ARTICLE X. COVENANTS.................................................................................55
Section 1001. Payment of Principal, Premium and Interest.............................55
Section 1002. Maintenance of Office or Agency........................................55
Section 1003. Money for Securities Payments to Be Held in Trust......................55
Section 1004. Corporate Existence....................................................56
Section 1005. Statement by Officers as to Default....................................57
Section 1006. Waiver of Certain Covenants............................................57
ARTICLE XI. REDEMPTION OF SECURITIES.................................................................57
Section 1101. Applicability of Article...............................................57
Section 1102. Election to Redeem; Notice to Trustee..................................57
Section 1103. Selection by Trustee of Securities to Be Redeemed......................58
Section 1104. Notice of Redemption...................................................58
Section 1105. Securities Payable on Redemption Date..................................59
Section 1106. Securities Redeemed in Part............................................60
ARTICLE XII. SINKING FUNDS...........................................................................60
Section 1201. Applicability of Article...............................................60
Section 1202. Satisfaction of Sinking Fund Payments with Securities..................60
Section 1203. Redemption of Securities for Sinking Fund..............................61
ARTICLE XIII. DEFEASANCE AND COVENANT DEFEASANCE.....................................................61
Section 1301. Applicability of Article...............................................61
Section 1302. Defeasance and Discharge...............................................61
Section 1303. Covenant Defeasance....................................................62
Section 1304. Conditions to Defeasance or Covenant Defeasance........................62
Section 1305. Deposited Money and Government Obligations to Be Held in
Trust; Miscellaneous Provisions........................................64
Section 1306. Reinstatement..........................................................65
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ARTICLE XIV. GUARANTEE...............................................................................65
Section 1401. Guarantee..............................................................65
Section 1402. Execution and Delivery of Guarantees...................................67
ARTICLE XV. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS..........................67
Section 1501. Indenture and Securities Solely Corporate Obligations..................67
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INDENTURE, dated as of _____________, among Pacific Enterprises, a
corporation duly organized and existing under the laws of the State of
California (herein called the "Corporation"), having its principal office at 101
Ash Street, San Diego, California 92101, Sempra Energy, a corporation duly
organized and existing under the laws of the State of California (herein called
the "Guarantor"), having its principal office at 101 Ash Street, San Diego,
California 92101, and U.S. Bank Trust National Association, a national banking
association duly organized and existing under the laws of the United States of
America, as Trustee (herein called the "Trustee").
RECITALS OF THE CORPORATION
The Corporation has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured senior
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Corporation, in accordance with its terms, have been done.
RECITALS OF GUARANTOR
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for the guarantee of the Securities as in this Indenture
provided. All things necessary to make this Indenture a valid agreement of
Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting
principles" with respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally accepted in the
United States of America;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
(5) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Board of Directors" means either the board of directors of the Corporation
or the Guarantor, as the case requires, or any duly authorized committee of that
board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Corporation or the Guarantor, as the case
requires, to have been duly adopted by the Board of Directors of the Corporation
or the Guarantor, as the case requires, and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, means a day
other than (i) a Saturday or a Sunday or (ii) a day on which banking
institutions in that Place of Payment are authorized or obligated by law or
executive order to remain closed.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Corporation" means the Person named as the "Corporation" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Corporation" shall mean such successor Person.
"Company Order" or "Company Request" means a written order or request
signed in the name of the Corporation by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
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"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date hereof is located at 550 South Hope Street, 5th Floor,
Los Angeles, California 90071, Attn: Corporate Trust.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part of the
Securities of any series which is issued to a Depositary or a nominee thereof
for such series in accordance with Section 301(17).
"Government Obligation" has the meaning specified in Section 1304.
"Guarantee" means any guarantee of the Guarantor endorsed on a Security
authenticated and delivered pursuant to this Indenture and shall include, unless
otherwise expressly stated or the context otherwise requires, the guarantee set
forth in Section 1401.
"Guarantor" means the Person named as "Guarantor" in the first paragraph of
this Indenture until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Guarantor" shall
include such successor Person.
"Guarantor Order" or "Guarantor Request" means a written order or request
signed in the name of the Guarantor by its Chairman of the Board, its President
or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary, and delivered to the Trustee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into
-3-
pursuant to the applicable provisions hereof, including, for all purposes of
this instrument and any such supplemental indenture, the provisions of the Trust
Indenture Act that are deemed to be a part of and govern this instrument and any
such supplemental indenture, respectively. The term "Indenture" shall also
include the terms of particular series of Securities established as contemplated
by Section 301.
"interest," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in Section
501(4).
"Officers' Certificate" means a certificate signed by either the Chairman
of the Board, the Chief Executive Officer, the Vice Chairman of the Board, the
President or a Vice President, and also signed by the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary, of the Corporation or the Guarantor, as the case requires,
and delivered to the Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 1005 shall be the principal executive,
financial or accounting officer of the Corporation or the Guarantor, as the case
requires.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Corporation or the Guarantor, as the case requires, or other counsel who
shall be reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities for whose payment or redemption the necessary amount
of money or Government Obligations has been theretofore deposited with the
Trustee or any Paying Agent (other than the Corporation) in trust or set
aside and segregated in trust by the Corporation (if the Corporation shall
act as its own Paying Agent) for the Holders of
-4-
such Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Corporation proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Corporation;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Corporation or any other obligor upon the Securities or any
Affiliate of the Corporation or of any such other obligor, whether of record or
beneficially, shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver or other
action, only Securities which the Trustee actually knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Corporation or any other obligor upon the Securities or
any Affiliate of the Corporation or of any such other obligor.
"Paying Agent" means any Person authorized by the Corporation to pay the
principal of or any premium or interest on any Securities on behalf of the
Corporation or the Guarantor.
"Periodic Offering" means an offering of Securities of a series from time
to time the specific terms of which Securities, including without limitation the
rate or rates of interest or formula for determining the rate or rates of
interest thereon, if any, the Stated Maturity or Maturities thereof and the
redemption provisions, if any, with respect thereto, are to be determined by the
Corporation upon the issuance of such Securities.
-5-
"Person" means any individual, corporation, partnership, limited liability
company or corporation, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any series,
means the place or places where the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, any assistant vice
president , any senior trust officer, any trust officer or assistant trust
officer, the controller or any assistant controller or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307(1).
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the date on which the principal of such Security or such
installment of principal or interest is due and payable, in the
-6-
case of such principal, as such date may be advanced or extended as provided
pursuant to the terms of such Security established pursuant to Section 301.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" shall mean, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Vice President," when used with respect to the Corporation or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
Section 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Corporation or the Guarantor to the
Trustee to take any action under any provision of this Indenture, the
Corporation and the Guarantor shall each furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Corporation or the Guarantor,
or an Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Corporation or the
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which such
officer's certificate or opinion is based are erroneous. Any such certificate or
opinion of counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Corporation or the Guarantor stating that the information with respect to
such factual matters is in the possession of the Corporation or the Guarantor,
as the case requires, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever, subsequent to the receipt by the Trustee of any Board Resolution,
Officers' Certificate, Opinion of Counsel or other document or instrument, a
clerical, typographical or other inadvertent or unintentional error or omission
shall be discovered therein, a new document or instrument may be substituted
therefor in corrected form with the same force and effect as if originally filed
in the corrected form and, irrespective of the date or dates of the actual
execution and/or delivery thereof, such substitute document or instrument shall
be deemed to have been executed and/or delivered as of the date or dates
required with respect to the document or instrument for which it is substituted.
Anything in this Indenture to the contrary notwithstanding, if any action has
been taken by or at the request of the Corporation or the Guarantor in reliance
on an error or omission in the original document which has been corrected as
aforesaid, the action so taken shall not be invalidated or otherwise rendered
ineffective but shall be and remain in full force and effect, except to the
extent that such action was a result of willful misconduct or bad faith. Without
limiting the generality of the foregoing, any Securities or Guarantees issued
under the authority of such defective document or instrument shall nevertheless
be the valid obligations of the Corporation or the Guarantor, as the case may
be, entitled to the benefits of this Indenture equally and ratably with all
other Outstanding Securities or Guarantees, as the case may be, except as
aforesaid.
Section 104. Acts of Holders; Record Dates.
-----------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such
-8-
Holders in person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Corporation and the Guarantor. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee, the Corporation
and the Guarantor, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than the signer's individual capacity, such
certificate or affidavit shall also constitute sufficient proof of the signer's
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, the Corporation or
the Guarantor in reliance thereon, whether or not notation of such action is
made upon such Security.
Each of the Corporation and the Guarantor may set any day as a record date
for the purpose of determining the Holders of Outstanding Securities of any
series entitled to give, make or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Securities of such series;
provided that the Corporation and the Guarantor may not set a record date for,
and the provisions of this paragraph shall not apply with respect to, the giving
or making of any notice, declaration, request or direction referred to in the
next paragraph. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities of the relevant series on such record date,
and no other Holders, shall be entitled to take or revoke the relevant action,
whether or not such Holders remain Holders after such record date; provided that
no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Corporation or the Guarantor from
setting a new record date for any action for which a record date has previously
been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be canceled and of no
effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Corporation or the
Guarantor, at their own expense, shall
-9-
cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to each
Holder of Securities of the relevant series in the manner set forth in Section
106.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join Zin the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction or to revoke
the same, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing in
this paragraph shall be construed to prevent the Trustee from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the
Corporation's or Guarantor's expense, shall cause notice of such record date,
the proposed action by Holders and the applicable Expiration Date to be sent to
the Corporation and the Guarantor in writing and to each Holder of Securities of
the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record date may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106 on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
Section 105. Notices, Etc., to Trustee, Corporation and Guarantor.
----------------------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
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(1) the Trustee by any Holder or by the Corporation shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing, which may be made via facsimile, to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust, or
(2) the Corporation by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or filed in writing, which may be made
via facsimile, or mailed, first-class postage prepaid, to the Corporation
addressed to it at the address of its principal office specified in the
first paragraph of this instrument, Attention: Treasurer, or at any other
address previously furnished in writing to the Trustee by the Corporation.
(3) the Guarantor by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing, which may be made via
facsimile, or mailed, first-class postage prepaid, to the Guarantor
addressed to it at the address of its principal office specified in the
first paragraph of this instrument, Attention: Treasurer, or at any other
address previously furnished in writing to the Trustee by the Guarantor.
Section 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed by
such Holders or the Corporation with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
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Section 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Corporation or the
Guarantor shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities or the
Guarantees shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities or the Guarantees, express
or implied, shall give to any Person, other than the parties hereto, their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 112. Governing Law.
-------------
This Indenture, the Securities and the Guarantees shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflicts of laws principles thereof.
Section 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity.
ARTICLE II.
SECURITY FORMS
Section 201. Forms Generally.
---------------
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution, in one or more indentures supplemental hereto or in an
Officers' Certificate pursuant to Section 301 hereof, in
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each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities or Guarantees, as the case
may be, as evidenced by their execution thereof. If the form of Securities of
any series or Guarantees endorsed thereon is established by action taken by or
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Corporation
and delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities and Guarantees endorsed thereon shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities or
Guarantees, as evidenced by their execution thereof.
Section 202. Form of Face of Security.
------------------------
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder or by the Depositary.]
PACIFIC ENTERPRISES
---------------------
GUARANTEED AS TO PAYMENT OF
PRINCIPAL, PREMIUM, IF ANY, AND INTEREST BY SEMPRA ENERGY
$ ----------
No. _________ CUSIP No. __________
Pacific Enterprises, a corporation duly organized and existing under the
laws of the State of California (herein called the "Corporation," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to______________________________________
________________________, or registered assigns, the principal sum of _________
______________ Dollars ($___________) on _________________________ [if the
Security is to bear interest prior to Maturity and interest payment periods are
not extendable, insert - , and to pay interest thereon from _______________ or
from the most recent date to which interest has been paid or duly provided for,
[insert - semi-annually, quarterly, monthly or other description of the relevant
payment period] on [________________, ________,] and ______________ in each year
(each, an "Interest Payment Date"), commencing ____________________, and at
Maturity at the rate of _____% per annum, until the principal hereof is paid or
made available for payment [if applicable, insert - , provided that any
principal hereof or premium, if any, or interest hereon which is not paid when
due shall bear interest at the rate of ___% per annum (to the extent that the
payment of such interest shall be legally enforceable) from the dates such
amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand]. Interest on this Security shall be
calculated on the basis of a 360-day year consisting of twelve 30-day months.
-13-
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the [___________________________] (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for on any Interest
Payment Date will forthwith cease to be payable to the Holder on such Regular
Record Date by virtue of having been such Holder and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert - The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ____% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of ____% per annum (to the extent that the payment of such interest on interest
shall be legally enforceable), from the date of such demand until the amount so
demanded is paid or made available for payment. Interest on any overdue interest
shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert - any such] interest on this Security will be made at the office or
agency of the Corporation maintained for that purpose in the Borough of
Manhattan, The City of New York, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts [if applicable, insert - ; provided, however, that at the option
of the Corporation payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by wire transfer at such place and to such account at a
banking institution in the United States as may be designated in writing to the
Trustee at least fifteen (15) days prior to the date for payment by the Person
entitled thereto]. [In the case of a Global Security registered in the name of
the Depository Trust Company or its nominee, insert--Notwithstanding the
foregoing, so long as the Holder of this Security is the Depositary or its
nominee, payment of the principal of (and premium, if any) and [if applicable,
insert--any such] interest on this Security will be made by wire transfer of
immediately available funds.]
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
-14-
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly
executed.
Dated: PACIFIC ENTERPRISES
By:
-------------------------------------
Attest:
- --------------------------------
Section 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of securities of the
Corporation (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of ________, ______ (herein called the
"Indenture," which term shall have the meaning assigned to it in such
instrument), between the Corporation and U.S. Bank Trust National Association,
as Trustee (herein called the "Trustee," which term includes any successor
trustee under the Indenture), and reference is hereby made to the Indenture for
a statement of the respective rights, limitation of rights, duties and
immunities thereunder of the Corporation, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert - , limited (subject to exceptions
provided in the Indenture) in aggregate principal amount to $________________-
__________].
If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' nor more than 60 days' prior written
notice by mail, [if applicable, insert - (1) on ____________ in any year
commencing with the year _____ and ending with the year _____ through operation
of the sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [if applicable, insert - on or after
___________, 19__], as a whole or in part, at the election of the Corporation,
at the following Redemption Prices (expressed as percentages of the principal
amount): If redeemed [if applicable, insert - on or before _________________,
___%, and if redeemed] during the 12-month period beginning _________ of the
years indicated,
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
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and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption [if applicable, insert - (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Regular Record Dates referred to on the face hereof, all as provided in
the Indenture.]
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' nor more than 60 days' prior written
notice by mail, (1) on ____________ in any year commencing with the year ______
and ending with the year _____ through operation of the sinking fund for this
series at the Redemption Prices for redemption through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [if applicable, insert - on or after _____________],
as a whole or in part, at the election of the Corporation, at the Redemption
Prices for redemption otherwise than through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below:
If redeemed during the 12- month period beginning ________ of the years
indicated,
Redemption Price Redemption Price for
for Redemption Otherwise
Redemption Through Than
Operation of the Through Operation
Year Sinking Fund of the Sinking Fund
---- ------------------ -------------------------
and thereafter at a Redemption Price equal to _________% of the principal
amount, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the Redemption Date,
but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Regular Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the Corporation may
not, prior to _________, redeem any Securities of this series as contemplated by
[if applicable, insert - Clause (2) of] the preceding paragraph as a part of, or
in anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Corporation
(calculated in accordance with generally accepted financial practice) of less
than ____% per annum.]
[If applicable, insert - The sinking fund for this series provides for the
redemption on __________ in each year beginning with the year _______ and ending
with the year ______ of [if applicable, insert - not less than $___________
("mandatory sinking fund") and not more than] $____________ aggregate principal
amount of Securities of this series. Securities of this series acquired or
redeemed by the Corporation otherwise than through [if applicable, insert -
-16-
mandatory] sinking fund payments may be credited against subsequent [if
applicable, insert - mandatory] sinking fund payments otherwise required to be
made [if applicable, insert - , in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert - In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is not subject to redemption, insert - The Securities are
not subject to redemption prior to the Stated Maturity of the principal
thereof.]
[If applicable, insert - The Indenture contains provisions for defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security] [, in
each case] upon compliance with certain conditions set forth in the Indenture.]
As provided in the Indenture, the obligations of the Corporation under this
Security are unconditionally guaranteed on a senior basis pursuant to the
Guarantee endorsed hereon.
[If the Security is not an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of and accrued and unpaid interest on the Securities
of this series may be declared due and payable in the manner and with the effect
provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to [insert formula for determining the
amount]. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Corporation's obligations in respect of the payment of
the principal of and premium and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the Holders of the Securities of each series
affected under the Indenture at any time by the Corporation and the Trustee with
the consent of the Holders of a majority in principal amount of the Securities
of each series at the time Outstanding affected thereby. The Indenture contains
provisions permitting the Holders of not less than a majority in principal
amount of the Securities of any series at the time Outstanding with respect to
which a default under the Indenture shall have occurred and be continuing, on
behalf of the Holders of all Securities of such series, to waive, with certain
exceptions, such past default with respect to such series and its consequences.
The Indenture also permits the Holders of not less than a majority in principal
amount of the Securities of any series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Corporation
with certain provisions of the Indenture. Any such consent or waiver by the
Holder of this Security shall be conclusive and
-17-
binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange therefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee, such Holder or Holders shall have offered the Trustee
reasonable indemnity, and the Trustee, for 60 days after its receipt of such
notice, shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and the Trustee shall have failed to institute
any such proceeding, for 60 days after receipt of such notice, request and offer
of indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Corporation, which
is absolute and unconditional, to pay the principal of [and premium, if any,]
and interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Corporation in any place where the principal of and any premium
and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Corporation and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be
-18-
overdue, and neither the Corporation, the Trustee nor any such agent shall be
affected by notice to the contrary.
This Security shall be governed by and construed in accordance with the
laws of the State of New York, without regard to conflict of law principles
thereof.
All terms used in this Security which are defined in the Indenture and
not defined herein shall have the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Global Securities.
------------------------------------
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section 205. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
U.S. Bank Trust National Association,
As Trustee
By:
----------------------------------
Authorized Signatory
Dated: _________________
ARTICLE III.
The Securities
Section 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
-19-
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1106 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable or the method by which such date shall be determined and
the right, if any, to shorten or extend the date on which the principal of
any Securities of the series is payable and the conditions to any such
change;
(5) the rate or rates at which any Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined; the date or dates from which any such interest shall accrue;
the Interest Payment Dates on which any such interest shall be payable; the
manner (if any) of determination of such Interest Payment Dates; and the
Regular Record Date, if any, for any such interest payable on any Interest
Payment Date;
(6) the right, if any, to extend the interest payment periods and the
terms of such extension or extensions;
(7) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable and whether, if
acceptable to the Trustee, any principal of such Securities shall be
payable without presentation or surrender thereof;
(8) the period or periods within which, or the date or dates on
which, the price or prices at which and the terms and conditions upon which
any Securities of the series may be redeemed, in whole or in part, at the
option of the Corporation and, if other than by a Board Resolution, the
manner in which any election by the Corporation to redeem the Securities
shall be evidenced;
(9) the obligation, if any, of the Corporation to redeem or purchase
any Securities of the series pursuant to any sinking fund, purchase fund or
analogous provisions or at the option of the Holder thereof and the period
or periods within which,
-20-
the price or prices at which and the terms and conditions upon which any
Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(11) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be
determined;
(12) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and
the manner of determining the equivalent thereof in the currency of the
United States of America for any purpose, including for purposes of the
definition of "Outstanding" in Section 101;
(13) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Corporation or the
Holder thereof, in one or more currencies or currency units other than that
or those in which such Securities are stated to be payable, the currency,
currencies or currency units in which the principal of or any premium or
interest on such Securities as to which such election is made shall be
payable, the periods within which and the terms and conditions upon which
such election is to be made and the amount so payable (or the manner in
which such amount shall be determined);
(14) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(15) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(16) if either or both of Sections 1302 and 1303 do not apply to any
Securities of the series;
(17) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositary or Depositaries for such
Global Securities, the form of any legend or legends which shall be borne
by any such Global Security in addition to or in lieu of that set forth in
Section 204 and any circumstances in addition to or in lieu of those set
forth in Clause (2) of the last paragraph of Section 305 in which any such
Global Security may be exchanged in whole or in part for Securities
registered, and any transfer of such Global
-21-
Security in whole or in part may be registered, in the name or names of
Persons other than the Depositary for such Global Security or a nominee
thereof;
(18) any addition, modification or deletion of any Events of Default
or covenants provided with respect to any Securities of the series and any
change in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable pursuant
to Section 502;
(19) any addition to or change in the covenants set forth in Article X
which applies to Securities of the series; and
(20) any terms of the Guarantees with respect to the Securities of
such series in addition to those set forth in Section 1401, or any
exceptions to or changes in those set forth in Section 1401; and
(21) any other terms of the series.
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Corporation and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms or the manner of determining the terms of
the series.
With respect to Securities of a series offered in a Periodic Offering, the
Board Resolution (or action taken pursuant thereto), Officers' Certificate or
supplemental indenture referred to above may provide general terms or parameters
for Securities of such series and provide either that the specific terms of
particular Securities of such series shall be specified in a Company Order or
that such terms shall be determined by the Corporation in accordance with other
procedures specified in a Company Order as contemplated by the third paragraph
of Section 303.
Notwithstanding Section 301(2) herein and unless otherwise expressly
provided with respect to a series of Securities, a series of Securities may from
time to time be "re-opened" and the aggregate principal amount of any such
series of Securities may be increased and additional Securities of such series
may be issued up to the maximum aggregate principal amount authorized with
respect to such series as increased.
Section 302. Denominations.
-------------
The Securities of each series shall be issuable only in fully registered
form without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
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Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Corporation by its
Chairman of the Board, its Vice Chairman of the Board, its Chief Executive
Officer, its President or one of its Vice Presidents (which may be by facsimile)
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Corporation shall bind the
Corporation, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
Unless otherwise provided as contemplated by Section 301, with respect to
any series of Securities, the Guarantees to be endorsed on any series of
Securities shall be executed and delivered in accordance with the provisions of
Section 1402.
At any time and from time to time after the execution and delivery of this
Indenture, the Corporation may deliver Securities of any series executed by the
Corporation with the Guarantees executed by the Guarantor, to the Trustee for
authentication, together with a Company Order and a Guarantor Order for the
authentication and delivery of such Securities and for the delivery of the
Guarantees endorsed thereon, and the Trustee in accordance with the Company
Order and the Guarantor Order shall authenticate such Securities and deliver
such Securities and Guarantees endorsed thereon, provided, however, that in the
case of Securities offered in a Periodic Offering, the Trustee shall
authenticate such Securities and deliver such Securities and Guarantees endorsed
thereon from time to time in accordance with such other procedures (including,
without limitation, the receipt by the Trustee of electronic instructions from
the Corporation or its duly authorized agents, promptly confirmed in writing)
acceptable to the Trustee as may be specified by or pursuant to a Company Order
and a Guarantor Order delivered to the Trustee prior to the time of the first
authentication of Securities of such series. If the form or terms of the
Securities of the series or the Guarantees endorsed thereon have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities and the Guarantees
endorsed thereon and accepting the additional responsibilities under this
Indenture in relation to such Securities and the Guarantees endorsed thereon,
the Trustee shall be furnished, and (subject to Section 601) shall be fully
protected in relying upon, an Opinion of Counsel stating,
(1) if the forms of such Securities or Guarantees have been
established by or pursuant to Board Resolution as permitted by Section 201,
that such forms have been established in conformity with the provisions of
this Indenture;
(2) if the terms of such Securities or Guarantees have been, or in
the case of Securities of a series offered in a Periodic Offering, will be,
established by or pursuant to Board Resolution as permitted by Section 301,
that such terms have been, or in the case of Securities of a series offered
in a Periodic Offering, will be, established in conformity with the
provisions of this Indenture, subject, in the case of Securities of a
series offered in a Periodic Offering, to any conditions specified in such
Opinion of Counsel; and
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(3) that such Securities and the Guarantees endorsed thereon, when
authenticated and delivered by the Trustee and issued by the Corporation
and the Guarantor in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and legally binding
obligations of the Corporation and the Guarantor enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order, the Guarantor Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at or
prior to the authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued.
With respect to Securities of a series offered in a Periodic Offering, the
Trustee may rely, as to the authorization by the Corporation and the Guarantor
of any of such Securities and Guarantees endorsed thereon, the forms and terms
thereof and the legality, validity, binding effect and enforceability thereof,
upon the Opinion of Counsel and the other documents delivered pursuant to
Sections 201 and 301 and this Section, as applicable, in connection with the
first authentication of Securities of such series.
Each Security shall be dated the date of its authentication.
No Security or Guarantee endorsed thereon shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication substantially in the
form provided for herein executed by the Trustee by manual signature of an
authorized signatory, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
hereunder and that such Security and the Guarantee endorsed thereon have been
duly delivered hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Corporation, and the Corporation shall deliver such Security to the Trustee for
cancellation as provided in Section 309, for all purposes of this Indenture such
Security (and the Guarantee endorsed thereon) shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Corporation may execute, and upon Company Order and Guarantor Order the Trustee
shall authenticate and
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deliver, temporary Securities (with temporary Guarantees endorsed thereon) which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Securities and Guarantees in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities or Guarantees, as the case may be, may
determine, as evidenced by their execution of such Securities or Guarantees, as
the case may be.
If temporary Securities or Guarantees of any series are issued, the
Corporation will cause definitive Securities and Guarantees of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities and Guarantees of such series, the temporary Securities and
Guarantees of such series shall be exchangeable for definitive Securities of
such series, with the definitive Guarantees of the Guarantor endorsed thereon,
upon surrender of the temporary Securities of such series at the office or
agency of the Corporation in a Place of Payment for that series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series, the Corporation shall execute and the Trustee shall
authenticate and deliver in exchange therefor one or more definitive Securities
of the same series, of any authorized denominations and of like tenor and
aggregate principal amount, with the definitive Guarantees executed by the
Guarantor endorsed thereon. Until so exchanged, the temporary Securities of any
series and the Guarantees endorsed thereon shall in all respects be entitled to
the same benefits under this Indenture as definitive Securities of such series
and tenor and definitive Guarantees.
Section 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Corporation shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office or in any other
office or agency of the Corporation in a Place of Payment being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Corporation shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Corporation in a Place of Payment for that series,
the Corporation shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount, with the Guarantees executed by the Guarantor
endorsed thereon.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Corporation shall execute, and the Trustee shall authenticate
and deliver, the Securities, with the Guarantees of the Guarantor endorsed
thereon, which the Holder making the exchange is entitled to receive.
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All Securities and Guarantees issued upon any registration of transfer or
exchange of Securities and the Guarantees endorsed thereon shall be the valid
obligations of the Corporation and the Guarantor, respectively, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities and Guarantees surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Corporation, the Guarantor or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Corporation, the Guarantor and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be assessed against the Holder for any registration
of transfer or exchange of Securities, but the Corporation may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1106 not
involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed, the Corporation shall not be required (A) to issue, register the
transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption and ending at the close of business on
the day of such mailing, or (B) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered,
in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary has notified the
Corporation that it is unwilling or unable to continue as Depositary for
such Global Security and a successor Depositary has not been appointed by
the Corporation within 90 days of receipt by the Corporation of such
notification, (B) if at any time the Depositary ceases to be a clearing
agency registered under the Exchange Act at a time when the Depositary is
required to be so registered to act as such Depositary and no successor
Depositary shall have been appointed by the Corporation within 90 days
after it became aware of such cessation, (C) the Corporation, in its sole
discretion, executes and delivers to the Trustee a Company Order to the
effect that such
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Global Security, together with all other Global Securities of the same
series, shall be exchangeable as described below, (D) an Event of Default
has occurred and is continuing with respect to the Securities of such
series, or (E) there shall exist such circumstances, if any, in addition to
or in lieu of the foregoing as have been specified for this purpose as
contemplated by Section 301. If any of the events described in clauses (A)
through (E) of the preceding sentence occur, the beneficial owners of
interests in the relevant Global Securities will be entitled to exchange
those interests for definitive Securities and, without unnecessary delay
but in any event not later than the earliest date on which those interests
may be so exchanged, the Corporation will deliver to the Trustee definitive
Securities in such form and denominations as are required by or pursuant to
this Indenture, and of the same series, containing identical terms and in
an aggregate principal amount equal to the principal amount of such Global
Securities, such Securities to be duly executed by the Corporation. On or
after the earliest date on which such beneficial interests may be so
exchanged, such Global Securities shall be surrendered from time to time by
the Depositary as shall be specified in the Company Order with respect
thereto (which the Corporation agrees to deliver), and in accordance with
any instructions given to the Trustee and the Depositary (which
instructions shall be in writing but need not be contained in or
accompanied by an Officers' Certificate or be accompanied by an Opinion of
Counsel), as shall be specified in the Company Order with respect thereto
to the Trustee, as the Corporation's agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities as described
above without charge. The Trustee shall authenticate and make available for
delivery, in exchange for each portion of such surrendered Global Security,
a like aggregate principal amount of definitive Securities of the same
series of authorized denominations and of like tenor as the portion of such
Global Security to be exchanged. Promptly following any such exchange in
part, such Global Security shall be returned by the Trustee to such
Depositary or its custodian. If a definitive Security is issued in exchange
for any portion of a Global Security after the close of business at the
place where such exchange occurs on or after (i) any Regular Record Date
for such Security and before the opening of business at that Place of
Payment on the next Interest Payment Date, or (ii) any Special Record Date
for such Security and before the opening of business at such Place of
Payment on the related proposed date for the payment of Defaulted Interest,
as the case may be, interest shall not be payable on such Interest Payment
Date or proposed date for payment, as the case may be, in respect of such
definitive Security, but shall be payable on such Interest Date or proposed
date for payment, as the case may be, only to the Person to whom interest
in respect of such portion of such Global Security shall be payable in
accordance with the provisions of this Indenture.
(3) Subject to Clause (2) above, any exchange or transfer of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for or upon transfer of a Global Security or
any portion thereof shall be registered in such names as the Depositary for
such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1106 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such
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Security is registered in the name of a Person other than the Depositary
for such Global Security or a nominee thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Corporation
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount, having a Guarantee executed by the Guarantor endorsed thereon and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Corporation, the Guarantor and the
Trustee (i) evidence to their satisfaction of the destruction, loss or theft of
any Security and (ii) such security or indemnity as required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Corporation, the Guarantor or the Trustee that such Security has
been acquired by a bona fide purchaser, the Corporation shall execute and the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and of like tenor and
principal amount, having a Guarantee executed by the Guarantor endorsed thereon
and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Corporation or the Guarantor in its
discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Corporation
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series and any Guarantee endorsed thereon issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security and
any Guarantee endorsed thereon shall constitute an original additional
contractual obligation of the Corporation and the Guarantor, respectively,
whether or not the destroyed, lost or stolen Security or Guarantee shall be at
any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of
that series duly issued hereunder and the Guarantees endorsed on such
Securities.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, such payment to be made at the office or agency maintained
for such purpose pursuant to Section 1002; provided, however, that, at the
option of the Corporation, interest on
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any series of Securities that bear interest may be paid (i) by check mailed to
the address of the Persons entitled thereto as such addresses shall appear on
the Security Register or (ii) by wire transfer at such place and to such account
at a banking institution in the United States as may be designated in writing to
the Trustee at least 15 days prior to the date for payment by the Persons
entitled thereto. Any such instructions given pursuant to clause (ii) shall
remain in effect until revoked by written notice to the Trustee at least 15 days
prior to any payment date by the Person entitled to such payment.
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Corporation, at
its election in each case, as provided in Clause (1) or (2) below:
(1) The Corporation or the Guarantor may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Corporation or the Guarantor shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at the same time the
Corporation or the Guarantor, as the case may be, shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Corporation and the
Guarantor of such Special Record Date and, in the name and at the expense
of the Corporation or the Guarantor, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be given to each Holder of Securities of such series in the manner set
forth in Section 106, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Corporation or the Guarantor may make payment of any
Defaulted Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any securities exchange,
if any, on which such Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Corporation or
the Guarantor to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the Trustee.
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Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer, the
Corporation, the Guarantor, the Trustee and any agent of the Corporation, the
Guarantor or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of and any premium and (subject to Section 307) any interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and none of the Corporation, the Guarantor, the Trustee or any agent of
the Corporation, the Guarantor or the Trustee shall be affected by notice to the
contrary.
Section 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Corporation or the Guarantor may at
any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Corporation or the Guarantor may
have acquired in any manner whatsoever, and may deliver to the Trustee (or to
any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Corporation has not issued and
sold, and all Securities so delivered shall be promptly canceled by the Trustee.
No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Securities held by the Trustee shall be disposed
of as directed by a Company Order or Guarantor Order; provided, however, that
the Trustee shall not be required to destroy such canceled Securities.
Section 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
-------------
The Corporation in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Corporation shall promptly
notify the Trustee of any change in the "CUSIP" numbers.
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ARTICLE IV.
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further effect
with respect to any series of Securities specified in such Company Request
(except as to those surviving rights and obligations specified below), and the
Trustee, at the expense of the Corporation, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series,
when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered (other than (i) Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306 and (ii) Securities of such series for whose
payment money has theretofore been deposited in trust or segregated
and held in trust by the Corporation and thereafter repaid to the
Corporation or discharged from such trust, as provided in Section
1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities of such series not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Corporation,
and the Corporation, in the case of (B) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust for the
purpose money in an amount sufficient to pay and discharge, and which
shall be applied by the Trustee to pay and discharge, the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and any premium and interest
to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date,
as the case may be;
(2) the Corporation or the Guarantor has paid or caused to be paid
all other sums payable hereunder by the Corporation and the Guarantor; and
(3) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for
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relating to the satisfaction and discharge of this Indenture as to such
series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Corporation and the
Guarantor to the Trustee under Section 607, the obligations of the Corporation
to any Authenticating Agent under Section 614 and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of Clause (1) of this
Section, the obligations of the Corporation and the Trustee with respect to the
Securities of such series under Sections 304, 305, 306, 402, 1002, 1003 and 1306
shall survive such satisfaction and discharge.
Section 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent (other
than the Corporation acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE V.
REMEDIES
Section 501. Events of Default.
-----------------
"Event of Default," wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless it is specifically deleted or modified in the Board Resolution or
Officers' Certificate delivered to the Trustee prior to the issuance of such
series of Securities or supplemental indenture under which such series of
Securities is issued or has been deleted or modified in an indenture
supplemental hereto:
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; provided, however, that if the Corporation is
permitted by the terms of the Securities of such series to defer the
payment in question, the date on which such payment is due and payable
shall be the date on which the Corporation is required to make payment
following such deferral, if such deferral has been elected pursuant to the
terms of the Securities; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the making of any sinking fund payment, when and as
due by the terms of a Security of that series; or
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(4) default in the performance, or breach, of any covenant or
warranty of the Corporation or the Guarantor in this Indenture (other than
a covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of a series of
Securities other than that series) or the Securities of that series, and
continuance of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the Corporation and the
Guarantor by the Trustee or to the Corporation, the Guarantor and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the cessation of effectiveness of the Guarantee endorsed on any
Security of such series or the finding by any judicial proceeding that the
Guarantee endorsed on any Security of such series is unenforceable or
invalid or the denial or disaffirmation by the Guarantor of its obligations
under the Guarantee endorsed on any Security of such series; or
(6) default occurs under any bond, note, debenture or other
instrument evidencing any indebtedness for money borrowed by the
Corporation or the Guarantor (including a default with respect to any other
series of Securities issued under this Indenture), or under any mortgage,
indenture or other instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness for money borrowed by
the Corporation or the Guarantor (or the payment of which is guaranteed by
the Corporation or the Guarantor), whether such indebtedness or guarantee
exists on the date this Indenture or is issued or entered into following
the date of this Indenture, if:
(a) either:
(i) such default results from the failure to pay any such
indebtedness when due; or
(ii) as a result of such default the maturity of such
indebtedness has been accelerated prior to its expressed
maturity; and
(b) the principal amount of such indebtedness, together with the
principal amount of any other such indebtedness in default for failure to
pay any such indebtedness when due or the maturity of which has been so
accelerated, aggregates at least $25 million; or
(7) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Corporation or the Guarantor in an
involuntary case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or order
adjudging the Corporation or the Guarantor a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Corporation or the Guarantor under any
applicable federal or state law, or appointing a custodian, receiver,
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liquidator, assignee, trustee, sequestrator or other similar official of
the Corporation or the Guarantor or of any substantial part of the property
of the Corporation or the Guarantor, or ordering the winding-up or
liquidation of the affairs of the Corporation or the Guarantor, and the
continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 90 consecutive days; or
(8) the commencement by the Corporation or the Guarantor of a
voluntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by the Corporation or the Guarantor to the entry of a decree or
order for relief in respect of the Corporation or the Guarantor in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against the
Corporation or the Guarantor, or the filing by the Corporation or the
Guarantor of a petition or answer or consent seeking reorganization or
relief under any applicable federal or state law, or the consent by the
Corporation or the Guarantor to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Corporation or the Guarantor or of any substantial part of the property of
the Corporation or the Guarantor, or the making by the Corporation or the
Guarantor of an assignment for the benefit of creditors, or the admission
by the Corporation or the Guarantor in writing of the inability of the
Corporation or the Guarantor to pay its debts generally as they become due,
or the authorization of any such action by the Board of Directors of the
Corporation or the Guarantor; or
(9) any other Event of Default provided with respect to Securities of
that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) and accrued and unpaid interest, if any, thereon
to be due and payable immediately, by a notice in writing to the Corporation
(and to the Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount) and accrued and unpaid interest shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Event of Default giving rise to such declaration of
acceleration shall, without further act, be deemed to have been waived, and such
declaration and its consequences shall, without further act, be deemed to have
been rescinded and annulled, if
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(1) the Corporation or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series which
has become due otherwise than by such declaration of acceleration,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and, to the extent permitted by law, any interest
thereon at the rate or rates prescribed therefor in such Securities
or, if no such rate or rates are so provided, at the rate or
respective rates, as the case may be, of interest borne by such
Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest which has become due otherwise than by
such declaration of acceleration at the rate or rates prescribed
therefor in such Securities or, if no such rate or rates are so
provided, at the rate or respective rates, as the case may be, of
interest borne by such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due the Trustee
under Section 607;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of or accrued and unpaid
interest on Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
- -------
The Corporation and the Guarantor jointly and severally covenant that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days,
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof, or
(3) default is made in the deposit of any mandatory sinking fund
payment applicable to any Security when due,
the Corporation or the Guarantor will, upon demand of the Trustee, pay to it,
for the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for
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principal and any premium and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and
premium and on any overdue interest, at the rate or rates prescribed therefor in
such Securities or, if no such rate or rates are so provided, at the rate or
respective rates, as the case may be, of interest borne by such Securities, and,
in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 607.
If the Corporation fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon demand of the Trustee, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Corporation or any other obligor upon such Securities endorsed
thereon and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Corporation or any other obligor upon
such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Corporation or the
Guarantor (or any other obligor upon the Securities or the Guarantees), their
respective property or their respective creditors, the Trustee (irrespective of
whether the principal of such Securities shall then be due and payable as
therein expressed or by declaration of acceleration or otherwise and
irrespective of whether the Trustee shall have made any demand on the
Corporation for the payment of overdue principal, premium, if any, or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization adjustment, composition or other similar
judicial proceeding relative to the Corporation or the Guarantor, the Trustee
(irrespective of whether the principal of such Securities shall then be due and
payable as therein expressed or by declaration of acceleration or otherwise and
irrespective of whether the Trustee shall have made any demand on the
Corporation or the Guarantor for the payment of overdue principal, premium, if
any, or interest) shall be authorized to file and prove a claim for the whole
amount of principal (and premium, if any) and interest owing and unpaid in
respect of the Securities of such series and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the
Holders of such Securities allowed in such judicial proceeding, to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute
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the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the Guarantees or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a
creditors' or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities or
the Guarantees endorsed thereon may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the Guarantees or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 607;
Second: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the aggregate
amounts due and payable on such Securities for principal and any premium
and interest; and
Third: To the payment of the balance, if any, to the Corporation or
any other Person or Persons legally entitled thereto.
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Section 507. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
---------------------------------------------------
Premium and Interest.
--------------------
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Corporation, the Guarantor, the Trustee and the Holders
shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
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Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall, to the
extent permitted by law, impair any such right or remedy or constitute a waiver
of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to
the Holders may, to the extent permitted by law, be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as
the case may be.
Section 512. Control By Holders.
------------------
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series; provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) subject to Section 601, the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction,
and
(3) such direction is not unduly prejudicial to the rights of other
Holders of Securities of that series not joining in that action.
Section 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series with respect to which any default under
this Indenture shall have occurred and be continuing may, on behalf of the
Holders of all Securities of such series, waive such past default under this
Indenture with respect to such Securities and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
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(2) in respect of a covenant or provision hereof which under Article
IX cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist and be deemed not
to have occurred, and any Event of Default arising therefrom shall be deemed to
have been cured and not to have occurred, for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
Section 514. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
disbursements, against any party litigant in such suit having due regard to the
merits and good faith of the claims or defenses made by such party litigant, but
the provisions of this Section 514 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of Outstanding Securities of any
series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest, if any, on any
Security on or after the respective Stated Maturities expressed in such Security
(or, in the case of redemption, on or after the Redemption Date).
Section 515. Waiver of Stay or Extension Laws.
--------------------------------
Each of the Corporation and the Guarantor covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or any other law wherever enacted, now or at any
time hereafter in force, which would prohibit or forgive the Corporation or the
Guarantor from paying all or any portion of the principal of or premium, if any,
or interest on any Securities as contemplated herein or therein or which may
affect the covenants or the performance of this Indenture; and each of the
Corporation and the Guarantor (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE VI.
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any
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of its duties hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. The permissive right of the Trustee to do things enumerated in this
Indenture shall not be construed as a duty to do such things and in no event
shall the Trustee be liable for the consequences of any act or omission except
to the extent of the Trustee's negligence, negligent failure to act or willful
misconduct. Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 602. Notice of Defaults.
------------------
If a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
Section 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document (whether in its original or facsimile form) believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Corporation or the Guarantor
mentioned herein shall be sufficiently evidenced by a Company Request or
Company Order, or Guarantor Request or a Guarantor Order, as applicable, or
as otherwise expressly provided herein, and any resolution of the Board of
Directors shall be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate of the
Corporation or the Guarantor, as appropriate;
(4) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) prior to the occurrence of an Event of Default, the Trustee shall
undertake to perform only such duties as are specifically set forth in this
Indenture; and in case an
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Event of Default has occurred and is continuing with respect to the
Securities of any series, the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture with
respect to the Securities of such series, whether at the request or
direction of any of the Holders thereof or pursuant to any other provision
in this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled, at reasonable times previously notified to the
Corporation or the Guarantor, to examine the relevant books, records and
premises of the Corporation or the Guarantor, personally or by agent or
attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(8) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture.
Section 604. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities and the Guarantees
endorsed thereon, except the Trustee's certificates of authentication, shall be
taken as the statements of the Corporation or the Guarantor, as the case may be,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities or the Guarantees endorsed
thereon. Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Corporation of Securities or the proceeds
thereof.
Section 605. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Corporation, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Corporation with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
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Section 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing by the Trustee with the Corporation or the Guarantor.
Section 607. Compensation, Reimbursement and Indemnity.
-----------------------------------------
The Corporation and the Guarantor jointly and severally agree
(1) to pay to the Trustee from time to time such compensation as
shall be agreed to in writing between the Corporation and the Trustee for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, willful
misconduct or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any and all loss, liability, damage, claim or expense, including taxes
(other than taxes based on the income of the Trustee) incurred without
negligence, willful misconduct or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
The Trustee shall have a first priority lien prior to the Securities upon
all property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 607, except with respect to funds
held in trust for the benefit of the Holders of Securities.
Without limiting any rights available to the Trustee under applicable law,
when the Trustee incurs expenses or renders services in connection with an Event
of Default specified in Section 501(7) or Section 501(8), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 608. Conflicting Interests.
---------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
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To the extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series.
Section 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one
or more other series. Each Trustee shall be a Person that is eligible pursuant
to the Trust Indenture Act to act as such and has a combined capital and surplus
of at least $50,000,000. If any such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee
with respect to the Securities of any series shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or
more series by giving written notice thereof to the Corporation and the
Guarantor. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition, at
the expense of the Corporation, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee, the Corporation
and the Guarantor.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Corporation, the Guarantor or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Corporation, the
Guarantor or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or
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any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Corporation and the Guarantor by Board
Resolutions may remove the Trustee with respect to all Securities, or (B)
subject to Section 514, any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Corporation and the Guarantor, by
Board Resolutions, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Corporation and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 611, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the
Corporation and the Guarantor. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Corporation and the
Guarantor or the Holders and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
The Corporation shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
--------------------------------------
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Corporation, the Guarantor and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Corporation, the Guarantor or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor
-45-
Trustee all property and money held by such retiring Trustee hereunder (subject
to the lien provided for in Section 607).
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Corporation, the
Guarantor, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Corporation, the Guarantor or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Corporation and the
Guarantor shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided that
such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
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authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Corporation.
-----------------------------------------------------
If and when the Trustee shall be or become a creditor of the Corporation or
the Guarantor (or any other obligor upon the Securities or the Guarantees), the
Trustee shall be subject to the provisions of the Trust Indenture Act regarding
the collection of claims against the Corporation or the Guarantor (or any such
other obligor).
Section 614. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents acceptable to the
Corporation with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Corporation and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by federal or state
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided that such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee, the Corporation and the Guarantor. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent, the Corporation and the Guarantor.
Upon receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
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accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Corporation and
the Guarantor and shall give notice of such appointment in the manner provided
in Section 106 to all Holders of Securities of the series with respect to which
such Authenticating Agent will serve. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Corporation and the Guarantor, jointly and severally, agree to pay to
each Authenticating Agent from time to time reasonable compensation for its
services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: _________________________ U.S. Bank Trust National Association,
As Trustee
By:
-------------------------------------
As Authenticating Agent
By:
-----------------------------------
Authorized Signatory
Section 615. Trustee's Application for Instructions from the Corporation.
-----------------------------------------------------------
Any application by the Trustee for written instructions from the
Corporation may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable to the Corporation for any action
taken by, or omission of, the Trustee in accordance with a proposal included in
such application on or after the date specified in such application (which date
shall not be less than three Business Days after the date any officer of the
Corporation actually receives such application, unless any such officer shall
have consented in writing to any earlier date) unless prior to taking any such
action (or the effective date in the case of an omission), the Trustee shall
have received written instructions in response to such application specifying
the action to be taken or omitted.
-48-
ARTICLE VII.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND CORPORATION
Section 701. Corporation to Furnish Trustee Names and Addresses of Holders.
-------------------------------------------------------------
The Corporation and the Guarantor will furnish or cause to be furnished to
the Trustee
(1) 15 days after each Regular Record Date, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the
Holders of Securities of each series as of such Regular Record Date, and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Corporation or the Guarantor of any such
request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Corporation, the Guarantor and the Trustee that none of the Corporation, the
Guarantor, the Trustee nor any agent of any of them shall be held accountable by
reason of any disclosure of information as to names and addresses of Holders
made pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
------------------
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
60 days after each May 15 following the date of this Indenture, deliver to
Holders a brief report, dated as of such May 15, which complies with the
provisions of such Section 313(a).
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission
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and with the Corporation and the Guarantor. The Corporation and the Guarantor
will promptly notify the Trustee when any Securities are listed on any stock
exchange or any delisting thereof.
Section 704. Reports by Corporation and the Guarantor.
----------------------------------------
The Corporation and the Guarantor, pursuant to Section 314(a) of the Trust
Indenture Act, shall:
(1) file with the Trustee, within 15 days after it is required to
file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any
of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which it may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if it is
not required to file information, documents or reports pursuant to either
of said Sections, then it shall file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules
and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
it with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, such summaries of any information, documents and
reports required to be filed by it pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE VIII.
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801. Corporation or Guarantor May Consolidate, Etc., on Certain
----------------------------------------------------------
Terms.
- -----
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Corporation or the Guarantor with or
into any other Person or Persons (whether or not affiliated with the
Corporation), or successive consolidations or mergers in which the Corporation
or the Guarantor or its successor or successors shall be a party or parties, or
shall prevent any sale, transfer, lease or other conveyance of the properties
and assets of the Corporation or the Guarantor as an entirety or substantially
as an entirety to any other Person (whether or not affiliated with the
Corporation or the Guarantor) lawfully entitled to acquire the same; provided,
however, that the Corporation and the Guarantor shall not, in any transaction or
series of transactions, consolidate or merge with or into any Person or sell,
transfer, lease or otherwise convey the properties and assets of the Corporation
or the Guarantor as an entirety or substantially as an entirety to any other
Persons, unless:
-50-
(i) either (A) the Corporation or the Guarantor, as the case may be,
shall be the continuing Person (in the case of a merger) or (B) the
successor Person formed by such consolidation or into which the Corporation
or the Guarantor, as the case may be, is merged or which acquires by sale,
transfer, lease or other conveyance the properties and assets of the
Corporation or the Guarantor, as the case may be, as an entirety or
substantially as an entirety, is a corporation organized and existing under
the laws of the United States of America, any State thereof or the District
of Columbia and shall expressly assume, by an indenture (or indentures, if
at such time there shall be more than one Trustee) supplemental hereto,
executed by such successor corporation, the Trustee, the Corporation and
the Guarantor, in form and substance satisfactory to the Trustee, the due
and punctual payment of the principal of and premium, if any, and interest
on all of the Outstanding Securities or the due and punctual payment of all
amounts under the Guarantees, as the case may be, and the due and punctual
performance and observance of every obligation in this Indenture and the
Outstanding Securities on the part of the Corporation or the Guarantor, as
the case may be, to be performed or observed;
(ii) immediately after giving effect to such transaction, no Event of
Default and no event which, after notice or lapse of time or both, would
become an Event of Default, has or shall have occurred and be continuing;
and
(iii) the Corporation or the Guarantor, as the case may be, shall
deliver to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, sale, transfer, lease or
other conveyance and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture comply with this Article
and that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 802. Successor Substituted.
---------------------
Upon any consolidation of the Corporation or the Guarantor with, or merger
of the Corporation or the Guarantor into, any other Person or any sale,
transfer, lease or other conveyance of the properties and assets of the
Corporation or the Guarantor as an entirety or substantially as an entirety in
accordance with Section 801, the successor Person formed by such consolidation
or into which the Corporation or the Guarantor, as the case may be, is merged or
to which such sale, transfer, lease or other conveyance is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Corporation or the Guarantor, as the case may be, under this Indenture with the
same effect as if such successor Person had been named as the Corporation or the
Guarantor, as the case may be, herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and under the Securities or the Guarantees endorsed
thereon, as the case may be.
-51-
ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Corporation and the Guarantor, when
authorized by Board Resolutions, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
reasonably satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Corporation
or the Guarantor, as the case may be, and the assumption by any such
successor of the covenants of the Corporation or the Guarantor, as the case
may be, herein and in the Securities or the Guarantees endorsed thereon, as
the case may be; or
(2) to add to the covenants of the Corporation or the Guarantor for
the benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein conferred
upon the Corporation or the Guarantor; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to facilitate the issuance of
Securities in uncertificated form; or
(5) to change or eliminate any of the provisions of this Indenture in
respect of one or more series of Securities, provided that any such change
or elimination (A) shall neither (i) apply to any Security or Guarantee
entitled to the benefit of such provision nor (ii) modify the rights of the
Holder of any such Security or Guarantee with respect to such provision, or
(B) shall become effective only when there is no such Security Outstanding
or to add any new provision to this Indenture, provided that any such
addition does not apply to any Security of any series or any Guarantee
endorsed thereon created prior to the execution of such supplemental
indenture; or
(6) to secure the Securities or the Guarantees; or
(7) to establish the form or terms of Securities of any series or any
Guarantees as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or
-52-
change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section 611; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that such action pursuant
to this Clause (9) shall not adversely affect the interests of the Holders
of Securities of any series in any material respect.
Section 902. Supplemental Indentures With Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Corporation, the
Guarantor and the Trustee, the Corporation and the Guarantor, when authorized by
Board Resolutions, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture, or modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or premium, if
any, or any installment of principal of or premium, if any, or interest on,
any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount Security
or any other Security which would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or change any
place of payment where or the coin or currency in which any Security or any
premium or interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify or affect in any manner the terms and conditions of the
obligations of the obligations of the Guarantor in respect of the due and
punctual payment of the principal of, or premium, if any, or interest on
any Security, or
(4) modify any of the provisions of this Section, Section 513 or
Section 1006, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause (4) shall not be
-53-
deemed to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1006, or the deletion of this proviso, in accordance with the
requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities (including the Guarantees
endorsed thereon), or which modifies the rights of the Holders of Securities of
such series or the Guarantees endorsed thereon with respect to such covenant or
other provision, shall be deemed not to affect the rights under this Indenture
of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 315(a) through 315(d) of the Trust Indenture Act) shall
be fully protected in relying upon, an Opinion of Counsel and an Officers'
Certificate, each stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Corporation and the
Guarantor shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee, the Corporation and the Guarantor, to
any such supplemental indenture may be prepared and executed by the Corporation
(with Guarantees executed by the Guarantor endorsed thereon) and authenticated
and delivered by the Trustee in exchange for Outstanding Securities of such
series.
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ARTICLE X.
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Corporation covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
-------------------------------
The Corporation and the Guarantor will maintain in each Place of Payment
for any series of Securities an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities of that series may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Corporation or the Guarantor in respect of the Securities
of that series and this Indenture may be served. The Corporation and the
Guarantor will give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Corporation or the Guarantor shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Corporation and the Guarantor
hereby appoint the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Corporation or the Guarantor may also from time to time designate one
or more other offices or agencies where the Securities of one or more series may
be presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Corporation or the Guarantor of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Corporation and the Guarantor
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
Unless otherwise provided in or pursuant to Section 301 of this Indenture,
the Corporation and the Guarantor hereby designate as a Place of Payment for
each series of Securities the Borough of Manhattan, The City of New York, and
initially appoint the office of U.S. Bank Trust National Association in the
Borough of Manhattan, The City of New York, as its office or agency in that
Place of Payment for such purpose.
Section 1003. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Corporation shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
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Whenever the Corporation shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
or any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Corporation will promptly notify the Trustee of its action or
failure so to act.
The Corporation will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Corporation (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Corporation may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust hereunder by the Corporation or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the
Corporation or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Subject to any applicable escheatment laws, any money deposited with the
Trustee or any Paying Agent, or then held by the Corporation, in trust for the
payment of the principal of or any premium or interest on any Security of any
series and remaining unclaimed for two years after such principal, premium or
interest has become due and payable shall be paid to the Corporation on Company
Request, or (if then held by the Corporation) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Corporation and the Guarantor, jointly and severally,
for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Corporation as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Corporation cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, The City of New York, New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Corporation.
Section 1004. Corporate Existence.
-------------------
Subject to Article VIII, each of the Corporation and the Guarantor will do
or cause to be done all things necessary to preserve and keep in full force and
effect their corporate existence, rights (charter and statutory) and franchises.
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Section 1005. Statement by Officers as to Default.
-----------------------------------
Each of the Corporation and the Guarantor will deliver to the Trustee, on
or before October 15 of each calendar year or on or before such other day in
each calendar year as the Corporation, the Guarantor and the Trustee may from
time to time agree upon, an Officers' Certificate, stating whether or not to the
best knowledge of the signers thereof the Corporation or the Guarantor, as the
case may be, is in default in the performance and observance of any of the
terms, provisions and conditions of this Indenture (without regard to any period
of grace or requirement of notice provided hereunder) and, if the Corporation or
the Guarantor shall be in default, specifying all such defaults and the nature
and status thereof of which they may have knowledge.
Section 1006. Waiver of Certain Covenants.
---------------------------
Except as otherwise specified as contemplated by Section 301 for Securities
of such series, the Corporation may, with respect to the Securities of any
series, omit in any particular instance to comply with any term, provision or
condition set forth in any covenant provided pursuant to Section 301(19) or
901(2) for the benefit of the Holders of such series if before the time for such
compliance the Holders of not less than a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Corporation and
the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE XI.
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
Section 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Corporation to redeem any Securities shall be evidenced
by a Board Resolution or in another manner specified as contemplated by Section
301 for such Securities. In case of any redemption at the election of the
Corporation, the Corporation shall, at least 45 days prior to the Redemption
Date fixed by the Corporation (unless a shorter notice shall be satisfactory to
the Trustee in its sole and absolute discretion), notify the Trustee of such
Redemption Date, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be redeemed. In
the case of any redemption of Securities (A) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, or (B) pursuant to an election of the Corporation
which is subject to a condition specified in the terms of such Securities or
elsewhere in this Indenture, the Corporation and the Guarantor shall each
furnish the Trustee with an
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Officers' Certificate evidencing compliance with any such restriction or
condition applicable to it.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by lot and which may provide for the
selection for redemption of a portion of the principal amount of any Security of
such series; provided that the unredeemed portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security. If less than all the
Securities of such series and of a specified tenor are to be redeemed (unless
such redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series and specified tenor
not previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Corporation in writing of the
Securities selected for redemption as aforesaid and, in the case of any
Securities selected for partial redemption as aforesaid, the principal amount
thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part, the
unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series and of
a specified tenor consisting of more than a single Security are to be
redeemed, the identification
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(and, in the case of partial redemption of any such Securities, the
principal amounts) of the particular Securities to be redeemed and, if less
than all the Outstanding Securities of any series and of a specified tenor
consisting of a single Security are to be redeemed, the principal amount of
the particular Security to be redeemed;
(4) that on the Redemption Date the Redemption Price, together with
accrued interest, if any, to the Redemption Date, will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date;
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price and accrued interest, if any, unless it
shall have been specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required;
(6) that the redemption is for a sinking fund, if such is the case;
(7) the CUSIP number of such Securities, if any, or any other numbers
used by the Depositary to identify such securities; and
(8) such other matters as the Corporation shall deem desirable or
appropriate.
Notice of redemption of Securities to be redeemed at the election of the
Corporation shall be given by the Corporation or, at the Corporation's request,
by the Trustee in the name and at the expense of the Corporation. Any such
notice of redemption shall be irrevocable.
On or prior to any Redemption Date, the Corporation shall deposit, with
respect to the Securities of any series called for redemption pursuant to this
Section 1104, with the Trustee or with a Paying Agent an amount of money in the
applicable currency sufficient to pay the Redemption Price of, and any accrued
interest on, all such Securities or portion thereof which are to be redeemed on
that date.
Section 1105. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities or
portions thereof so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Corporation shall default in the payment of the Redemption Price and
accrued interest, if any) such Securities or portions thereof, if interest-
bearing, shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security or portion thereof
shall be paid by the Corporation at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that no such
surrender shall be a condition to such payment if so specified as contemplated
by Section 301 with respect to such Security, and provided further that, unless
otherwise specified as contemplated by Section 301, installments of interest
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Regular Record Dates
according to their terms and the provisions of Section 307.
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If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security or, if no rate is prescribed therefor in the Security, at the rate of
interest, if any, borne by such Security.
Section 1106. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Corporation, the Guarantor or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Corporation, the Guarantor and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Corporation shall execute, and the Trustee shall authenticate and deliver to
the Holder of such Security without service charge, a new Security or Securities
of the same series and of like tenor (and with a Guarantee executed by the
Guarantor endorsed thereon), of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered with the
Guarantee of the Guarantor endorsed thereon.
ARTICLE XII.
SINKING FUNDS
Section 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities is herein referred to as a "mandatory sinking fund payment," and
any payment in excess of such minimum amount provided for by the terms of such
Securities is herein referred to as an "optional sinking fund payment." If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Corporation (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Corporation pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited
have not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as
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specified in the Securities so to be redeemed, for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 45 days prior to each sinking fund payment date for any
Securities, the Corporation will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and stating the basis for such credit and that such Securities have
not been previously so credited and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days prior to each such sinking
fund payment date, the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Corporation in the manner provided in Section 1104. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 1105 and 1106.
ARTICLE XIII.
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Applicability of Article.
------------------------
Unless, pursuant to Section 301, provision is made that either or both of
(A) defeasance of any Securities or any series of Securities under Section 1302
and (B) covenant defeasance of any Securities or any series of Securities under
Section 1303 shall not apply to such Securities of a series, then the provisions
of either or both of Sections 1302 and Section 1303, as the case may be,
together with Sections 1304 and 1305, shall be applicable to the Outstanding
Securities of such series upon compliance with the conditions set forth below in
this Article. Unless otherwise specified pursuant to Section 301, defeasance
under Section 1302 and covenant defeasance under Section 1303 may be effected
only with respect to all, and not less than all, the Securities of any series.
To the extent that the Corporation is permitted, pursuant to Section 301, to
defer interest payments, change the time for interest payments, or change the
Stated Maturity of the Securities of any series or any installment of principal
thereof, any such right shall terminate upon defeasance or covenant defeasance
of the Securities of that series as described below or upon satisfaction and
discharge with respect to the Securities of that series pursuant to Section 401.
Section 1302. Defeasance and Discharge.
------------------------
On and after the date the conditions set forth in Section 1304 are
satisfied, the Corporation and the Guarantor may cause themselves to be
discharged from their obligations with respect to any Securities or any series
of Securities and the Guarantees endorsed thereon (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Corporation and
the Guarantor shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and to have satisfied all their
other obligations under such Securities
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and the Guarantees endorsed thereon and this Indenture insofar as such
Securities and the Guarantees endorsed thereon are concerned (and the Trustee,
at the expense of the Corporation and the Guarantor, shall execute proper
instruments acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder: (1) the rights of
Holders of such Securities to receive, solely from the trust fund described in
Section 1304 and as more fully set forth in such Section, payments in respect of
the principal of and any premium and interest on such Securities when payments
are due, (2) the Corporation's, the Guarantor's and Trustee's obligations with
respect to such Securities and the Guarantees endorsed thereon under Sections
304, 305, 306, 1002, 1003 and 1306 and with respect to the Trustee under Section
607, (3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, and (4) this Article. Subject to compliance with this Article,
Defeasance with respect to any Securities or any series of Securities and the
Guarantees endorsed thereon by the Corporation and the Guarantor is permitted
under this Section 1302 notwithstanding the prior exercise by the Corporation of
its rights under Section 1303 with respect to such Securities. Following a
Defeasance, payment of such Securities may not be accelerated because of an
Event of Default.
Section 1303. Covenant Defeasance.
-------------------
On and after the date the conditions set forth in Section 1304 are
satisfied, the Corporation and the Guarantor may cause themselves to be released
from their obligations under any covenants provided pursuant to Section 301(19)
or 901(2) with respect to any Securities and the Guarantees endorsed thereon or
any series of Securities for the benefit of the Holders of such Securities and
the occurrence of any event specified in Sections 501(4) (with respect to any
such covenants provided pursuant to Section 301(19), 901(2) or 501(9)) shall be
deemed not to be or result in an Event of Default with respect to such
Securities as provided in this Section (hereinafter called "Covenant
Defeasance"). For this purpose, such Covenant Defeasance means that, with
respect to such Securities and the Guarantees endorsed thereon, the Corporation
and the Guarantor may omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in any covenants added for the
benefit of the Securities of such series pursuant to any such specified Section
(to the extent so specified in the case of Section 501(4)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby. Following a Covenant Defeasance, payment of the
Securities may not be accelerated by reference to the covenant described in the
description of Covenant Defeasance above.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to the application of Section 1302 or
Section 1303 to any Securities or any series of Securities, as the case may be,
and the Guarantees endorsed thereon:
(1) The Corporation or the Guarantor shall irrevocably have deposited
or caused to be deposited with the Trustee as trust funds in trust for the
purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such
Securities, (A) money in U.S. dollars in an amount, or
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(B) Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment due in
respect of such Securities, money in an amount, or (C) a combination
thereof, in each case sufficient, without consideration of any
reinvestments of such principal and interest, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee to pay and discharge,
the principal of and any premium and interest on such Securities on the
respective Stated Maturities or on any Redemption Date established pursuant
to Clause (3) below, in accordance with the terms of this Indenture and
such Securities, and any mandatory sinking fund payments or analogous
payments applicable to such Securities when such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities. As used herein, "Government Obligation" means (x) any security
which is (i) a direct obligation of the United States of America or the
government which issued the foreign currency in which such Securities are
payable, for the payment of which its full faith and credit is pledged or
(ii) an obligation of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America or such
government which issued the foreign currency in which such Securities are
payable, the timely payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America or such
other government, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the Securities
Act) as custodian with respect to any Government Obligation which is
specified in clause (x) above and held by such bank for the account of the
holder of such depositary receipt, or with respect to any specific payment
of principal of or interest on any Government Obligation which is so
specified and held, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment
of principal or interest evidenced by such depositary receipt.
(2) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any
Guarantee endorsed thereon shall have occurred and be continuing at the
time of such deposit or, with regard to any such event specified in
Sections 501(7) and (8), at any time on or prior to the 90th day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until after such 90th day).
(3) If the monies or Government Obligations or combination thereof
deposited pursuant to Clause (1) above are sufficient to pay the principal
of and premium, if any, and interest, if any, on such Securities provided
such Securities are to be redeemed prior to Stated Maturity (other than
from mandatory sinking fund payments or analogous payments), notice of such
redemption shall have been duly given pursuant to this Indenture or
irrevocable instructions to redeem such Securities on such Redemption Date
and to provide notice of such redemption to Holders satisfactory to the
Trustee shall have been made.
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(4) In the case of Defeasance pursuant to Section 1302, the
Corporation shall have delivered to the Trustee an opinion of independent
counsel stating that (x) the Corporation has received from, or there has
been published by, the Internal Revenue Service a ruling, or (y) since the
date of this Indenture there has been a change in applicable federal income
tax law, in either case to the effect that, and based thereon such opinion
of independent counsel shall confirm that, the Holders of such Outstanding
Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Defeasance had not occurred; or, in the
case of Covenant Defeasance pursuant to Section 1303, the Corporation shall
have delivered to the Trustee an opinion of independent counsel to the
effect that the Holders of such Outstanding Securities will not recognize
income, gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred.
(5) The Corporation and the Guarantor shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
Section 1305. Deposited Money and Government Obligations to Be Held in
--------------------------------------------------------
Trust; Miscellaneous Provisions.
-------------------------------
Subject to the provisions of the last paragraph of Section 1003, all money
and Government Obligations (including the proceeds thereof) deposited with the
Trustee pursuant to Section 1304 in respect of any Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
such Paying Agent (other than the Corporation acting as its own Paying Agent) as
the Trustee may determine, to the Holders of such Securities, of all sums due
and to become due thereon in respect of principal and any premium and interest,
but money so held in trust need not be segregated from other funds except to the
extent required by law.
The Corporation or the Guarantor shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the
Government Obligations deposited pursuant to Section 1304 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Corporation from time to time upon Company Request any
money or Government Obligations held by it as provided in Section 1304 with
respect to any Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
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Section 1306. Reinstatement.
-------------
If the Trustee or any Paying Agent is unable to apply any moneys or
Government Obligations deposited pursuant to Section 401 or 1304 to pay any
principal of or premium, if any, or interest, if any, on the Securities of any
series by reason of any legal proceeding or any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Corporation's and the Guarantor's obligations under this
Indenture and the Securities of such series and the Guarantees endorsed thereon
shall be revived and reinstated as though no such deposit had occurred, until
such time as the Trustee or Paying Agent is permitted to apply all such moneys
and Government Obligations to pay the principal of and premium, if any, and
interest, if any, on the Securities of such series as contemplated by Section
402 or 1305, as the case may be, provided, however, that if either the
Corporation or the Guarantor makes any payment of the principal of or premium,
if any, or interest, if any, on the Securities of such series following the
reinstatement of its obligations as aforesaid, the Corporation, or the
Guarantor, as the case may be, shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the funds held by the Trustee or
Paying Agent, but shall not be entitled to enforce or to receive any payments
arising out of, or based upon, such right of subrogation until the principal of,
and premium, if any, and interest, if any, on all Securities of that series
shall have been paid in full.
ARTICLE XIV.
GUARANTEE
Section 1401. Guarantee.
---------
The Guarantor hereby unconditionally guarantees to each Holder of a
Security authenticated and delivered by the Trustee, and to the Trustee on
behalf of such Holder, the due and punctual payment of the principal of, and
premium, if any, and interest, if any, on such Security and of any sinking fund
payments thereon, in each case when and as the same shall become due and
payable, whether at the Stated Maturity, by declaration of acceleration, call
for redemption, or otherwise, in accordance with the terms of such Security and
of this Indenture. In case of the failure of the Corporation punctually to make
any such payment of principal, premium, if any, or interest if any, or any such
sinking fund payment, whether at the Stated Maturity, by declaration of
acceleration, call for redemption or otherwise, the Guarantor hereby agrees to
cause such payment to be made punctually when and as the same shall become due
and payable, whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise, and as if such payment were made by the
Corporation. The Guarantor hereby agrees that its obligations hereunder shall be
absolute and unconditional irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of such Security or this Indenture,
or any failure to enforce any provisions of such Security or this Indenture, or
any waiver, modification or indulgence granted to the Corporation with respect
thereto, by the Holder of such Security or the Trustee or any other circumstance
which may otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor; provided, however, that notwithstanding the foregoing, no
such waiver, modification or indulgence shall, without the consent of the
Guarantor, increase the principal amount of such Security, or increase the
interest rate thereon, or change any redemption provisions thereof (including
any change to increase any premium
-65-
payable upon redemption thereof), or change the Stated Maturity thereof, or
change the amount of principal of such Security that would be due and payable
upon a declaration of acceleration pursuant to Article V of this Indenture.
The Guarantor hereby waives the benefits of diligence, presentment, demand
for payment or performance, any requirement that the Trustee or any of the
Holders exhaust any right or take any action against the Corporation or any
other Person, filing of claims with a court in the event of insolvency or
bankruptcy of the Corporation, any right to require a proceeding first against
the Corporation, protest or notice with respect to any Security or the
indebtedness evidenced thereby and all demands whatsoever, and covenants that
this Guarantee will not be discharged in respect of any Security except by
complete performance of the obligations contained in this Indenture, such
Security and in this Guarantee. This Guarantee shall constitute a guaranty of
payment and not of collection. The Guarantor hereby agrees that, in the event of
a default in payment of principal, or premium, if any, or interest, if any, on
any Security, whether at its Stated Maturity, by declaration of acceleration,
call for redemption, or otherwise, legal proceedings may be instituted by the
Trustee on behalf of, or by, the Holder of such Security, subject to the terms
and conditions set forth in this Indenture, directly against the Guarantor to
enforce this Guarantee without first proceeding against the Corporation.
The obligations of the Guarantor hereunder with respect to any Security
shall be continuing and irrevocable until the date upon which the entire
principal of, premium, if any, and interest on such Security has been, or has
been deemed pursuant to the provisions of Article IV of this Indenture to have
been, paid in full or otherwise discharged, but subject to reinstatement of such
obligations on the terms and conditions set forth in Section 1306.
The Guarantor shall be subrogated to all rights of the Holders of the
Securities upon which its Guarantee is endorsed against the Corporation in
respect of any amounts paid by the Guarantor on account of such Securities
pursuant to the provisions of its Guarantee or this Indenture; provided,
however, that the Guarantor shall not be entitled to enforce or to receive any
payments arising out of, or based upon, such right of subrogation until the
principal of, and premium, if any, and interest, if any, on all Securities
issued hereunder shall have been paid in full.
This Guarantee shall remain in full force and effect and continue
notwithstanding any petition filed by or against the Corporation for liquidation
or reorganization, the Corporation becoming insolvent or making an assignment
for the benefit of creditors or a receiver or trustee being appointed for all or
any significant part of the Corporation's assets, and shall, to the fullest
extent permitted by law, continue to be effective or reinstated, as the case may
be, if at any time payment of any Security, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any
Holder of such Security, whether as a "voidable preference," "fraudulent
transfer," or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded, reduced,
restored or returned on a Security, such Security shall, to the fullest extent
permitted by law, be reinstated and deemed paid only by such amount paid and not
so rescinded, reduced, restored or returned.
-66-
Section 1402. Execution and Delivery of Guarantees.
------------------------------------
The Guarantee to be endorsed on the Securities of each series shall include
or incorporate by reference the terms of the Guarantee set forth in Section 1401
and any other terms that may be set forth as established pursuant to Section
301. The Guarantor hereby agrees to execute its Guarantee, in a form set forth
in or established pursuant to Section 201, to be endorsed on each Security
authenticated and delivered by the Trustee.
The Guarantee shall be executed on behalf of the Guarantor by its Chairman
of the Board, its Vice Chairman of the Board, its President or its Vice
President, under its corporate seal reproduced thereon attested by its Secretary
or one of its Assistant Secretaries or by its Treasurer or one of its Assistance
Treasurers. The signature of any such officer on the Guarantee may be manual or
facsimile.
A Guarantee bearing the manual or facsimile signature of an individual who
was at any time a proper officer of the Guarantor shall bind the Guarantor,
notwithstanding that any such individual has ceased to hold such office prior to
the authentication and delivery of such Guarantee or did not hold such office at
the date of such Guarantee.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee endorsed
thereon on behalf of the Guarantor. The Guarantor hereby agrees that its
Guarantee set forth in Section 1401 shall remain in full force and effect
notwithstanding any failure to endorse a Guarantee on any Security. The
Guarantor by its execution of this Indenture hereby authorizes the Corporation,
in the name and on behalf of the Guarantor, to confirm the applicable Guarantee
to the Holder of each Security authenticated and delivered hereunder by the
Corporation's execution and delivery of each such Security, with such Guarantee
endorsed thereon, authenticated and delivered by the Trustee.
ARTICLE XV.
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 1501. Indenture and Securities Solely Corporate Obligations.
-----------------------------------------------------
No recourse for the payment of the principal of or any premium or interest
on any Security or any Guarantees of any part thereof, for any claim based
thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Corporation or the Guarantor in this
Indenture or in any supplemental indenture, or in any Security, or because of
the creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Corporation or the Guarantor or of any successor corporation to
either of them, either directly or through the Corporation or the Guarantor or
any successor corporation to either of them, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
-67-
penalty or otherwise; it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issue of the Securities and the
Guarantees endorsed thereon.
* * * *
-68-
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
In Witness Whereof, the parties hereto have caused this Indenture to be
duly executed and attested, each as of the day and year first above written.
PACIFIC ENTERPRISES
By:
----------------------------------
----------------------------------
----------------------------------
Attest:
- --------------------
SEMPRA ENERGY
By:
----------------------------------
----------------------------------
----------------------------------
Attest:
- --------------------
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------
Authorized Signatory
Senior Indenture
EXHIBIT 5.1
[LETTERHEAD OF GARY W. KYLE, ESQ.]
December 29, 2000
Pacific Enterprises
555 West Fifth Street
Los Angeles, California 90013-1011
Re: Registration Statement on Form S-3 of Pacific Enterprises and Sempra
Energy
Ladies and Gentlemen:
I am the Chief Corporate Counsel of Sempra Energy, a California corporation.
In connection with the registration statement on Form S-3 filed on December 29,
2000 (the "Registration Statement") by Pacific Enterprises, a California
corporation ("Pacific Enterprises"), and Sempra Energy, a California
corporation ("Sempra Energy" and together with Pacific Enterprises, the
"Registrants") with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act"), you have
requested my opinion with respect to the matters set forth below.
I have reviewed the prospectus (the "Prospectus") which is a part of the
Registration Statement. The Prospectus provides that it will be supplemented in
the future by one or more supplements to the Prospectus (each a "Prospectus
Supplement"). The Prospectus as supplemented by various Prospectus Supplements
will provide for the registration of up to $500,000,000 aggregate offering
price of (i) one or more series of unsecured senior debt securities (the "Debt
Securities") and (ii) guarantees of the Debt Securities by Sempra Energy (the
"Guarantees"). The Debt Securities will be issued pursuant to one or more
indentures and one or more supplements thereto (collectively, the
"Indentures"), between Pacific Enterprises and a trustee (the "Trustee").
In my capacity as Chief Corporate Counsel, I am generally familiar with the
proceedings taken and proposed to be taken by the Registrants in connection
with the authorization and issuance of the Securities. For purposes of this
opinion, I have assumed that such proceedings will be timely and properly
completed, in accordance with all requirements of applicable federal,
California and New York laws, in the manner presently proposed.
I have made such legal and factual examinations and inquiries, including an
examination of originals and copies certified or otherwise identified to my
satisfaction, of all such documents, corporation records and instruments of the
Registrants as I have deemed necessary or appropriate for purposes of this
opinion. In my examination, I have assumed the genuineness of all signatures,
the authenticity of all documents submitted to me as originals, and the
conformity to authentic original documents of all documents submitted to me as
copies.
I have been furnished with, and with your consent have exclusively relied
upon, certificates of officers of the Registrants with respect to certain
factual matters. In addition, I have obtained and relied upon such certificates
and assurances from public officials as I have deemed necessary.
I am opining herein as to the effect on the subject transaction only of the
federal securities laws of the United States and the State of California, the
internal laws of the State of New York, and I express no opinion with respect
to the applicability thereto, or the effect thereon, of the laws of any other
jurisdiction or, in the case of California, any other laws, or as to any
matters of municipal law or the laws of any local agencies within any state.
Subject to the foregoing and the other qualifications set forth herein, it
is my opinion that, as of the date hereof:
1. When (a) the Debt Securities have been duly established in
accordance with the terms of the applicable Indenture (including, without
limitation, the adoption by the Board of Directors of Pacific Enterprises
of any necessary further resolutions duly authorizing the issuance and
delivery of the Debt Securities), duly authenticated by the Trustee and
duly executed and delivered on behalf of Pacific Enterprises against
payment therefor in accordance with the terms and provisions of the
applicable Indenture and as contemplated by the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), and (b) when each of
the Registration Statement and any required post-effective amendment
thereto have all become effective under the Securities Act and (c) assuming
that the terms of the Debt Securities as executed and delivered are as
described in the Registration Statement, the Prospectus and the related
Prospectus Supplement(s), and (d) assuming that the Debt Securities as
executed and delivered do not violate any law applicable to Pacific
Enterprises or result in a default under or breach of any agreement or
instrument binding upon Pacific Enterprises, and (e) assuming that the Debt
Securities as executed and delivered comply with all requirements and
restrictions, if any, applicable to Pacific Enterprises, whether imposed by
any court or governmental or regulatory body having jurisdiction over
Pacific Enterprises, and (f) assuming that the Debt Securities are then
issued and sold as contemplated in the Registration Statement, the
Prospectus and the Prospectus Supplement(s), the Debt Securities will
constitute valid and legally binding obligations of Pacific Enterprises
enforceable against it in accordance with the terms of the Debt Securities.
2. When (a) the Guarantees and the related Debt Securities have been
duly established in accordance with the terms of the applicable Indenture
(including, without limitation, the adoption by the Board of Directors of
Sempra Energy of any necessary further resolutions duly authorizing the
issuance and delivery of the Guarantees and the related Debt Securities),
the Guarantees have been duly executed and delivered and the related Debt
Securities have been authenticated by the Trustee and duly executed and
delivered on behalf of Sempra Energy against payment therefor in accordance
with the terms and provisions of the applicable Indenture and as
contemplated by the Registration Statement, the Prospectus and the related
Prospectus Supplement(s), and (b) when each of the Registration Statement
and any required post-effective amendment thereto have all become effective
under the Securities Act, and (c) assuming that the terms of the Guarantees
as executed and delivered are as described in the Registration Statement,
the Prospectus and the related Prospectus Supplement(s), and (d) assuming
that the Guarantees as executed and delivered do not violate any law
applicable to Sempra Energy or result in a default under or breach of any
agreement or instrument binding upon Sempra Energy, and (e) assuming that
the Guarantees as executed and delivered comply with all requirements and
restrictions, if any, applicable to Sempra Energy, whether imposed by any
court or governmental or regulatory body having jurisdiction over Sempra
Energy, and (f) assuming that the Guarantees are then issued as
contemplated in the Registration Statement, the Prospectus and the related
Prospectus Supplement(s), the Guarantees will constitute valid and legally
binding obligations of Sempra Energy, enforceable against Sempra Energy in
accordance with the terms of the Guarantees.
The opinions set forth above are subject to the following exceptions,
limitations and qualifications: (i) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights and remedies of creditors; (ii) the effect
of general principles of equity, including without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief, regardless of
whether enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be brought;
(iii) the unenforceability under certain circumstances under law or court
decisions of provisions providing for the indemnification of, or contribution
to, a party with respect to a liability where such indemnification or
contribution is contrary to public policy; (iv) requirements that a claim with
respect to any Guarantee denominated other than in United States dollars (or a
judgment denominated other than in United States dollars in respect of such
claim) be converted into United States dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law; (v) governmental authority to
limit, delay or prohibit the making of payments outside the United States or in
a foreign currency, composite currency or current unit; (vi) I express no
opinion concerning the enforceability of any waiver of rights or defenses with
respect to stay, extension or usury laws; and (vii) I express no opinion with
respect to whether acceleration of Debt Securities may affect the
collectibility of any portion of the stated principle amount thereof which
might be determined to constitute unearned interest thereon.
I have assumed for purposes of this opinion that the applicable Indenture
constitutes the legally valid, binding and enforceable obligation of Pacific
Enterprises enforceable against it in accordance with its terms; and that the
Trustee is duly organized, validly existing and in good standing under the laws
of its jurisdiction of organization; that the Trustee is duly qualified to
engage in the activities contemplated by the applicable Indenture; that the
applicable Indenture has been duly authorized, executed and delivered by the
Trustee and constitutes a legally valid, binding and enforceable obligation of
the Trustee, enforceable against the Trustee in accordance with its terms; and
the Trustee is in compliance, generally and with respect to acting as Trustee
under the applicable Indenture, with all applicable laws and regulations; and
that the Trustee has the requisite organizational and legal power and authority
to perform its obligations under the applicable Indenture.
I consent to your filing this opinion as an exhibit to the Registration
Statement and to the reference to me under the caption "Validity of the
Securities" in the Prospectus included therein.
Very truly yours,
/s/ Gary W. Kyle, Esq.
_____________________________________
Gary W. Kyle, Esq.
Chief Corporate Counsel
EXHIBIT 12.1
PACIFIC ENTERPRISES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in millions)
For the nine
months ended
September 30,
-----------------
1995 1996 1997 1998 1999 1999 2000
---- ---- ---- ---- ---- ------ ------
Fixed Charges:
Interest $ 111 $ 99 $ 91 $ 84 $ 82 $ 61 $ 52
Interest Portion of Annual Rentals 13 12 12 11 3 2 3
Preferred dividends of subsidiary (1) 20 14 13 2 2 2 2
----- ----- ----- ----- ----- ----- -----
Total Fixed Charges For Purpose of Ratio $ 144 $ 125 $ 116 $ 97 $ 87 $ 65 $ 57
===== ===== ===== ===== ===== ====== ======
Earnings:
Pretax income from continuing operations $ 314 $ 354 $ 335 $ 274 $ 350 $ 243 $ 292
Add:
Fixed charges (from above) 144 125 116 97 87 65 57
Less: Fixed charges capitalized 3 2 1 1 2 1 2
----- ----- ----- ----- ----- ----- -----
Fixed charges net of capitalized charges 141 123 115 96 85 64 55
----- ----- ----- ----- ----- ----- -----
Total Earnings for Purpose of Ratio $ 455 $ 477 $ 450 $ 370 $ 435 $ 307 $ 347
===== ===== ===== ===== ===== ====== ======
Ratio of Earnings to Fixed Charges 3.15 3.82 3.89 3.82 5.00 4.73 6.08
===== ===== ===== ===== ===== ====== ======
(1) In computing this ratio, "Preferred dividends of subsidiaries" represents
the before-tax earnings necessary to pay such dividends, computed at the
effective tax rates for the applicable periods.
EXHIBIT 12.2
SEMPRA ENERGY
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in millions)
For the nine
months ended
September 30,
-------------
1995 1996 1997 1998 1999 1999 2000
--------- --------- -------- -------- ------- ------ ------
Fixed Charges:
Interest $ 227 $ 205 $ 209 $ 210 $ 233 $ 200 $ 246
Interest Portion of
Annual Rentals 32 28 25 20 10 13 6
Preferred dividends
of subsidiaries (1) 50 37 31 18 16 13 12
------ ------ ------ ------ ------ ----- -----
Total Fixed Charges
For Purpose of Ratio $ 309 $ 270 $ 265 $ 248 $ 259 $ 226 $ 264
====== ====== ====== ====== ====== ===== =====
Earnings:
Pretax income from
continuing operations $ 665 $ 727 $ 733 $ 432 $ 573 $ 420 $ 501
Add:
Fixed charges
(from above) 309 270 265 248 259 226 264
Less: Fixed charges
capitalized 6 5 3 3 5 3 3
------ ------ ------ ------ ------ ----- -----
Fixed charges net of
capitalized charges 303 265 262 245 254 224 261
------ ------ ------ ------ ------ ----- -----
Total Earnings for
Purpose of Ratio $ 968 $ 992 $ 995 $ 677 $ 827 $ 643 $ 762
====== ====== ====== ====== ====== ===== =====
Ratio of Earnings
to Fixed Charges 3.13 3.67 3.75 2.73 3.19 2.84 2.89
====== ====== ======= ======= ======= ===== =====
(1) In computing this ratio, "Preferred dividends of subsidiaries" represents
the before-tax earnings necessary to pay such dividends, computed at the effective
tax rates for the applicable periods.
EXHIBIT 23.2
Independent Auditors' Consent
We consent to the incorporation by reference in this Registration Statement
of Pacific Enterprises on Form S-3 of our reports dated February 4, 2000 and
March 28, 2000, appearing in the Annual Report on Form 10-K of Pacific
Enterprises for the year ended December 31, 1999, our reports dated February 4,
2000 (February 25, 2000 as to Note 17) and March 28, 2000, appearing in the
Annual Report on Form 10-K of Sempra Energy for the year ended December 31,
1999 and to the reference to us under the heading "Experts" in the Prospectus,
which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
San Diego, California
December 27, 2000
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
--------------------
FORM T-1
Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
--------------------
U.S. Bank Trust National Association
(Exact name of trustee as specified in its charter)
United States 94-3160100
(State of Incorporation) (IRS Employer Identification No.)
550 South Hope Street, Suite 500
Los Angeles, California 90071
(Address of principal executive offices and zip code)
--------------------
Pacific Enterprises
(Exact name of obligor as specified in its charter)
California
(State or other jurisdiction of Incorporation or organization)
94-0743670
(IRS Employer Identification No.)
555 W. 5th Street
Los Angeles, CA 90013
(Address of principal executive offices and Zip code)
(Names, addresses and telephone numbers of agents for service)
___% Notes due ___
(Title of the indenture securities)
GENERAL
1. GENERAL INFORMATION Furnish the following information as to the trustee.
-------------------
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency
Washington DC
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS If the obligor or any
------------------------------------------
underwriter for the obligor is an affiliate of the trustee, describe each
such affiliation.
None
See Note following Item 16.
Items 3-15 are not applicable because to the best of the Trustee's
------------------------------------------------------------------
knowledge the obligor is not in default under any Indenture for which the
-------------------------------------------------------------------------
Trustee acts as Trustee.
-----------------------
16. LIST OF EXHIBITS List below all exhibits filed as a part of this statement
----------------
of eligibility and qualification.
Exhibit 1 -Articles of Association of U.S. Bank Trust National Association
dated June 5, 1992. Incorporated herein by reference to Exhibit 1
filed with Form T-1 statement, Registration No. 33-50826
Exhibit 2 -Certificate of the Comptroller of Currency as to authority of
U.S. Bank Trust National Association to commence the business of
banking. Incorporated herein by reference to Exhibit 2 filed with Form
T-1 Statement, Registration No.33-50826
Exhibit 3 -Authorization of the Comptroller of Currency granting U.S. Bank
Trust National Association the right to exercise corporate trust
powers. Incorporated herein by reference to Exhibit 3 filed with Form
T-1 Statement, Registration No.33-50826
Exhibit 4 -By-Laws of U.S. Bank Trust National Association, dated June 15,
1992. Incorporated herein by reference to Exhibit 4 filed with Form
T-1 Statement, Registration No.33-50826
Exhibit 5 - Not Applicable
Exhibit 6 -Consent of U.S. Bank Trust National Association required by
Section 321(b) of the Act. Incorporated herein by reference to Exhibit
6 filed with Form T-1 Statement, Registration No.33-50826
Exhibit 7 -Report of Condition of U.S. Bank Trust National Association, as
of the close of business on September 30, 2000 published pursuant to
law or the requirements of its supervising or examining authority.
NOTE
The answers to this statement insofar as such answers relate to what persons
have been underwriters for any securities of the obligor within three years
prior to the date of filing this statement, or what persons are owners of 10% or
more of the voting securities of the obligor, or affiliates, are based upon
information furnished to the trustee by the obligor. While the trustee has no
reason to doubt the accuracy of any such information, it cannot accept any
responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
U.S. Bank Trust National Association, an Association organized and existing
under the laws of the United States, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, and its seal to be hereunto affixed and attested, all
in the City of Los Angeles and State of California on the 22nd day of December
2000.
U.S. BANK TRUST NATIONAL ASSOCIATION
By: /s/ Gonzalo Urey
------------------------------------
Gonzalo Urey
Assistant Vice President
Attest: /s/ Tamara Mawn
----------------
Tamara Mawn
Vice President
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the
undersigned, U.S. Bank Trust National Association, hereby consents that reports
of examination of the undersigned by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Dated: December 22, 2000
U.S. BANK TRUST NATIONAL ASSOCIATION
By: /s/ Gonzalo Urey
----------------
Gonzalo Urey
Assistant Vice President
U.S. Bank Trust National Association
Statement of Financial Condition
As of 09/30/00
($000's)
Assets:
Cash and Balances Due From Depository Institutions: 75,439
Federal Reserve Stock: 5,471
Fixed Assets: 807
Intangible Assets: 56,567
Other Assets: 9,972
---------
Total Assets: 148,256
---------
Liabilities:
Other Liabilities: 6,935
---------
Total Liabilities: 6,935
---------
Equity:
Common and Preferred Stock: 1,000
Surplus: 126,260
Undivided Profits and Capital Reserve: 14,060
Net unrealized holding gains (losses) on available-for-sale
securities 1
---------
Total Equity Capital: 141,321
---------
Total Liabilites and Equity Capital: 148,256
---------
================================================================================
To the best of the undersigned's determination, as of this date the above
financial information is true and correct.
U.S. Bank Trust National Association
By: /s/ Gonzalo Urey
--------------------------
Assistant Vice President
