Exhibit 1
EXECUTION COPY
ATMOS ENERGY CORPORATION
$250,000,000 6.35% Senior Notes due 2017
UNDERWRITING AGREEMENT
June 11, 2007
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
As Representative of the several
Underwriters named in Schedule I attached hereto
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Atmos Energy Corporation, a Texas and Virginia corporation (the
Company
), proposes to sell
$250,000,000 aggregate principal amount of the Companys 6.35% Senior Notes due 2017 on the terms
and conditions stated herein (the
Securities
). This is to confirm the agreement concerning the
purchase of the Securities from the Company by the Underwriters. The Securities are to be issued
pursuant to an indenture to be dated as of June 14, 2007 (the
Indenture
) between the Company and
U.S. Bank National Association, as trustee (the
Trustee
) and an officers certificate to be dated
as of June 14, 2007 pursuant to Section 301 of the Indenture (the
Section 301 Officers
Certificate
). The Securities and the Indenture are more fully described in the Prospectus
(defined below).
1.
Representations, Warranties and Agreements of the Company
. The Company represents,
warrants and agrees that:
(a) A registration statement on Form S-3 (File No. 333-139093), including a base
prospectus relating to the Securities (i) has been prepared by the Company in conformity
with the requirements of the Securities Act of 1933, as amended (the
Securities Act
), and
the rules and regulations (the
Rules and Regulations
) of the Securities and Exchange
Commission (the
Commission
) thereunder; (ii) has been filed with the Commission under the
Securities Act; and (iii) is effective under the Securities
Act. Copies of the Registration Statement (as defined below) have been delivered by
the Company to you as the representative (the
Representative
) of the Underwriters. As
used in this Agreement:
(i)
Applicable Time
means 2:33PM (New York City time) on the date of this
Agreement;
(ii)
Effective Date
means any date as of which any part of the Registration
Statement became effective under the Securities Act in accordance with the Rules and
Regulations;
(iii)
General Use Issuer Free Writing Prospectus
means any Issuer Free
Writing Prospectus that is intended for general distribution to prospective
investors as evidenced by its being so specified in Schedule II to this Agreement;
(iv)
Issuer Free Writing Prospectus
means any free writing prospectus (as
defined in Rule 405 of the Rules and Regulations) prepared by or on behalf of the
Company or used or referred to by the Company in connection with the offering of the
Securities;
(v)
Preliminary Prospectus
means the base prospectus included in the
Registration Statement, together with any preliminary prospectus supplement relating
to the Securities filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations;
(vi)
Pricing Disclosure Package
means, as of the Applicable Time, the most
recent Preliminary Prospectus, together with any General Use Issuer Free Writing
Prospectus filed or used by or on behalf of the Company on or before the Applicable
Time as permitted by this Agreement;
(vii)
Prospectus
means the base prospectus included in the Registration
Statement, together with the final prospectus supplement relating to the Securities
filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations; and
(viii)
Registration Statement
means, the registration statement described
above, as amended as of the Effective Date for such part, including the Prospectus
and all exhibits to such registration statement and any document incorporated by
reference therein.
Any reference to any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any documents incorporated by reference therein pursuant to Form S-3 under the
Securities Act as of the date of such Preliminary Prospectus or the Prospectus, as the case
may be. Any reference to the
most recent Preliminary Prospectus
shall be deemed to refer
to the base prospectus included in the Registration Statement, together with the latest
preliminary prospectus supplement relating to the Securities filed with the Commission
pursuant to Rule 424(b) prior to or on the date hereof (including, for purposes hereof, any
documents incorporated by reference therein prior to or on the date
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hereof). Any reference to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any document filed under the Securities
Exchange Act of 1934, as amended (the
Exchange Act
), after the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and incorporated by reference in such
Preliminary Prospectus or the Prospectus, as the case may be; and any reference to any
amendment to the Registration Statement shall be deemed to include any annual report of the
Company on Form 10-K filed with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act after the Effective Date that is incorporated by reference in the Registration
Statement. The Commission has not issued any stop order preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or suspending the effectiveness of the
Registration Statement, and no proceeding or examination for such purpose has been
instituted or, to the knowledge of the Company, threatened by the Commission. The
Commission has not notified the Company of any objection to the use of the form of the
Registration Statement.
(b) At the time of filing the Registration Statement and, if applicable, at the time of the
most recent amendment thereto for purposes of complying with Section 10(a)(3) of the Securities
Act, the Company was a well-known seasoned issuer (as defined in Rule 405 of the Rules and
Regulations) eligible to use Form S-3 for the offering of the Securities, including not having been
an ineligible issuer (as defined in Rule 405 of the Rules and Regulations) at any such time. The
Registration Statement is an automatic shelf registration statement (as defined in Rule 405 of
the Rules and Regulations) and was filed not earlier than the date that is three years prior to the
applicable Delivery Date (as defined in Section 4).
(c) The Registration Statement conformed and will conform in all material respects on the
Effective Date and on the applicable Delivery Date, and any amendment to the Registration Statement
filed after the date hereof will conform in all material respects when filed, to the requirements
of the Securities Act and the Rules and Regulations. The Preliminary Prospectus conformed, and the
Prospectus will conform, in all material respects when filed with the Commission pursuant to Rule
424(b) and on the applicable Delivery Date to the requirements of the Securities Act and the Rules
and Regulations. The documents incorporated by reference in any Preliminary Prospectus or the
Prospectus conformed, and any further documents so incorporated will conform, when filed with the
Commission, in all material respects to the requirements of the Exchange Act, the Securities Act or
the Trust Indenture Act, as applicable, and the rules and regulations of the Commission thereunder.
(d) The Registration Statement did not, as of the Effective Date, 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 not misleading;
provided
that no representation or warranty is made as
to information contained in or omitted from the Registration Statement in reliance upon and in
conformity with written information furnished to the Company through the Representative by or on
behalf of any Underwriter specifically for inclusion therein, which information is specified in
Section 8(e).
(e) The Prospectus will not, as of its date and on the applicable Delivery Date, 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
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they were made, not misleading;
provided
that no representation or warranty is made as to
information contained in or omitted from the Prospectus in reliance upon and in conformity with
written information furnished to the Company through the Representative by or on behalf of any
Underwriter specifically for inclusion therein, which information is specified in Section 8(e).
(f) The documents incorporated by reference in any Preliminary Prospectus or the Prospectus
did not, and any further documents filed and incorporated by reference therein will not, when filed
with the Commission, 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. There are no contracts or documents
which are required to be described in the Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(g) The Pricing Disclosure Package did not, as of the Applicable Time, 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
that no representation or warranty is made as to information
contained in or omitted from the Pricing Disclosure Package in reliance upon and in conformity with
written information furnished to the Company through the Representative by or on behalf of any
Underwriter specifically for inclusion therein, which information is specified in Section 8(e).
(h) Each Issuer Free Writing Prospectus (including, without limitation, any road show that is
a free writing prospectus under Rule 433), when considered together with the Pricing Disclosure
Package as of the Applicable Time, did not 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.
(i) Each Issuer Free Writing Prospectus conformed or will conform in all material respects to
the requirements of the Securities Act and the Rules and Regulations on the date of first use, and
the Company has complied with any filing requirements applicable to such Issuer Free Writing
Prospectus pursuant to the Securities Act and the Rules and Regulations. Each Issuer Free Writing
Prospectus does not and will not conflict with the information contained in the Registration
Statement, the most recent Preliminary Prospectus or the Prospectus. The Company has not made any
offer relating to the Securities that would constitute an Issuer Free Writing Prospectus without
the prior written consent of the Representative. The Company has retained in accordance with the
Rules and Regulations all Issuer Free Writing Prospectuses that were not required to be filed
pursuant to the Rules and Regulations.
(j) The Company has been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Texas and the Commonwealth of Virginia and has corporate
power and authority to own, lease and operate its properties and to conduct its business as
described in the most recent Preliminary Prospectus and to enter into and perform its obligations
under this Agreement, the Indenture and the Securities; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership or
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leasing of property or the conduct of business, except where the failure so to qualify or to
be in good standing would not result in a material adverse change, or a development known to the
Company involving a prospective material adverse change, in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of business (a
Material Adverse Effect
).
(k) Each significant subsidiary (as such term is defined in Rule 405 of the Securities Act)
of the Company (each a
Subsidiary
and, collectively, the
Subsidiaries
) (a) has been duly
organized and is validly existing as an entity in good standing under the laws of the jurisdiction
of its formation, (b) has corporate or limited liability company power and authority, as
applicable, to own, lease and operate its properties and to conduct its business as described in
the most recent Preliminary Prospectus and is duly qualified as a foreign entity to transact
business and is in good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of business, except where
the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
The only Subsidiaries of the Company are the subsidiaries listed on Schedule IV and the Company
does not own or control, directly or indirectly, any corporation, association or other entity other
than the subsidiaries listed on Schedule III.
(l) The authorized, issued and outstanding capital stock of the Company is as set forth in
each of the most recent Preliminary Prospectus and the Prospectus under the caption
Capitalization (except for subsequent issuances, if any, pursuant to reservations, agreements,
acquisitions or employee benefit plans each referred to in each of the most recent Preliminary
Prospectus and the Prospectus or pursuant to the exercise of options or share unit awards, each
referred to in each of the most recent Preliminary Prospectus and the Prospectus). The shares of
issued and outstanding capital stock of the Company have been duly authorized and validly issued
and are fully paid and non-assessable; none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights of any securityholder of
the Company.
(m) All of the issued and outstanding capital stock or limited liability company membership
interests, as the case may be, of each Subsidiary have been duly authorized and validly issued, are
fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except for
such liens, encumbrances, equities or claims as would not, in the aggregate, reasonably be expected
to have a Material Adverse Effect; none of the outstanding shares of capital stock or limited
liability company membership interests, as the case may be, of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of such Subsidiary.
(n) The Indenture has been duly qualified under the Trust Indenture Act. The Indenture has
been duly authorized by the Company and, at the Delivery Date, will be executed and delivered by
the Company and constitute a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting the
enforcement of creditors rights generally and by equitable principles of general
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applicability, regardless of whether such enforceability is considered in a proceeding at
equity or at law. At the Delivery Date, the Section 301 Officers Certificate will have been duly
authorized, executed and delivered by the Company.
(o) The Securities have been duly authorized by the Company and, at the Delivery Date, will
have been duly executed by the Company and, when authenticated, issued and delivered in the manner
provided for in the Indenture and delivered against payment of the purchase price therefor as
provided in this Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or
affecting the enforcement of creditors rights generally and by equitable principles of general
applicability, regardless of whether such enforceability is considered in a proceeding at equity or
at law, and will be in the form contemplated by the Pricing Disclosure Package, the Prospectus, the
Indenture and the Section 301 Officers Certificate, and will be entitled to the benefits of the
Indenture.
(p) The Securities and the Indenture will conform in all material respects to the respective
statements relating thereto contained in the Pricing Disclosure Package and the Prospectus and will
be in substantially the respective forms filed or incorporated by reference, on or prior to the
Delivery Date, as exhibits to the Registration Statement.
(q) The Company has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement. This Agreement has been duly and validly authorized,
executed and delivered by the Company.
(r) Neither the Company nor any of its subsidiaries is in violation of its charter, bylaws or
other organizational documents or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any subsidiary is subject (collectively,
Agreements and
Instruments
) except for such defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement, the Indenture, the Securities and any other
agreement or instrument entered into or issued or to be entered into or issued by the Company in
connection with the consummation of the transactions contemplated in each of the most recent
Preliminary Prospectus and the Prospectus (including the issuance and sale of the Securities and
the use of the proceeds from the sale of the Securities as described in each of the most recent
Preliminary Prospectus and the Prospectus under the caption Use of Proceeds) and compliance by
the Company with its obligations hereunder and thereunder have been duly authorized by all
necessary corporate or other action on the part of the Company and any of the subsidiaries and do
not and will not, whether with or without the giving of notice or passage of time or both, conflict
with or constitute a breach of, or default or Repayment Event (as defined below) under, or result
in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts,
breaches or defaults or liens, charges, encumbrances or a Repayment Event that would not result in
a Material Adverse Effect), nor will such action result in any violation of (i) the provisions of
the charter, bylaws or other
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organizational documents of the Company or any subsidiary or (ii) any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any subsidiary or any of their
assets, properties or operations except, with respect to (ii), as would not result in a Material
Adverse Effect. As used herein, a
Repayment Event
means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any person acting on such
holders behalf) the right, whether with or without giving of notice or passage of time or both, to
require the repurchase, redemption or repayment of all or a portion of such indebtedness by the
Company or any subsidiary.
(s) No labor dispute with the employees of the Company or any of its subsidiaries exists or,
to the knowledge of the Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any subsidiarys principal suppliers,
manufacturers, customers or contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(t) There is no action, suit, proceeding, inquiry or investigation before or brought by any
court or governmental agency or body, domestic or foreign, now pending against, or, to the
knowledge of the Company, threatened against or affecting the Company or any of its subsidiaries,
which is required to be disclosed in the most recent Preliminary Prospectus (other than as
disclosed therein), or which might reasonably be expected to result in a Material Adverse Effect,
or which might reasonably be expected to affect the properties, assets or operations of the Company
and its subsidiaries, except what does not result in a Material Adverse Effect, or the consummation
of the transactions contemplated in this Agreement or the performance by the Company and its
subsidiaries of its obligations hereunder.
(u) The Company and each of its Subsidiaries own or possess or have the right to use, or can
acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively,
Intellectual Property
) necessary to carry on the business
now operated by them the absence of which would have a Material Adverse Effect, and neither the
Company nor any of its subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its subsidiaries therein, and which
infringement, conflict, invalidity or inadequacy would result in a Material Adverse Effect.
(v) There have been issued and, at the Applicable Time and the Delivery Date, there shall be
in full force and effect orders or authorizations of the regulatory authorities of the States of
Colorado, Georgia, Illinois, Kentucky and Virginia respectively, authorizing the issuance and sale
of the Securities on terms herein set forth or contemplated and no other filing with, or
authorization, approval, consent, license, order, registration, qualification or decree of, any
court or governmental authority or agency is necessary or required for the performance by the
Company of its obligations hereunder, in connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the transactions contemplated by this Agreement
including the due execution, delivery or performance of the Indenture and the issuance of the
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Securities by the Company, except such as have been already obtained or as may be required
under the Securities Act or the Rules and Regulations or state securities or blue sky laws.
(w) The Company and its subsidiaries possess such permits, licenses, approvals, consents, and
other authorizations (collectively,
Governmental Licenses
) issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct the business now
operated by them, except where the failure to do so would not have a Material Adverse Effect; the
Company and its subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate,
have a Material Adverse Effect; all of the Governmental Licenses are valid and in full force and
effect, except when the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a Material Adverse Effect; and
neither the Company nor any of its subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such Governmental Licenses which, singly or in the aggregate,
would result in a Material Adverse Effect.
(x) There are no persons or entities with registration rights or other similar rights to have
any securities registered under the Registration Statement who have not properly waived such rights
in connection with the securities registered pursuant to the Registration Statement and in
connection with this offering of Securities.
(y) The Company and its subsidiaries have good title to all real property owned by the Company
and its subsidiaries and good title to all other properties owned by them, in each case, free and
clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of
any kind except such as (a) are described in the most recent Preliminary Prospectus or (b) would
not singly or in the aggregate have a Material Adverse Effect. All of the leases and subleases of
the Company and its subsidiaries under which the Company or any of its subsidiaries holds
properties described in the most recent Preliminary Prospectus are in full force and effect, except
as would not result in a Material Adverse Effect.
(z) The Company has not sold or issued any securities that would be integrated with the
offering of the Securities contemplated by this Agreement pursuant to the Securities Act, the Rules
and Regulations or the interpretations thereof by the Commission.
(aa) The financial statements of the Company included or incorporated by reference in the
Registration Statement, the most recent Preliminary Prospectus and the Prospectus, together with
the related schedules and notes, present fairly in all material respects the financial position of
the Company and its consolidated subsidiaries at the dates indicated and the statement of
operations, stockholders equity and cash flows of the Company and its consolidated subsidiaries
for the periods specified; said financial statements have been prepared in conformity with
generally accepted accounting principles (
GAAP
) applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the Registration Statement and
incorporated by reference in the most recent Preliminary Prospectus and the Prospectus with respect
to the Company, when considered in relation to the financial statements taken as a whole, present
fairly, in all material respects in accordance with GAAP, the financial information set forth
therein. The selected financial data and the summary financial information included or
incorporated by reference in the most recent Preliminary Prospectus and the Prospectus present
8
fairly, in all material respects, the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements of the Company.
(bb) Ernst & Young LLP, who have certified financial statements and supporting schedules of
the Company and its consolidated subsidiaries, whose report is incorporated by reference in the
most recent Preliminary Prospectus and in the Registration Statement, who have audited the
Companys internal control over financial reporting and managements assessment thereof and who
have delivered the initial letter referred to in Section 7(i) hereof, are registered independent
public accountants as required by the Securities Act and the Rules and Regulations.
(cc) The Company and each of its subsidiaries are not, and as of the applicable Delivery Date
and upon the issuance and sale of the Securities and the application of the proceeds therefrom as
described under Use of Proceeds in the most recent Preliminary Prospectus and the Prospectus,
none of them will be, (i) an investment company or an entity controlled by an investment
company as such terms are defined in the Investment Company Act of 1940, as amended (the
Investment Company Act
) and the rules and regulations of the Commission thereunder or (ii) a
business development company (as defined in Section 2(a)(48) of the Investment Company Act).
(dd) (i) Each employee benefit plan (within the meaning of Section 3(3) of the Employee
Retirement Security Act of 1974, as amended (
ERISA
)) for which the Company or any member of its
Controlled Group (defined as any organization which is a member of a controlled group of
corporations within the meaning of Section 414(b) or (c) of the Internal Revenue Code of 1986, as
amended (the
Code
)) would have any liability (each a
Plan
) has been maintained in compliance in
all respects with its terms and with the requirements of all applicable statutes, rules and
regulations including ERISA and the Code except where failure to do so would not have a Material
Adverse Effect; (ii) with respect to each Plan subject to Title IV of ERISA (a) no reportable
event (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to
occur that would result in a Material Adverse Effect, (b) no accumulated funding deficiency
(within the meaning of Section 302 of ERISA or Section 412 of the Code), whether or not waived, has
occurred or is reasonably expected to occur that would result in a Material Adverse Effect, (c) the
fair market value of the assets under each Plan exceeds the actuarial present value of the benefits
accrued under such Plan (determined based on those assumptions used to fund such Plan) except where
failure to do so would not have a Material Adverse Effect, and (d) neither the Company nor any
member of its Controlled Group has incurred, or reasonably expects to incur, any liability under
Title IV of ERISA (other than contributions to the Plan or premiums to the Pension Benefit Guaranty
Corporation in the ordinary course and without default) in respect of a Plan (including a
multiemployer plan, within the meaning of Section 4001(c)(3) of ERISA) that would result in a
Material Adverse Effect; and (iii) each Plan that is intended to be qualified under Section 401(a)
of the Code has received a favorable determination letter from the Internal Revenue Service as to
its qualified status and nothing has occurred, whether by action or by failure to act, which would
cause the loss of such qualification that would result in a Material Adverse Effect.
(ee) The Company is in compliance, in all material respects, with the provisions of the
Sarbanes-Oxley Act of 2002 to the extent currently applicable.
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(ff) The Company and each of its subsidiaries have filed all federal, state and local income
and franchise tax returns required to be filed through the date hereof and have paid all taxes due
thereon, except such as are being contested in good faith by appropriate proceedings or where the
failure to do so would not have a Material Adverse Effect, and no tax deficiency has been
determined adversely to the Company or any of its subsidiaries which has had, and the Company does
not have any knowledge of any tax deficiency which would have, a Material Adverse Effect.
(gg) The Company and its subsidiaries carry, or are covered by, insurance in such amounts and
covering such risks as is adequate for the conduct of their respective businesses and the value of
their respective properties, except where the failure to do so would not reasonably be expected to
have a Material Adverse Effect.
(hh) Except as would not result in a Material Adverse Effect, (A) neither the Company nor any
of its subsidiaries is in violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, permit, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively,
Hazardous Materials
) or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively,
Environmental Laws
), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable Environmental Laws and are each
in compliance with their requirements, (C) there are no pending or, to the knowledge of the
Company, threatened administrative, regulatory or judicial actions, suits, demands, demand letters,
claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or governmental body or agency,
against or affecting the Company or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws, except as disclosed in the Preliminary Prospectus.
(ii) The Company maintains a system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) of the Exchange Act) that complies with the requirements of the
Exchange Act and has been designed by the Companys principal executive officer and principal
financial officer, or under their supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with GAAP. The Companys internal control over financial reporting is
effective and the Company is not aware of any material weaknesses in its internal control over
financial reporting. Since the date of the latest audited financial statements included or
incorporated by reference in the most recent Preliminary Prospectus, there has been no change in
the Companys internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Companys internal control over financial reporting.
The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-
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15(e) of the Exchange Act) that comply with the requirements of the Exchange Act and such
disclosure controls and procedures have been designed to provide reasonable assurance that material
information relating to the Company and its subsidiaries that is required to be disclosed in the
reports the Company files, furnishes, submits or otherwise provides to the Commission under the
Exchange Act is made known to the Companys principal executive officer and principal financial
officer by others within those entities in such a manner as to allow timely decisions regarding the
required disclosure; such disclosure controls and procedures are effective.
(jj) The Company has not distributed and, prior to the later to occur of any Delivery Date and
completion of the distribution of the Securities, will not distribute any offering material in
connection with the offering and sale of the Securities other than any Preliminary Prospectus, the
Prospectus, any Issuer Free Writing Prospectus to which the Representative has consented in
accordance with Section 1(i) or 5(a)(viii).
(kk) The Company has delivered to the Floating Rate Notes Trustee an irrevocable notice of
redemption of 100% of the Floating Rate Notes pursuant to the terms and requirements of the
Floating Rate Notes Indenture and the Floating Rate Notes setting July 15, 2007 as the date of
redemption of the Floating Rate Notes. The Company is not aware of any fact that will prevent it
from redeeming its Floating Rate Senior Notes due 2007 (the
Floating Rate Notes
) issued under an
indenture dated as of May 22, 2001 (the
Floating Rate Indenture
) between the Company and SunTrust
Bank (the
Floating Rate Indenture Trustee
) in the manner described in the Pricing Disclosure
Package (the
Floating Rate Note Redemption
).
Any certificate signed by any officer of the Company and delivered to the Representative or
counsel for the Underwriters in connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered thereby on the date of such
certificate, to each Underwriter.
2.
Purchase of the Securities by the Underwriters.
On the basis of the representations and
warranties contained in, and subject to the terms and conditions of, this Agreement, the Company
agrees to sell $250,000,000 aggregate principal amount of Securities to the several Underwriters,
and each of the Underwriters, severally and not jointly, agrees to purchase from the Company, at a
price set forth in Schedule V, the aggregate principal amount of Securities set forth opposite that
Underwriters name in Schedule I hereto, plus any additional principal amount of Securities that
such Underwriter may become obligated to purchase pursuant to Section 9 of this Agreement.
The Company shall not be obligated to deliver any of the Securities to be delivered on the
Delivery Date, except upon payment for all such Securities to be purchased on such Delivery Date as
provided herein.
11
3.
Offering of Securities by the Underwriters
. Upon authorization by the
Representative of the release of the Securities, the several Underwriters propose to offer the
Securities for sale upon the terms and conditions to be set forth in the Prospectus.
4.
Delivery of and Payment for the Securities
.
Delivery of the Securities by the
Company and payment for the Securities by the several Underwriters shall be made at 10:00 A.M., New
York City time, on the third full business day following the date of this Agreement or at such
other date or place as shall be determined by agreement between the Representative and the Company.
This date and time is referred to as the
Delivery Date
. Delivery of the Securities shall be
made to the Representative for the account of each Underwriter against payment by the several
Underwriters through the Representative of the respective aggregate purchase prices, as set forth
in Section 2 hereof, of the Securities being sold by the Company to or upon the order of the
Company by wire transfer in immediately available funds to the accounts specified by the Company.
Time shall be of the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter hereunder. The Company
shall deliver the Securities through the facilities of the Depository Trust Company (
DTC
) unless
the Representative shall otherwise instruct.
The Securities to be purchased by the Underwriters shall be in such denominations ($1,000 or
integral multiples thereof) and registered in such names as the Representative may request in
writing prior to the Delivery Date. The Securities will be made available in New York City for
examination by the Underwriters not later than 10:00 A.M., New York City time, on the last business
day prior to the Delivery Date.
5.
Further Agreements of the Company and the Underwriters
. (a) The Company agrees:
(i) To prepare the Prospectus in a form reasonably approved by the Representative and
to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the
Commissions close of business on the second business day following the execution and
delivery of this Agreement; to make no further amendment or any supplement to the
Registration Statement or the Prospectus prior to the last Delivery Date except as provided
herein; to advise the Representative, promptly after it receives notice thereof, of the time
when any amendment or supplement to the Registration Statement or the Prospectus has been
filed and to furnish the Representative 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 subsequent
to the date of the Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities; to advise the Representative,
promptly after it receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of the Prospectus or any Issuer Free
Writing Prospectus, of the suspension of the qualification of the Securities for offering or
sale in any jurisdiction, of the initiation or threatening of any proceeding or examination
for any such purpose, of any notice from the Commission objecting to the use of the form of
the Registration Statement or any post-effective amendment thereto or of any request by the
Commission for the amending or supplementing of the Registration Statement, the Prospectus
or any
12
Issuer Free Writing Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the use of the
Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to
use promptly its best efforts to obtain its withdrawal;
(ii) To prepare a final term sheet (the
Final Term Sheet
) reflecting the final terms
of the Securities as set forth in Exhibit B to this Agreement, in form and substance
satisfactory to the Representative, and shall file such Final Term Sheet as an Issuer Free
Writing Prospectus pursuant to Rule 433 prior to the close of business two business days
after the date hereof;
provided that
the Company shall furnish the Representative with
copies of any such Final Term Sheet a reasonable amount of time prior to such proposed
filing and will not use or file any such document to which Representative or counsel to the
Underwriters shall reasonably object.
(iii) To pay the applicable Commission filing fees relating to the Securities within
the time required by Rule 456(b)(1);
(iv) To furnish promptly to counsel for the Underwriters a signed copy of the
Registration Statement as originally filed with the Commission, and each amendment thereto
filed with the Commission, including all consents and exhibits filed therewith;
(v) To deliver promptly to the Representative such number of the following documents as
the Representative shall reasonably request: (A) conformed copies of the Registration
Statement as originally filed with the Commission and each amendment thereto (in each case
excluding exhibits other than this Agreement and the computation of per share earnings), (B)
each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, (C) any
Issuer Free Writing Prospectus and (D) any document incorporated by reference in any
Preliminary Prospectus or the Prospectus; and, if the delivery of a prospectus is required
at any time after the date hereof in connection with the offering or sale of the Securities
or any other securities relating thereto and if at such time any events 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 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 Securities
Act or the Exchange Act, to notify the Representative and, upon the Representatives
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 Representative may from time to time
reasonably request of an amended or supplemented Prospectus that will correct such statement
or omission or effect such compliance;
(vi) To file promptly with the Commission any amendment or supplement to the
Registration Statement or the Prospectus that may, in the judgment of the Company or the
Representative, be required by the Securities Act or requested by the Commission;
13
(vii) Prior to filing with the Commission any amendment or supplement to the
Registration Statement or the Prospectus, any document incorporated by reference in the
Prospectus or any amendment to any document incorporated by reference in the Prospectus, to
furnish a copy thereof to the Representative and counsel for the Underwriters and obtain the
consent (not to be unreasonably withheld) of the Representative to the filing;
(viii) Not to make any offer relating to the Securities that would constitute an Issuer
Free Writing Prospectus without the prior written consent of the Representative.
(ix) To retain in accordance with the Rules and Regulations all Issuer Free Writing
Prospectuses not required to be filed pursuant to the Rules and Regulations and to comply
with any filing requirements applicable to all Issuer Free Writing Prospectuses pursuant to
the Securities Act and the Rules and Regulations; and if at any time after the date hereof
any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as
then amended or supplemented, would conflict with the information in the Registration
Statement, the most recent Preliminary Prospectus or the Prospectus or 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,
not misleading, or, if for any other reason it shall be necessary to amend or supplement any
Issuer Free Writing Prospectus, to notify the Representative and, upon the Representatives
request, to file such document and to prepare and furnish without charge to each Underwriter
as many copies as the Representative may from time to time reasonably request of an amended
or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or
omission or effect such compliance;
(x) As soon as practicable, to make generally available to the Companys security
holders an earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations;
(xi) Promptly from time to time to take such action to qualify the Securities for
offering and sale under the securities laws of such jurisdictions as the Representative may
reasonably 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 the Securities;
provided
that in connection therewith the Company shall not
be required to (i) qualify as a foreign corporation in any jurisdiction in which it would
not otherwise be required to so qualify, (ii) take any action that would subject it to
service of process in any such jurisdiction or (iii) subject itself to taxation in any
jurisdiction in which it would not otherwise be subject;
(xii) During the period from the date hereof to the Delivery Date, without the prior
written consent of the Representative, the Company agrees not to directly or indirectly,
issue, sell, offer or contract to sell, grant any option for the sale of, or otherwise
transfer or dispose of, any debt securities issued or guaranteed by the Company other than
commercial paper backstopped by the Companys existing credit agreement;
14
(xiii) To apply the net proceeds from the sale of the Securities being sold by the
Company as set forth in the Pricing Disclosure Package and to take all actions required
under the Floating Rate Notes Indenture to complete the Floating Rate Note Redemption;
(xiv) To take all reasonable action necessary to enable Standard & Poors Rating
Services, a division of McGraw Hill, Inc. (
S&P
), Moodys Investors Service Inc.
(
Moodys
) and Fitch IBCA, Inc. (
Fitch
) to provide their respective credit ratings of the
Securities.
(xv) To cooperate with the Underwriters and use its best efforts to permit the
Securities to be eligible for clearance and settlement through the facilities of DTC.
(b) Each Underwriter severally agrees that such Underwriter shall not include any
issuer information (as defined in Rule 433) in any free writing prospectus (as defined
in Rule 405) used or referred to by such Underwriter without the prior consent of the
Company (any such issuer information with respect to whose use the Company has given its
consent,
Permitted Issuer Information
);
provided
that issuer information, as used in
this Section 5(b), shall not be deemed to include information prepared by or on behalf of
such Underwriter on the basis of or derived from issuer information, provided, however, that
prior to the preparation of the Final Term Sheet in accordance with Section 5(a)(ii), the
Underwriters are authorized to use the information with respect to the final terms of the
Securities in communications conveying information relating to the offering to investors.
6.
Expenses.
The Company agrees, whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, to pay all costs, expenses, fees and
taxes incident to and in connection with (a) the preparation, authorization, issuance, sale and
delivery of the Securities and any stamp duties or other taxes payable in that connection; (b) the
preparation, printing and filing under the Securities Act of the Registration Statement (including
any exhibits thereto), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing
Prospectus and any amendment or supplement thereto; (c) the distribution of the Registration
Statement (including any exhibits thereto), any Preliminary Prospectus, the Prospectus, any Issuer
Free Writing Prospectus and any amendment or supplement thereto, or any document incorporated by
reference therein, all as provided in this Agreement; (d) the production and distribution of this
Agreement, the Indenture, the Securities, any supplemental agreement among Underwriters, and any
other related documents in connection with the offering, purchase, sale and delivery of the
Securities; (e) the qualification of the Securities under the securities laws of the several
jurisdictions as provided in Section 5(a)(xi) and the preparation, printing and distribution of a
Blue Sky Memorandum (including related reasonable fees and expenses of counsel to the
Underwriters); (f) the investor presentations on any road show undertaken in connection with the
marketing of the Securities, including, without limitation, expenses associated with any electronic
roadshow, travel and lodging expenses of the representatives and officers of the Company and the
cost of any aircraft chartered; (g) any fees payable in connection with the rating of the
Securities; (h) the reasonable fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee, in connection with the Indenture and the Securities and
(h) all other costs and expenses incident to the performance of the obligations of the Company;
provided
that, except as provided in this Section 6 and
15
Section 11, the Underwriters shall pay their own costs and expenses, including the costs
and expenses of their counsel, any transfer taxes on the Securities which they may sell and the
expenses of advertising any offering of the Securities made by the Underwriters.
7.
Conditions of Underwriters Obligations
. The respective obligations of the Underwriters
hereunder are subject to the accuracy, when made and on each Delivery Date, of the representations
and warranties of the Company contained herein, to the performance by the Company of its
obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section
5(i); the Company shall have complied with all filing requirements applicable to any Issuer Free
Writing Prospectus, including the Final Term Sheet and any Issuer Free Writing Prospectus used or
referred to after the date hereof; no stop order suspending the effectiveness of the Registration
Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing
Prospectus shall have been issued and no proceeding or examination for such purpose shall have been
initiated or, to the knowledge of the Company, threatened by the Commission; any request of the
Commission for inclusion of additional information in the Registration Statement or the Prospectus
or otherwise shall have been complied with; and the Commission shall not have notified the Company
of any objection to the use of the form of the Registration Statement.
(b) Gibson, Dunn & Crutcher LLP, as counsel to the Company, shall have furnished to the
Representative its written opinion and letter, addressed to the Underwriters and dated such
Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially
to the effect set forth in
Exhibit B-1
.
(c) Hunton & Williams LLP, as Virginia counsel to the Company, shall have furnished to the
Representative its written opinion, addressed to the Underwriters and dated such Delivery Date, in
form and substance reasonably satisfactory to the Representative, substantially to the effect set
forth in
Exhibit B-2
(d) Louis P. Gregory, as General Counsel to the Company, shall have furnished to the
Representative his written opinion and letter, addressed to the Underwriters and dated such
Delivery Date, in form and substance reasonably satisfactory to the Representative, substantially
to the effect set forth in
Exhibit B-3
.
(e) The Trustee shall have received opinion letters, dated such Delivery Date, from Gibson,
Dunn & Crutcher LLP and Hunton & Williams LLP, as the Trustee may reasonably require.
(f) The Representative shall have received from Shearman & Sterling LLP, counsel for the
Underwriters, such opinion or opinions, dated such Delivery Date, as the Underwriters may
reasonably require.
(g) At the time of execution of this Agreement, the Representative shall have received from
Ernst & Young LLP a letter, in form and substance satisfactory to the Representative, addressed to
the Underwriters and dated the date hereof (i) confirming that they
16
are independent public accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the qualification of accountants under Rule
2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect
to matters involving changes or developments since the respective dates as of which specified
financial information is given in the most recent Preliminary Prospectus, as of a date not more
than three days prior to the date hereof), the conclusions and findings of such firm with respect
to the financial information and other matters ordinarily covered by accountants comfort letters
to underwriters in connection with registered public offerings.
(h) With respect to the letter of Ernst & Young LLP referred to in the preceding paragraph and
delivered to the Representative concurrently with the execution of this Agreement (the
initial
letter
), the Company shall have furnished to the Representative a letter (the
bring-down letter
)
of such accountants, addressed to the Underwriters and dated such Delivery Date (i) confirming that
they are independent public accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the qualification of accountants under Rule
2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter
(or, with respect to matters involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as of a date not more than three
days prior to the date of the bring-down letter), the conclusions and findings of such firm with
respect to the financial information and other matters covered by the initial letter and (iii)
confirming in all material respects the conclusions and findings set forth in the initial letter.
(i) The Company shall have furnished to the Representative a certificate, dated such Delivery
Date, of its Chief Executive Officer or its Chief Financial Officer stating that:
(i) The representations, warranties and agreements of the Company in Section 1
are true and correct on and as of such Delivery Date, and the Company has complied
with all its agreements contained herein and satisfied all the conditions on its
part to be performed or satisfied hereunder at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement
has been issued; no proceedings or examination for that purpose have been instituted
or, to the knowledge of such officers, threatened; and the Commission has not
notified the Company of any objection to the use of the form of the Registration
Statement or any post-effective amendment thereto; and
(iii) There has been no material adverse change, or a development known to the
Company involving a prospective material adverse change, in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business.
(j) There has not been any change, or any development known to the Company involving a
prospective change, in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
17
enterprise, whether or not arising in the ordinary course of business, the effect of which is,
in the judgment of the Representative, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Securities being delivered
on such Delivery Date on the terms and in the manner contemplated in the Prospectus; at the
Delivery Date, the Securities shall be rated at least Baa3 by Moodys, BBB by S&P and BBB+ by
Fitch, and subsequent to the execution and delivery of this Agreement (i) no downgrading shall have
occurred in the rating accorded the Companys debt securities by any nationally recognized
statistical rating organization (as that term is defined by the Commission for purposes of Rule
436(g)(2) of the Rules and Regulations) and (ii) no such organization shall have publicly announced
that it has placed the Company under surveillance or review, with possible negative implications,
for its rating of any of the Companys debt securities.
(k) Subsequent to the execution and delivery of this Agreement there shall not have occurred
any of the following: (i) trading in securities generally on the New York Stock Exchange or the
American Stock Exchange or in the over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market, shall have been suspended or materially
limited or the settlement of such trading generally shall have been materially disrupted or minimum
prices shall have been established on any such exchange or such market by the Commission, by such
exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by federal or New York, Texas or Virginia authorities,
(iii) the United States shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall have been a declaration of a
national emergency or war by the United States or (iv) there shall have occurred such a material
adverse change in general economic, political or financial conditions, including, without
limitation, as a result of terrorist activities after the date hereof (or the effect of
international conditions on the financial markets in the United States shall be such), in each
case, as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed
with the public offering or delivery of the Securities being delivered on such Delivery Date on the
terms and in the manner contemplated in the Prospectus.
Counsel for the Underwriters shall have been furnished with such documents and opinions as
they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of
the Securities as herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Company in connection with the issuance and sale of the Securities as
herein contemplated shall be reasonably satisfactory in form and substance to the Representative
and counsel for the Underwriters.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
8.
Indemnification and Contribution
. (a) The Company shall indemnify and hold harmless each
Underwriter, its directors, officers and employees and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage, liability or
18
action relating to purchases and sales of Securities), to which that Underwriter, director,
officer, employee or controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in (A) any Preliminary
Prospectus, the Registration Statement, the Prospectus or in any amendment or supplement thereto,
(B) any Issuer Free Writing Prospectus or in any amendment or supplement thereto or (C) any
Permitted Issuer Information used or referred to in any free writing prospectus (as defined in
Rule 405) permitted by Section 5(b) hereof used or referred to by any Underwriter or (D) any road
show (as defined in Rule 433) not constituting an Issuer Free Writing Prospectus (a
Non-Prospectus Road Show
) or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in
any amendment or supplement thereto or in any Permitted Issuer Information, any Non-Prospectus Road
Show, any material fact required to be stated therein or necessary to make the statements therein
not misleading, and shall reimburse each Underwriter and each such director, officer, employee or
controlling person promptly upon demand for any legal or other expenses reasonably incurred by that
Underwriter, director, officer, employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability or action 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, liability or action arises out of, or is based upon,
any untrue statement or alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing
Prospectus or in any such amendment or supplement thereto or in any Permitted Issuer Information,
any Non-Prospectus Road Show, in reliance upon and in conformity with written information
concerning such Underwriter furnished to the Company through the Representative by or on behalf of
any Underwriter specifically for inclusion therein, which information consists solely of the
information specified in Section 8(e). The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Underwriter or to any director, officer,
employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and hold harmless the
Company, its directors, officers and employees, and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any loss, claim, damage, liability or expense (including reasonable attorneys fees and
expenses relating to investigating or defending or preparing to defend), joint or several, or any
action in respect thereof, to which the Company, or any such director, officer, employee or
controlling person may become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or
supplement thereto or in any Non-Prospectus Road Show, or (ii) the omission or alleged omission to
state in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free
Writing Prospectus or in any amendment or supplement thereto or in any Non-Prospectus Road Show,
any material fact required to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in conformity with written
information concerning such Underwriter furnished to the
19
Company through the Representative by or on behalf of that Underwriter specifically for
inclusion therein, which information is limited to the information set forth in Section 8(e). The
foregoing indemnity agreement is in addition to any liability that any Underwriter may otherwise
have to the Company, or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of any claim
or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to
be made against the indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action;
provided
,
however
, that the failure to
notify the indemnifying party shall not relieve it from any liability which it may have under this
Section 8 except to the extent it has been materially prejudiced by such failure and,
provided
,
further
, that the failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8. If any such claim
or action shall be brought against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation;
provided, however
, that the indemnified party
shall have the right to employ such other counsel as the indemnified party may deem necessary, and
the indemnifiying party shall bear the reasonable legal or other expenses of such other counsel if
(i) the indemnifying party shall have agreed; (ii) the indemnifying party has failed within a
reasonable time to assume the defense of and retain counsel reasonably satisfactory to the
indemnified party; or (iii) the named parties in any such proceeding (including any impleaded
parties) include both the indemnified party and the indemnifying party, and representation of both
sets of parties by the same counsel would be inappropriate due to actual or potential differing
interests between them;
provided further
, however, that the indemnifying party shall not, in
connection with any one such claim or action or separate but substantially similar or related
claims or actions in the same jurisdiction, arising out of the same general allegations or
circumstances, be liable for the legal or other expenses of more than one separate firm of
attorneys (in addition to local counsel) for all of the indemnified parties, which firm shall be
designated in writing by the Company or the Representative, as applicable, and that all such legal
or other expenses shall be reimbursed as they are incurred. No indemnifying party shall (i)
without the prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability arising out of such claim,
action, suit or proceeding, provided that such unconditional release may be subject to parallel
release by a claimant or plaintiff of such indemnified party, and does not include any findings of
fact or admissions of fault or culpability as to the indemnified party, or (ii) be liable for any
settlement of any such action effected without its written consent, but if settled with the consent
of the indemnifying party or if there be a final judgment for the plaintiff in any such action, the
indemnifying party agrees to
20
indemnify and hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any reason be unavailable
to or insufficient to hold harmless an indemnified party under Section 8(a), 8(b), 8(c) in respect
of any loss, claim, damage or liability, or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to
the amount paid or payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be appropriate to reflect
the relative benefits received by the Company, on the one hand, and the Underwriters, on the other,
from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the Company, on the one
hand, and the Underwriters, on the other, with respect to the statements or omissions that resulted
in such loss, claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the Company, on the one hand,
and the Underwriters, on the other, with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Securities purchased under this
Agreement (before deducting expenses) received by the Company, as set forth in the table on the
cover page of the Prospectus, on the one hand, and the total underwriting discounts and commissions
received by the Underwriters with respect to the aggregate principal amount of Securities purchased
under this Agreement, as set forth in the table on the cover page of the Prospectus, on the other
hand. The relative fault shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) were to be determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to herein. The amount paid
or payable by an indemnified party as a result of the loss, claim, damage or liability, or action
in respect thereof, referred to above in this Section 8(d) shall be deemed to include, for purposes
of this Section 8(d), any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action. Notwithstanding the provisions of this
Section 8(d), no Underwriter shall be required to contribute any amount in excess of the amount by
which the net proceeds from the sale of the Securities underwritten by it exceeds the amount of any
damages that such Underwriter has otherwise paid or become liable to pay by reason of any 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters obligations to contribute as provided in this Section 8(d) are several in proportion
to their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company acknowledges and agrees that the
statements regarding the concession and reallowance figures and the paragraph relating to
stabilization by the Underwriters appearing under the caption Underwriting in, the most
21
recent Preliminary Prospectus and the Prospectus constitute the only information concerning
such Underwriters furnished in writing to the Company by or on behalf of the Underwriters
specifically for inclusion in any Preliminary Prospectus, the Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any
Non-Prospectus Road Show.
9.
Defaulting Underwriters
. If, on any Delivery Date, any Underwriter shall fail or refuse to
purchase the principal amount of Securities agreed to be purchased by such Underwriting hereunder,
the remaining non-defaulting Underwriters shall be obligated to purchase the principal amount of
Securities that the defaulting Underwriter agreed but failed to purchase on such Delivery Date in
the respective proportions which the principal amount of Securities set forth opposite the name of
each remaining non-defaulting Underwriter in Schedule I hereto bears to the aggregate principal
amount of Securities set forth opposite the names of all the remaining non-defaulting Underwriters
in Schedule I hereto;
provided, however
, that the remaining non-defaulting Underwriters shall not
be obligated to purchase any of the Securities on such Delivery Date if the aggregate principal
amount of Securities that the defaulting Underwriter or Underwriters agreed but failed to purchase
on such date exceeds 9.09% of the aggregate principal amount of Securities to be purchased on such
Delivery Date, and any remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the principal amount of Securities that it agreed to purchase on such Delivery Date
pursuant to the terms of Section 2. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriters, or those other underwriters satisfactory to the Representative who so
agree, shall have the right, but shall not be obligated, to purchase, in such proportion as may be
agreed upon among them, all the Securities to be purchased on such Delivery Date. If the remaining
Underwriters or other underwriters satisfactory to the Representative do not elect to purchase the
Securities that the defaulting Underwriter or Underwriters agreed but failed to purchase on such
Delivery Date, this Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company, except that the Company will continue to be liable for the payment of
expenses to the extent set forth in, and subject to the terms of, Sections 6 and 11. As used in
this Agreement, the term Underwriter includes, for all purposes of this Agreement unless the
context requires otherwise, any party not listed in Schedule I hereto that, pursuant to this
Section 9, purchases Securities that a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have
to the Company for damages caused by its default. If other Underwriters are obligated or agree to
purchase the Securities of a defaulting or withdrawing Underwriter, either the Representative or
the Company may postpone the Delivery Date for up to seven full business days in order to effect
any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statement, the Prospectus or in any other document or arrangement.
22
10.
Termination.
The obligations of the Underwriters hereunder may be terminated by the
Representative by notice given to and received by the Company prior to delivery of and payment for
the Securities if, prior to that time, any of the events described in Sections 7(j) and 7(k) shall
have occurred.
11.
Reimbursement of Underwriters Expenses.
If the Company shall fail to tender the
Securities for delivery to the Underwriters by reason of any failure, refusal or inability on the
part of the Company to perform any agreement on its part to be performed, or because any other
condition to the Underwriters obligations hereunder required to be fulfilled by the Company is not
fulfilled for any reason the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel) incurred by the
Underwriters in connection with this Agreement and the proposed purchase of the Securities, and
upon demand the Company shall pay the full amount thereof to the Representative.
12.
Research Analyst Independence.
The Company acknowledges that the Underwriters research
analysts and research departments are required to be independent from their respective investment
banking divisions and are subject to certain regulations and internal policies, and that such
Underwriters research analysts may hold views and make statements or investment recommendations
and/or publish research reports with respect to the Company and/or the offering that differ from
the views of their respective investment banking divisions. The Company hereby waives and
releases, to the fullest extent permitted by law, any claims that the Company may have against the
Underwriters with respect to any conflict of interest that may arise from the fact that the views
expressed by their independent research analysts and research departments may be different from or
inconsistent with the views or advice communicated to the Company by such Underwriters investment
banking divisions. The Company acknowledges that each of the Underwriters is a full service
securities firm and as such from time to time, subject to applicable securities laws, may effect
transactions for its own account or the account of its customers and hold long or short positions
in debt or equity securities of the companies that may be the subject of the transactions
contemplated by this Agreement.
13.
No Fiduciary Duty
. The Company acknowledges and agrees that in connection with this
offering, sale of the Securities or any other services the Underwriters may be deemed to be
providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between
the parties or any oral representations or assurances previously or subsequently made by the
Underwriters: (i) no fiduciary or agency relationships between the Company and any other person,
on the one hand, and the Underwriters, on the other, exist; (ii) the Underwriters are not acting as
advisors, expert or otherwise, to the Company, including, without limitation, with respect to the
determination of the public offering price of the Securities, and such relationship between the
Company on the one hand, and the Underwriters, on the other, is entirely and solely commercial,
based on arms-length negotiations; (iii) any duties and obligations that the Underwriters may have
to the Company shall be limited to those duties and obligations specifically stated herein; and
(iv) the Underwriters and their respective affiliates may have interests that differ from those of
the Company. The Company hereby waives any claims that the Company may have against the
Underwriters with respect to any breach of fiduciary duty in connection with this offering.
23
14.
Notices, Etc
. All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail or facsimile transmission to
the Representative at Merrill Lynch, Pierce, Fenner & Smith Incorporated at 4 World Financial
Center, New York, New York 10080, Attention: Syndicate Department (Fax: 212-449-6700).
(b) if to the Company, shall be delivered or sent by mail or facsimile transmission to the
address of the Company set forth in the Registration Statement, Attention: Louis P. Gregory (Fax:
972-855-3080).
Any such statements, requests, notices or agreements shall take effect at the time of receipt
thereof. The Company shall be entitled to act and rely upon any request, consent, notice or
agreement given or made on behalf of the Underwriters by the Representative.
15.
Persons Entitled to Benefit of Agreement
. This Agreement shall inure to the benefit of
and be binding upon the Underwriters, the Company, any controlling person referred to herein, the
other indemnities referred to herein and their respective successors and assigns, all as and to the
extent provided in this Agreement, and no other person shall acquire or have any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision contained herein.
The term successors and assigns shall not include a purchaser of Securities from any Underwriter
merely because of such purchase.
16.
Survival.
The respective indemnities, representations, warranties and agreements of the
Company and the Underwriters contained in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall survive the delivery of and payment for the
Securities and shall remain in full force and effect, regardless of any investigation made by or on
behalf of any of them or any person controlling any of them.
17.
Definition of the Term Business Day
.
For purposes of this Agreement
business day
means each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking
institutions in New York are generally authorized or obligated by law or executive order to close.
18.
Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
19.
Counterparts.
This Agreement may be executed in one or more counterparts and, if executed
in more than one counterpart, the executed counterparts shall each be deemed to be an original but
all such counterparts shall together constitute one and the same instrument.
20
. Headings.
The headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
24
If the foregoing correctly sets forth the agreement among the Company and the Underwriters,
please indicate your acceptance in the space provided for that purpose below.
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Very truly yours,
ATMOS ENERGY CORPORATION
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By:
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/s/ JOHN P. REDDY
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Name:
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John P. Reddy
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Title:
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Senior Vice President and
Chief Financial Officer
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25
Accepted, as of the date first above written:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
SunTrust Capital Markets, Inc.
Wachovia Capital Markets, LLC
Banc of America Securities LLC
Citigroup Global Markets Inc.
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Lehman Brothers Inc.
Greenwich Capital Markets, Inc.
BNY Capital Markets, Inc.
Comerica Securities, Inc.
Lazard Capital Markets LLC
Piper Jaffray & Co.
SG Americas Securities, LLC
UBS Securities LLC
For itself and as Representative
of the several Underwriters
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MERRILL LYNCH & Co.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
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By:
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/s/ KARL F. SCHLOPY
Authorized Representative
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26
SCHEDULE I
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Principal Amount of
|
Underwriters
|
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Securities
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
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37,500,000
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SunTrust Capital Markets, Inc.
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37,500,000
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Wachovia Capital Markets, LLC
|
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37,500,000
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Banc of America Securities LLC
|
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14,584,000
|
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Citigroup Global Markets Inc.
|
|
|
14,584,000
|
|
Goldman, Sachs & Co.
|
|
|
14,583,000
|
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J.P. Morgan Securities Inc.
|
|
|
14,583,000
|
|
Lehman Brothers Inc.
|
|
|
14,583,000
|
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Greenwich Capital Markets, Inc.
|
|
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14,583,000
|
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BNY Capital Markets, Inc.
|
|
|
8,334,000
|
|
Comerica Securities, Inc.
|
|
|
8,334,000
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Lazard Capital Markets LLC
|
|
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8,333,000
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Piper Jaffray & Co.
|
|
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8,333,000
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SG Americas Securities, LLC
|
|
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8,333,000
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UBS Securities LLC
|
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8,333,000
|
|
|
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|
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Total
|
|
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250,000,000
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Schedule I
SCHEDULE II
GENERAL USE ISSUER FREE WRITING PROSPECTUS
The General Use Issuer Free Writing Prospectus(es) included in the Disclosure Package includes each
of the following:
1. Final Term Sheet dated June 11, 2007, a copy of which is attached as Exhibit B to this
Agreement.
Schedule II
SCHEDULE III
LIST OF ALL SUBSIDIARIES
1.
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Atmos Energy Holdings, Inc.
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2.
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Atmos Energy Marketing, LLC
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3.
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Atmos Energy Services, LLC
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4.
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Atmos Exploration and Production, Inc.
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5.
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Atmos Gathering Company, LLC
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6.
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Atmos Pipeline and Storage, LLC
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7.
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Atmos Power Systems, Inc.
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8.
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Blueflame Insurance Services, LTD
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9.
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Egasco, LLC
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10.
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Energas Energy Services Trust
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11.
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Enermart Energy Services Trust
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12.
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Legendary Lighting, LLC
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13.
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Mississippi Energies, Inc.
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14.
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PDH I Holding Company, Inc.
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15.
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Straight Creek Gathering GP, LLC
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16.
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Straight Creek Gathering, LP
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17.
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Trans Louisiana Gas Pipeline, Inc.
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18.
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Trans Louisiana Gas Storage, Inc.
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19.
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UCG Storage, Inc.
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20.
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Unitary GH&C Products, LLC
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21.
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United Cities Propane Gas, Inc.
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22.
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WKG Storage, Inc.
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Schedule III
SCHEDULE IV
LIST OF SIGNIFICANT SUBSIDIARIES
1.
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Atmos Energy Holdings, Inc.
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2.
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Atmos Energy Marketing, LLC
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Schedule IV
SCHEDULE V
PRICING TERMS
1.
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The initial public offering price of the Securities shall be 99.729% of the principal amount
thereof, plus accrued interest, if any, from the date of issuance.
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2.
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The purchase price to be paid by the Underwriters for the Securities shall be 99.079% of the
principal amount thereof.
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3.
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The interest rate on the Securities shall be 6.35% per annum.
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4.
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The Securities will be redeemable, as a whole or in part, at the option of the Company, at
any time or from the time to time, at a redemption price equal to the greater of (i) 100% of
the principal amount of the Securities to be redeemed or (ii) the sum of the present values of
the remaining scheduled payments of principal and interest on the Securities discounted to the
redemption date on a semi-annual basis at the treasury rate plus 20 basis points, plus, in the
case of each clause (i) and (ii), accrued interest to the date of redemption.
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Schedule V
EXHIBIT A
Filed Pursuant to Rule 433 under the Securities Act of 1933
Registration Statement No. 333-139093
Issuer Free Writing Prospectus, dated June 11, 2007
ATMOS ENERGY CORPORATION
6.35% Senior Notes due 2017
This Free Writing Prospectus relates only to the 6.35% Senior Notes due 2017 of Atmos Energy
Corporation and should be read together with the Preliminary Prospectus Supplement dated June 11,
2007 relating to the 6.35% Senior Notes due 2017.
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Issuer:
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Atmos Energy Corporation
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Security Description:
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Senior Unsecured Notes
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Ratings (Moodys/S&P/Fitch):
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Baa3 / BBB / BBB+ (Stable/Positive/Stable)
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None of these ratings is a recommendation to
buy, sell or hold the Notes. Each rating is subject to revision or withdrawal at any
time and should be evaluated independently of any other rating
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Principal Amount:
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$250,000,000
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Maturity:
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June 15, 2017
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Settlement:
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June 14, 2007; T+3
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Coupon:
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6.35%, payable in arrears
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Interest Payment Dates:
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June 15 and December 15, commencing December 15, 2007
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Benchmark Treasury:
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T 4.50% due 05/15/17
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Benchmark Treasury Price:
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95-03
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Benchmark Treasury Yield:
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5.137%
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Spread to Benchmark Treasury:
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1.25%
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Yield to Maturity:
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6.387%
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Initial Price to Public:
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99.729% per Note
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Redemption Provisions:
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The Notes may be redeemed, at the option of
Atmos Energy Corporation, at any time, in whole or in part, at a redemption price equal
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A
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to the greater of (i) 100% of the principal amount of the Notes to be redeemed
and (ii) the sum of the present values of the remaining scheduled payments of
principal and interest on the Notes to be redeemed discounted, on a semi-annual basis,
at make-whole call, plus, in each case, accrued interest to the date of redemption.
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Make-Whole Call
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Make whole call at T+ 20 basis points
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CUSIP:
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049560 AH8
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Minimum Denominations:
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$1,000
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Joint Book-Running Managers
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Merrill Lynch, Pierce, Fenner & Smith Incorporated, SunTrust Capital Markets,
Inc., Wachovia Capital Markets, LLC
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Senior Co-Managers
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Banc of America Securities LLC., Citigroup
Global Markets Inc., Goldman Sachs & Co., J.P. Morgan Securities Inc., Lehman Brothers
Inc., Greenwich Capital Markets, Inc.
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Junior Co-Managers
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BNY Capital Markets, Inc., Comerica
Securities, Inc., Lazard Capital Markets LLC, Piper Jaffray & Co., SG Americas
Securities, LLC, UBS Securities LLC
|
Atmos Energy Corporation has filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the issuer has filed with the SEC for
more complete information about Atmos Energy Corporation and this offering. You may get these
documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, any
underwriter or any dealer participating in the offering will arrange to send you the prospectus if
you request it by calling Merrill Lynch, Pierce, Fenner & Smith Incorporated at 1-866-500-5408,
SunTrust Capital Markets, Inc. at 1-800-685-4786 or Wachovia Capital Markets, LLC at
1-866-289-1262.
2
EXHIBIT B-1
FORM OF OPINIONS AND LETTER OF ISSUERS COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 7(b)
1. The Company is a validly existing corporation in good standing under the laws of the State
of Texas.
2. The Company has the requisite corporate power and authority to conduct its business as
described in the Prospectus and to execute and deliver the Underwriting Agreement and to perform
its obligations thereunder.
3. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
4. The Indenture has been duly authorized, executed and delivered by the Company and
constitutes a valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms. The Section 301 Officers Certificate has been duly authorized,
executed and delivered by the Company.
5. The authentication and delivery of the Securities by the Trustee are authorized and
permitted by the Indenture.
6. The Securities are in the form contemplated by the Indenture, have been duly authorized,
executed and delivered by the Company and, when authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of the
Underwriting Agreement, will be valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms and will be entitled to the benefits of the Indenture.
7. Insofar as the statements in the most recent Preliminary Prospectus and the Prospectus
under the caption Description of Debt Securities and Description of the Notes constitute a
summary of the documents referred to therein, such statements present in all material respects an
accurate summary of such documents.
8. The execution and delivery of the Underwriting Agreement, the Indenture and the Securities,
the issuance and sale of the Securities to the Underwriters and the delivery of the Securities
pursuant to the Underwriting Agreement do not and will not require any filing with or approval of
any governmental authority or regulatory body of the States of Texas or New York or the United
States of America under any law or regulation currently in effect in the States of Texas or New
York or the United States of America that, in our experience, is generally applicable to the
transactions in the nature of those contemplated by the Underwriting Agreement, except for such
filings or approvals as have already been made or obtained under the Securities Act or as may be
required under state securities or blue sky laws or with respect to regulatory matters, as to which
we do not express any opinion. Other than as expressly set forth
B-1-1
in this paragraph, we do not express any opinion in this paragraph regarding federal or state
securities laws.
9. The execution and delivery of the Underwriting Agreement, the Indenture and the Securities,
the issuance and sale of the Securities to the Underwriters and the delivery of the Securities
pursuant to the Underwriting Agreement (i) do not and will not breach the terms of any document
filed or incorporated by reference as an exhibit to the Registration Statement or incorporated by
reference therein (
Material Contracts
), (ii) do not and will not violate the charter or bylaws of
the Company and (iii) do not and will not breach the terms of any outstanding order, judgment or
decree of any court or other agency of the government identified to us in a certificate (attached
hereto) of the Company as constituting all orders, judgments or decrees binding on the Company
based solely on our review of such orders, judgments or decrees (other than orders, judgments or
decrees with respect to regulatory matters, as to which we do not express any opinion).
10. The execution and delivery of the Underwriting Agreement, the Indenture and the
Securities, the issuance and sale of the Securities to the Underwriters and the delivery of the
Securities pursuant to the Underwriting Agreement do not and will not violate any law or regulation
of the States of Texas or New York or the United States of America applicable to the Company that,
in our experience, is generally applicable to transactions in the nature of those contemplated by
the Underwriting Agreement. We are expressing no opinion in this paragraph on federal or state
securities laws.
11. The Company is not an investment company that is required to be registered under the
Investment Company Act of 1940, as amended (the
Investment Company Act
). For purposes of this
paragraph, the term investment company has the meanings ascribed to such term in the Investment
Company Act.
12. The Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended.
13. To the extent that the statements in the Prospectus under Material U.S. Federal Income
Tax Considerations purport to describe specific provisions of the Internal Revenue Code of 1986,
as amended, such statements present in all material respects an accurate summary of such
provisions.
We have participated in conferences with officers and other representatives and internal
counsel of the Company, representatives of the independent auditors of the Company, and your
representative and counsel at which the contents of the Registration Statement, the Pricing
Disclosure Package and the Prospectus and related matters were discussed. Because the purpose of
our professional engagement was not to establish or confirm factual matters and because the scope
of our examination of the affairs of the Company did not permit us to verify the accuracy,
completeness or fairness of the statements set forth in the Registration Statement, the Pricing
Disclosure Package or the Prospectus, we are not passing upon and do not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the Registration
Statement, the Pricing Disclosure Package or the Prospectus except insofar as such statements
specifically relate to us and except to the extent addressed in paragraphs 7 and 13 of
B-1-2
our opinion letter to you of even date. Our identification of information as being part of
the Pricing Disclosure Package is for the limited purpose of making the statements set forth in
this letter. We express no opinion or belief as to the conveyance of the Pricing Disclosure
Package or the Prospectus or the information contained therein to investors generally or to any
particular investor at any particular time or in any particular manner.
On the basis of the foregoing, and except for the financial statements (and related notes
thereto) and schedules, statistical information that is found or derived from the internal
accounting or financial records of the Company, information of an accounting or financial nature
included or incorporated by reference therein, as to which we express no opinion or belief, no
facts have come to our attention that led us to believe: (a) that the Registration Statement, at
the time it became effective (which shall have the meaning set forth in Rule 158(c) of the Rules
and Regulations) or the Prospectus, as of its date, were not appropriately responsive in all
material respects to the requirements of the Securities Act and the Rules and Regulations; or
(b)(i) that the Registration Statement, at the time it became effective, contained a 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, (ii) that the Pricing Disclosure Package,
as of the Applicable Time, contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or (iii) that the Prospectus, as of its
date or the date hereof, contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
* * *
In rendering such opinion, such counsel may state that its opinion is limited to the Federal
laws of the United States and the laws of the State of Texas and the State of New York.
B-1-3
EXHIBIT B-2
FORM OF OPINION OF VIRGINIA COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO
SECTION 7(c)
1. The Company is validly existing as a corporation in good standing under the laws of the
Commonwealth of Virginia.
2. The Company has corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the most recent Preliminary Prospectus and the Prospectus
and to enter into and perform its obligations under the Underwriting Agreement.
3. Each of the Indenture and the Section 301 Officers Certificate has been duly authorized,
executed and delivered by the Company.
4. The Securities have been duly authorized, executed and delivered by the Company.
Such counsel is aware that this opinion will be relied upon by U.S. Bank National
Association, as Trustee under, and in connection with the transactions contemplated by the
Indenture.
* * *
In rendering such opinion, such counsel may state that its opinion is limited to the Federal
laws of the United States and the laws of the Commonwealth of Virginia.
B-2-1
EXHIBIT B-3
FORM OF OPINIONS AND LETTER OF GENERAL COUNSEL OF THE COMPANY
TO BE DELIVERED PURSUANT TO
SECTION 7(d)
1. The Company has been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Texas and the Commonwealth of Virginia.
2. The Company has corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus and to enter into and perform its
obligations under the Underwriting Agreement.
3. The Company is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse Effect.
4. The information in the Registration Statement under Item 15, to the extent that it
constitutes matters of law, summaries of legal matters or legal conclusions, has been reviewed by
me and is correct in all material respects.
5. The authorized, issued and outstanding capital stock of the Company is as set forth in the
Prospectus under the caption Capitalization (except for subsequent issuances, if any, pursuant to
reservations, agreements or employee benefit plans referred to in the Prospectus or pursuant to the
exercise of options or share unit awards referred to in the Prospectus); the shares of issued and
outstanding capital stock of the Company have been duly authorized and validly issued and are fully
paid and non-assessable; and none of the outstanding shares of capital stock of the Company was
issued in violation of the preemptive or other similar rights of any securityholder of the Company.
6. Each Subsidiary has been duly organized and is validly existing as an entity in good
standing under the laws of the jurisdiction of its formation, has the power and authority to own,
lease and operate its properties and to conduct its business as described in the Prospectus and is
duly qualified as a foreign entity to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect; except as otherwise disclosed in the most
recent Preliminary Prospectus and the Prospectus, all of the issued and outstanding capital stock
or limited liability company membership interests, as the case may be, of each Subsidiary have been
duly authorized and validly issued, are fully paid and non-assessable and, to the best of my
knowledge, are owned by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for such liens,
encumbrances, equities or claims as would not in the aggregate reasonably be expected to have a
Material Adverse Effect; none of the outstanding shares of capital stock or limited liability
company membership interests, as the case may be, of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such Subsidiary.
B-3-1
7. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
8. The Indenture has been duly authorized, executed and delivered by the Company. The Section
301 Officers Certificate has been duly authorized, executed and delivered by the Company.
9. The documents incorporated by reference in the Registration Statement, the most recent
Preliminary Prospectus and the Prospectus (other than financial statements and schedules and other
information of an accounting or financial nature included or incorporated by reference therein, as
to which I express no opinion or belief), when they were filed with the Commission, complied as to
form in all material respects with the requirements of the Exchange Act and the rules and
regulations under the Exchange Act.
10. To the best of my knowledge, there is no pending or threatened action, suit, proceeding,
inquiry or investigation, to which the Company or any subsidiary is a party, or to which the
property of the Company or any subsidiary is subject, before or brought by any court or
governmental agency or body, domestic or foreign, which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to affect the properties or assets
thereof, except what does not result in a Material Adverse Effect, or the consummation of the
transactions contemplated in the Underwriting Agreement or the performance by the Company of its
obligations thereunder or which is required to be described in the Prospectus that is not described
as required.
11. The information in (a) the most recent Preliminary Prospectus and the Prospectus under
Prospectus Supplement Summary Atmos Energy Corporation Recent Developments Mid-Tex Division
Rate Case Decision or Business Regulation or Description of the Notes, (b) the Annual Report
on Form 10-K (the 10-K) under Item 1. Business Ratemaking Activity, under Item 1.
Business Other Regulation or under Item 3. Legal Proceedings, (c) the Quarterly Report on
Form 10-Q for the quarterly period ended March 31, 2007 (the 10-Q) under Part II Item 1.
Legal Proceedings, or (d) Note 13. Commitments and Contingencies to the Companys
consolidated financial statements included in the 10-K or Note 8. Commitments and
Contingencies to the Companys consolidated financial statements included in the 10-Q, to the
extent that it constitutes matters of law, summaries of legal matters, the Companys articles of
incorporation and bylaws or legal proceedings, or legal conclusions, has been reviewed by me and is
correct in all material respects.
12. All descriptions in the Registration Statement, the most recent Preliminary Prospectus and
the Prospectus of contracts and other documents to which the Company or its subsidiaries are a
party are accurate in all material respects; to the best of my knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to
be described or referred to in the Registration Statement, the most recent Preliminary Prospectus
or the Prospectus or to be filed as exhibits thereto other than those described or referred to
therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or
references thereto are correct in all material respects.
B-3-2
13. To the best of my knowledge, neither the Company nor any subsidiary is in violation of (i)
its charter, bylaws or other organizational document and (ii) no default by the Company or any
subsidiary exists in the due performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease
or other agreement or instrument that is described or referred to in the Registration Statement,
the most recent Preliminary Prospectus or the Prospectus or filed or incorporated by reference as
an exhibit to the Registration Statement, except with respect to (ii) above for such defaults that
would not result in a Material Adverse Effect.
14. There have been issued and, as of the date hereof, are in full force and effect orders or
authorizations of the regulatory authorities of Colorado, Georgia, Illinois, Kentucky and Virginia,
respectively, authorizing the issuance and sale of the Securities by the Company on the terms set
forth or contemplated in the Underwriting Agreement; and no other filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other than under the Securities Act and the
Rules and Regulations, which have been obtained, or as may be required under the securities or blue
sky laws of the various states, as to which I express no opinion), is necessary or required in
connection with the due authorization, execution and delivery of the Underwriting Agreement, or for
the offering, issuance, sale or delivery of the Securities by the Company pursuant to the
Underwriting Agreement.
15. The execution, delivery and performance of the Underwriting Agreement, the Indenture and
the Securities by the Company and the consummation of the transactions contemplated in the
Underwriting Agreement and the Indenture and in the Registration Statement, the most recent
Preliminary Prospectus and the Prospectus (including the issuance and sale of the Securities by the
Company and the use of the proceeds from the sale of the Securities as described in the Prospectus
under the caption Use of Proceeds) and compliance by the Company with its obligations under the
Underwriting Agreement, the Indenture and the Securities do not and will not, whether with or
without the giving of notice or lapse of time or both, violate or constitute a breach of, or
default under, or result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any subsidiary pursuant to, any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or any other agreement or instrument, known to
me, to which the Company or any subsidiary is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company or any subsidiary is subject (except for
such violations, breaches or defaults or liens, charges or encumbrances that would not have a
Material Adverse Effect), nor will such action result in any violation of the provisions of the
articles of incorporation or bylaws of the Company or the charter, bylaws or other organizational
documents of any subsidiary, or any applicable law, statute, rule, regulation, judgment, order,
writ or decree, known to me, of any government, government instrumentality or court, domestic or
foreign, binding on the Company or any subsidiary or any of their respective properties, assets or
operations. I express no opinion in this paragraph regarding federal or state securities laws.
Except for the financial statements and related notes and schedules and other information of
an accounting or financial nature included or incorporated by reference therein, as to which I
express no opinion or belief, no facts have come to my attention that led me to believe: (a) that
the Registration Statement, at the time it became effective (which shall have the meaning set
B-3-3
forth in Rule 158(c) of the Rules and Regulations) or the Prospectus, as of its date, were not
appropriately responsive in all material respects to the requirements of the Securities Act and the
Rules and Regulations; or (b)(i) that the Registration Statement, at the time it became effective,
contained a 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, (ii) that the Pricing
Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; or (iii) that the Prospectus, as
of its date or the date hereof, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
Such counsel is aware that this opinion will be relied upon by U.S. Bank National Association,
as Trustee under, and in connection with the transactions contemplated by the Indenture.
* * *
In rendering such opinion, such counsel may state that his opinion is limited to the Federal
laws of the United States, the laws of the State of Texas and the Virginia Stock Corporation Act.
B-3-4
Exhibit 4.1
EXECUTION COPY
ATMOS ENERGY CORPORATION,
Issuer,
to
U.S. BANK NATIONAL ASSOCIATION,
Trustee
Indenture
Dated as of June 14, 2007
Debt Securities
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of June 14, 2007
|
|
|
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Trust Indenture
|
|
|
Act Section
|
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Indenture Section
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|
|
|
|
§ 310
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(a)(1)
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608
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|
(a)(2)
|
|
608
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(b)
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604, 607, 609(d)(1)
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§ 311
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(a)
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101(2), 604, 613
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(b)
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101(2), 604, 613
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§ 312
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(c)
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701
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§ 313
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702
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§ 314
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(a)
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703
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(a)(4)
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1004
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(c)(1)
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102
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(c)(2)
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102
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(e)
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101 (Opinion of Counsel), 102
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§ 315
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(b)
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601
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§ 316
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(a)(last
sentence)
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101 (Outstanding)
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(a)(1)(A)
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512
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(a)(1)(B)
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513
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(b)
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508
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(c)
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104(d)
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§ 317
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(a)(1)
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503
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(a)(2)
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504
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(b)
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1003
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§ 318
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(a)
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107
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TABLE OF CONTENTS
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Page
|
ARTICLE ONE
|
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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SECTION 101.Definitions
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9
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Act
|
|
10
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Additional Amounts
|
|
10
|
Affiliate
|
|
10
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Attributable Debt
|
|
10
|
Authenticating Agent
|
|
10
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Authorized Newspaper
|
|
10
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Authorized Officer
|
|
10
|
Bankruptcy Law
|
|
11
|
Board of Directors
|
|
11
|
Board Resolution
|
|
11
|
Book-Entry Security
|
|
11
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Business Day
|
|
11
|
Capital Stock
|
|
11
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Commission
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|
11
|
Company
|
|
11
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Company Request or Company Order
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|
11
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Consolidated Net Tangible Assets
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|
11
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Corporate Trust Office
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|
12
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corporation
|
|
12
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covenant defeasance
|
|
12
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Custodian
|
|
12
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Default
|
|
12
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Defaulted Interest
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|
12
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defeasance
|
|
12
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Definitive Security
|
|
12
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Depository
|
|
12
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Euroclear
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|
12
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Event of Default
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|
12
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Exchange Act
|
|
12
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Extension Notice and Extension Period
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|
12
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Final Maturity
|
|
12
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Funded Indebtedness
|
|
12
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generally accepted accounting principles or GAAP
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|
12
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Global Securities
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|
12
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Government Obligations
|
|
13
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guarantee
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|
13
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Holder
|
|
13
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incorporated provision
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|
13
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3
|
|
|
Indebtedness
|
|
13
|
Indenture
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|
13
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Indexed Security
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|
14
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interest
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|
14
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Interest Payment Date
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|
14
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Lien
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14
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mandatory sinking fund payment
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|
14
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Maturity
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|
14
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Non-Recourse Indebtedness
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|
14
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Officers Certificate
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|
15
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Opinion of Counsel
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|
15
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Option to Elect Repayment
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|
15
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Optional Reset Date
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15
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optional sinking fund payment
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|
15
|
Original Issue Discount Security
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|
15
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Original Stated Maturity
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|
15
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Outstanding
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|
15
|
Participants
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|
16
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Paying Agent
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|
16
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Person
|
|
16
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Place of Payment
|
|
16
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Predecessor Security
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|
16
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Principal Property
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|
17
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Redemption Date
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|
17
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Redemption Price
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|
17
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Regular Record Date
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|
17
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Repayment Date
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|
17
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Repayment Price
|
|
17
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Reset Notice
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|
17
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Restricted Securities
|
|
17
|
Restricted Subsidiary
|
|
17
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Sale and Leaseback Transaction
|
|
17
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Securities
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|
17
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Security Register and Security Registrar
|
|
18
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Special Record Date
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|
18
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Stated Maturity
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|
18
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Subsequent Interest Period
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18
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Subsidiary
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18
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Trust Indenture Act or TIA
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|
18
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Trustee
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18
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Trustee Payments
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|
18
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United Cities Indenture
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18
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United States
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|
19
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United States person
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|
19
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Vice President
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19
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Yield to Maturity
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|
19
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4
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|
|
|
|
|
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SECTION 102.
|
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Compliance Certificates and Opinions
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|
|
19
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SECTION 103.
|
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Form of Documents Delivered to Trustee
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|
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20
|
|
SECTION 104.
|
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Acts of Holders
|
|
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20
|
|
SECTION 105.
|
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Notices, etc. to Trustee and Company
|
|
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21
|
|
SECTION 106.
|
|
Notice to Holders; Waiver
|
|
|
21
|
|
SECTION 107.
|
|
Conflict of Any Provision of Indenture with Trust Indenture Act
|
|
|
22
|
|
SECTION 108.
|
|
Effect of Headings and Table of Contents
|
|
|
22
|
|
SECTION 109.
|
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Successors and Assigns
|
|
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22
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SECTION 110.
|
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Separability Clause
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|
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22
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|
SECTION 111.
|
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Benefits of Indenture
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|
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23
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SECTION 112.
|
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Governing Law
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|
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23
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SECTION 113.
|
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Legal Holidays
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23
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SECTION 114.
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No Recourse Against Others
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23
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ARTICLE TWO
|
SECURITY FORMS
|
SECTION 201.
|
|
Forms Generally
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|
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23
|
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SECTION 202.
|
|
Form of Trustees Certificate of Authentication
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|
|
24
|
|
SECTION 203.
|
|
Securities Issuable in Global Form
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|
|
24
|
|
SECTION 204.
|
|
Form of Legend for Book-Entry Securities
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|
|
25
|
|
ARTICLE THREE
|
THE SECURITIES
|
SECTION 301.
|
|
Amount Unlimited; Issuable in Series
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|
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25
|
|
SECTION 302.
|
|
Denominations
|
|
|
28
|
|
SECTION 303.
|
|
Execution, Authentication, Delivery and Dating
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|
|
28
|
|
SECTION 304.
|
|
Book-Entry Securities
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|
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30
|
|
SECTION 305.
|
|
Temporary Securities
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|
|
31
|
|
SECTION 306.
|
|
Registration, Registration of Transfer and Exchange
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|
|
32
|
|
SECTION 307.
|
|
Mutilated, Destroyed, Lost and Stolen Securities
|
|
|
33
|
|
SECTION 308.
|
|
Payment of Interest; Interest Rights Preserved; Optional
Interest Reset
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|
|
34
|
|
SECTION 309.
|
|
Optional Extension of Stated Maturity
|
|
|
36
|
|
SECTION 310.
|
|
Persons Deemed Owners
|
|
|
37
|
|
SECTION 311.
|
|
Cancellation
|
|
|
38
|
|
SECTION 312.
|
|
Computation of Interest
|
|
|
38
|
|
SECTION 313.
|
|
CUSIP Numbers
|
|
|
38
|
|
5
|
|
|
|
|
|
|
ARTICLE FOUR
|
SATISFACTION AND DISCHARGE
|
SECTION 401.
|
|
Satisfaction and Discharge of Indenture
|
|
|
39
|
|
SECTION 402.
|
|
Application of Trust Money
|
|
|
40
|
|
ARTICLE FIVE
|
REMEDIES
|
SECTION 501.
|
|
Events of Default
|
|
|
40
|
|
SECTION 502.
|
|
Acceleration of Maturity; Rescission and Annulment
|
|
|
41
|
|
SECTION 503.
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
42
|
|
SECTION 504.
|
|
Trustee May File Proofs of Claim
|
|
|
43
|
|
SECTION 505.
|
|
Trustee May Enforce Claims Without Possession of Securities
|
|
|
43
|
|
SECTION 506.
|
|
Application of Money Collected
|
|
|
44
|
|
SECTION 507.
|
|
Limitation on Suits
|
|
|
44
|
|
SECTION 508.
|
|
Unconditional Right of Holders to Receive Principal, Premium
and Interest
|
|
|
45
|
|
SECTION 509.
|
|
Restoration of Rights and Remedies
|
|
|
45
|
|
SECTION 510.
|
|
Rights and Remedies Cumulative
|
|
|
45
|
|
SECTION 511.
|
|
Delay or Omission Not Waiver
|
|
|
45
|
|
SECTION 512.
|
|
Control by Holders
|
|
|
45
|
|
SECTION 513.
|
|
Waiver of Past Defaults
|
|
|
46
|
|
SECTION 514.
|
|
Undertaking for Costs
|
|
|
46
|
|
SECTION 515.
|
|
Waiver of Stay or Extension Laws
|
|
|
47
|
|
ARTICLE SIX
|
THE TRUSTEE
|
SECTION 601.
|
|
Notice of Defaults
|
|
|
47
|
|
SECTION 602.
|
|
Certain Rights of Trustee
|
|
|
47
|
|
SECTION 603.
|
|
Trustee Not Responsible for Recitals or Issuance of Securities
|
|
|
49
|
|
SECTION 604.
|
|
May Hold Securities
|
|
|
50
|
|
SECTION 605.
|
|
Money Held in Trust
|
|
|
50
|
|
SECTION 606.
|
|
Compensation and Reimbursement
|
|
|
50
|
|
SECTION 607.
|
|
Conflicting Interests
|
|
|
51
|
|
SECTION 608.
|
|
Corporate Trustee Required; Eligibility; Conflicting Interests
|
|
|
51
|
|
SECTION 609.
|
|
Resignation and Removal; Appointment of Successor
|
|
|
51
|
|
SECTION 610.
|
|
Acceptance of Appointment by Successor
|
|
|
52
|
|
SECTION 611.
|
|
Merger, Conversion, Consolidation or Succession to Business
|
|
|
54
|
|
SECTION 612.
|
|
Appointment of Authenticating Agent
|
|
|
54
|
|
SECTION 613.
|
|
Preferential Collection of Claims Against Company
|
|
|
56
|
|
6
|
|
|
|
|
|
|
ARTICLE SEVEN
|
HOLDERS
LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
SECTION 701.
|
|
Disclosure of Names and Addresses of Holders
|
|
|
56
|
|
SECTION 702.
|
|
Reports by Trustee
|
|
|
56
|
|
SECTION 703.
|
|
Reports by Company
|
|
|
56
|
|
ARTICLE EIGHT
|
CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE
|
SECTION 801.
|
|
Company May Consolidate, Etc., Only on Certain Terms
|
|
|
57
|
|
SECTION 802.
|
|
Rights and Duties of Successor Corporation
|
|
|
57
|
|
SECTION 803.
|
|
Securities to be Secured in Certain Events
|
|
|
58
|
|
ARTICLE NINE
|
SUPPLEMENTAL
INDENTURES
|
SECTION 901.
|
|
Supplemental Indentures Without Consent of Holders
|
|
|
58
|
|
SECTION 902.
|
|
Supplemental Indentures with Consent of Holders
|
|
|
60
|
|
SECTION 903.
|
|
Execution of Supplemental Indentures
|
|
|
61
|
|
SECTION 904.
|
|
Effect of Supplemental Indentures
|
|
|
61
|
|
SECTION 905.
|
|
Conformity with Trust Indenture Act
|
|
|
61
|
|
SECTION 906.
|
|
Reference in Securities to Supplemental Indentures
|
|
|
61
|
|
SECTION 907.
|
|
Notice of Supplemental Indentures
|
|
|
61
|
|
ARTICLE TEN
|
COVENANTS
|
SECTION 1001.
|
|
Payment of Principal, Premium and Interest
|
|
|
62
|
|
SECTION 1002.
|
|
Maintenance of Office or Agency
|
|
|
62
|
|
SECTION 1003.
|
|
Money for Security Payments to Be Held in Trust
|
|
|
62
|
|
SECTION 1004.
|
|
Statement as to Compliance
|
|
|
64
|
|
SECTION 1005.
|
|
Corporate Existence
|
|
|
64
|
|
SECTION 1006.
|
|
Limitations on Liens
|
|
|
64
|
|
SECTION 1007.
|
|
Limitation on Sale and Leaseback Transactions
|
|
|
66
|
|
SECTION 1008.
|
|
Additional Amounts
|
|
|
66
|
|
SECTION 1009.
|
|
Waiver of Certain Covenants
|
|
|
67
|
|
ARTICLE ELEVEN
|
REDEMPTION OF SECURITIES
|
SECTION 1101.
|
|
Applicability of Article
|
|
|
67
|
|
SECTION 1102.
|
|
Election to Redeem; Notice to Trustee
|
|
|
67
|
|
SECTION 1103.
|
|
Selection by Trustee of Securities to Be Redeemed
|
|
|
68
|
|
SECTION 1104.
|
|
Notice of Redemption
|
|
|
68
|
|
SECTION 1105.
|
|
Deposit of Redemption Price
|
|
|
69
|
|
SECTION 1106.
|
|
Securities Payable on Redemption Date
|
|
|
69
|
|
7
|
|
|
|
|
|
|
SECTION 1107.
|
|
Securities Redeemed in Part
|
|
|
69
|
|
|
|
|
|
|
|
|
ARTICLE TWELVE
|
SINKING FUNDS
|
SECTION 1201.
|
|
Applicability of Article
|
|
|
70
|
|
SECTION 1202.
|
|
Satisfaction of Sinking Fund Payments with Securities
|
|
|
70
|
|
SECTION 1203.
|
|
Redemption of Securities for Sinking Fund
|
|
|
70
|
|
|
|
|
|
|
|
|
ARTICLE THIRTEEN
|
REPAYMENT AT OPTION OF HOLDERS
|
SECTION 1301.
|
|
Applicability of Article
|
|
|
71
|
|
SECTION 1302.
|
|
Repayment of Securities
|
|
|
72
|
|
SECTION 1303.
|
|
Exercise of Option
|
|
|
72
|
|
SECTION 1304.
|
|
When Securities Presented for Repayment Become Due and Payable
|
|
|
72
|
|
SECTION 1305.
|
|
Securities Repaid in Part
|
|
|
73
|
|
|
|
|
|
|
|
|
ARTICLE FOURTEEN
|
DEFEASANCE AND COVENANT DEFEASANCE
|
|
|
|
|
|
|
|
SECTION 1401.
|
|
Companys Option to Effect Defeasance or Covenant Defeasance
|
|
|
73
|
|
SECTION 1402.
|
|
Defeasance and Discharge
|
|
|
73
|
|
SECTION 1403.
|
|
Covenant Defeasance
|
|
|
74
|
|
SECTION 1404.
|
|
Conditions to Defeasance or Covenant Defeasance
|
|
|
74
|
|
SECTION 1405.
|
|
Deposited Money and Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions
|
|
|
76
|
|
SECTION 1406.
|
|
Reinstatement
|
|
|
76
|
|
8
INDENTURE, dated as of June 14, 2007, between Atmos Energy Corporation, a Texas and
Virginia corporation (herein called the Company), and U.S. Bank National Association, a banking
corporation with trust powers organized and existing under the laws of the State of United States,
trustee (herein called the Trustee).
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its senior debt securities (herein called the Securities), to
be issued in one or more series as in this Indenture provided.
This Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended,
that are required to be part of this Indenture and shall, to the extent applicable, be governed by
such provisions.
All things necessary to make this Indenture a valid agreement of the Company, 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 covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
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, and the terms
cash transaction and self-liquidating paper, as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under the Trust Indenture
Act;
(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; and
9
(4) 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.
Certain terms, used principally in Article Three, are defined in that Article.
Act, when used with respect to any Holder, has the meaning specified in Section 104.
Additional Amounts has the meaning specified in Section 1008.
Affiliate means, with respect to any specified Person, 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.
Attributable Debt means, as to any lease under which any Person is at the time liable for rent,
at any date as of which the amount thereof is to be determined, the total net amount of rent
required to be paid by such Person under such lease during the remaining term, excluding amounts
required to be paid on account of maintenance and repairs, services, insurance, taxes, assessments,
water rates and similar charges and contingent rents, discounted from the respective due dates
thereof at the rate of interest (or Yield to Maturity, in the case of Original Issue Discount
Securities) borne by the then Outstanding Securities, compounded monthly.
Authenticating Agent means any Person appointed by the Trustee to act on behalf of the Trustee
pursuant to Section 612 to authenticate Securities.
Authorized Newspaper means a newspaper, in the English language or in an official language of the
country of publication, customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications may be made in the
same or in different newspapers in the same city meeting the foregoing requirements and in each
case on any Business Day.
Authorized Officer, when used with respect to the Trustee, means any vice-president, assistant
vice president, any assistant secretary, any assistant treasurer, any trust officer or assistant
trust officer, the controller and any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above-designated
officers, in each case who is assigned by the Trustee to administer corporate trust matters at its
Corporate Trust Office, and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his knowledge of and familiarity with the
particular subject.
10
Bankruptcy Law means Title 11, U.S. Code or any similar federal or state law for the relief of
debtors.
Board of Directors means the Board of Directors of the Company or any duly authorized committee
of such Board.
Board Resolution means a copy of a resolution certified by the Corporate Secretary or an
Assistant Corporate Secretary of the Company 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.
Book-Entry Security has the meaning specified in Section 304.
Business Day, means any day that, in the city of the principal Corporate Trust Office of the
Trustee and in the City of New York, is neither a Saturday, Sunday, or legal holiday nor a day on
which banking institutions are authorized or required by law or regulation to close.
Capital Stock means any and all shares, interests, rights to purchase, warrants, options,
participations or other equivalents of or interests (however designated) in stock issued by a
corporation.
Commission means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act or, if at any time after the execution of this Indenture 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.
Company means the Person named as the Company 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 Company shall mean such successor Person. To the extent necessary to comply with
the requirements of the provisions of TIA Sections 310 through 317 as they are applicable to the
Company, the term Company shall include any other obligor with respect to the Securities for the
purposes of complying with such provisions.
Company Request or Company Order means a written request or order signed in the name of the
Company (i) by its Chairman, Chief Executive Officer, its President or a Vice President and (ii) by
its Treasurer, an Assistant Treasurer, its Corporate Secretary or an Assistant Corporate Secretary
and delivered to the Trustee;
provided
,
however
, that such written request or order
may be signed by any two of the officers or directors listed in clause (i) above in lieu of being
signed by one of such officers or directors listed in such clause (i) and one of the officers
listed in clause (ii) above.
Consolidated Net Tangible Assets means the aggregate amount of assets (less applicable reserves
and other properly deductible items) after deducting (i) all current liabilities (excluding any
portion thereof constituting Funded Indebtedness) and (ii) all goodwill, trade names, trademarks,
patents, unamortized debt discount and expense and other like intangibles, all as set forth on the
most recent consolidated balance sheet of the Company contained in the latest
11
quarterly or annual
report of the Company filed with the Commission under the Exchange Act and computed in accordance
with generally accepted accounting principles.
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 on the date of execution
of this Indenture is located at U.S. Bank National Association, 60 Livingston Avenue, St.Paul,
Minnesota 55107, Attention: Corporate Trust Department.
corporation includes corporations, associations, partnerships, limited liability companies,
companies and business trusts.
covenant defeasance has the meaning specified in Section 1403 hereof.
Custodian means any receiver, trustee, assignee, liquidator, sequestrator or similar officer
under any Bankruptcy Law.
Default means any event that is, or after notice or passage of time or both would be, an
Event of Default.
Defaulted Interest has the meaning specified in Section 308 hereof.
defeasance has the meaning specified in Section 1402 hereof.
Definitive Security has the meaning specified in Section 304 hereof.
Depository has the meaning specified in Section 304.
Euroclear means Morgan Guaranty Trust Company of New York, Brussels Office, or its successor as
operator of the Euroclear System.
Event of Default has the meaning specified in Section 501.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Extension Notice and Extension Period shall have the meanings specified in Section 309.
Final Maturity has the meaning specified in Section 309.
Funded Indebtedness means as applied to any Person, means all Indebtedness of such Person
maturing after, or renewable or extendable at the option of such Person beyond, 12 months from the
date of determination.
generally accepted accounting principles or GAAP means generally accepted accounting principles
in the United States.
Global Securities means one or more Securities evidencing all or part of the Securities to be
issued as Book-Entry Securities, issued to the Depository in accordance with Section 304 and
bearing the legend prescribed in Section 204.
12
Government Obligations means securities which are (i) direct obligations of the United States
government or (ii) obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States government, the payment of which is unconditionally guaranteed
by the United States government, which, in either case, are full faith and credit obligations of
the United States government payable and are not callable or redeemable at the option of the issuer
thereof and shall also include a depository receipt issued by a bank or trust company as custodian
with respect to any such Government Obligation or a specific payment of interest on or principal of
any such Government Obligation held by such custodian for the account of the holder of a depository
receipt;
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 depository receipt from any amount
received by the custodian in respect of the Government Obligation or the specific payment of
interest or principal of the Government Obligation evidenced by such depository receipt.
guarantee means, as applied to any obligation, (i) a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business), direct or indirect, in
any manner, of any part or all of such obligation or (ii) an agreement, direct or indirect,
contingent or otherwise, providing assurance of the payment or performance (or payment of damages
in the event of non-performance) of any part or all of such obligation, including, without limiting
the foregoing, the payment of amounts drawn down by letters of credit. Notwithstanding anything
herein to the contrary, a guarantee shall not include any agreement solely because such agreement
creates a Lien on the assets of any Person. The amount of a guarantee shall be deemed to be the
maximum amount of the obligation guaranteed for which the guarantor could be held liable under such
guarantee.
Holder means the Person in whose name a Security is registered in the Security Register.
incorporated provision has the meaning specified in Section 107.
Indebtedness means obligations for money borrowed, evidenced by notes, bonds, debentures or other
similar evidences of indebtedness.
Indenture means this instrument as originally executed (including all exhibits and schedules
hereto) 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, and shall include
the terms of particular series of Securities established as contemplated by Section 301;
provided
,
however
, that, if at any time there is more than one series of Securities
issued under this instrument, Indenture shall mean, with respect to each such series of
Securities, this instrument as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant to the provisions
hereof applicable to such series and shall include the terms of such series of Securities
established as contemplated by Section 301,
exclusive
,
however
, of any provisions
or terms which do not relate to such series, regardless of when such provisions or terms were
adopted.
13
Indexed Security means a Security the terms of which provide that the principal amount thereof
payable at Stated Maturity may be more or less than the principal face amount thereof at original
issuance.
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 at the rate prescribed in such
Original Issue Discount Security.
Interest Payment Date, when used with respect to any series of Securities, means the Stated
Maturity of an installment of interest on such Securities.
Lien means any lien, mortgage, pledge, encumbrance, charge or security interest securing
Indebtedness;
provided
,
however
, that the following types of transactions will not
be considered, for purposes of this definition, to result in a Lien: (i) any acquisition by the
Company or any Restricted Subsidiary of any property or assets subject to any reservation or
exception under the terms of which any vendor, lessor or assignor creates, reserves or excepts or
has created, reserved or excepted an interest in oil, gas or any other mineral in place or the
proceeds thereof, (ii) any conveyance or assignment whereby the Company or any Restricted
Subsidiary conveys or assigns to any Person or Persons an interest in oil, gas or any other mineral
in place or the proceeds thereof, (iii) any Lien upon any property or assets either owned or leased
by the Company or any Restricted Subsidiary or in which the Company or any Restricted Subsidiary
owns an interest that secures for the benefit of the Person or Persons paying the expenses of
developing or conducting operations for the recovery, storage, transportation or sale of the
mineral resources of such property or assets (or property or assets with which it is unitized) the
payment to such Person or Persons of the Companys or the Restricted Subsidiarys proportionate
part of such development or operating expenses, (iv) any lease classified as an
operating lease under generally accepted accounting principles, (v) any hedging arrangements
entered into in the ordinary course of business, including any obligation to deliver any mineral,
commodity or asset in connection therewith or (v) any guarantees by the Company of the repayment of
Indebtedness of any Subsidiary or guarantees by any Subsidiary of the repayment of Indebtedness of
any entity, including, but not limited to, Indebtedness of Atmos Energy Marketing, L.L.C.
mandatory sinking fund payment shall have the meaning specified in Section 1201.
Maturity, when used with respect to any Security, means the date on which the principal of such
Security becomes due and payable as therein or herein provided whether at the Stated Maturity, by
declaration of acceleration, notice of redemption, notice of option to elect repayment or
otherwise.
Non-Recourse Indebtedness means, at any time, Indebtedness incurred after the date of the
Indenture by the Company or a Restricted Subsidiary in connection with the acquisition of property
or assets by the Company or a Restricted Subsidiary or the financing of the construction of or
improvements on property, whenever acquired,
provided
that, under the terms of such
Indebtedness and under applicable law, the recourse at such time and thereafter of the lenders with
respect to such Indebtedness is limited to the property or assets so acquired, or
14
the construction
or improvements, including Indebtedness as to which a performance or completion guarantee or
similar undertaking was initially applicable to the Indebtedness or the related property or assets
if the guarantee or similar undertaking has been satisfied and is no longer in effect.
Indebtedness which is otherwise Non-Recourse Indebtedness will not lose its character as
Non-Recourse Indebtedness because there is recourse to the Company, any Subsidiary of the Company
or any other person for (a) environmental representations, warranties or indemnities, or (b)
indemnities for and liabilities arising from fraud, misrepresentation, misapplication or
non-payment of rents, profits, insurance and condemnation proceeds and other sums actually received
from secured assets to be paid to the lender, waste and mechanics liens or similar matters.
Officers Certificate means a certificate signed by (i) the Chairman, Chief Executive Officer,
the President, a Vice President or the Treasurer of the Company and (ii) the Corporate Secretary or
an Assistant Corporate Secretary of the Company and delivered to the Trustee;
provided
,
however
, that such certificate may be signed by two of the officers or directors listed in
clause (i) above in lieu of being signed by one of such officers or directors listed in such clause
(i) and one of the officers listed in clause (ii) above.
Opinion of Counsel means a written opinion of counsel, who may be counsel for the Company, and who shall be
acceptable to the Trustee. Each such opinion shall include the statements provided for in TIA
Section 314(e) to the extent applicable.
Option to Elect Repayment shall have the meaning specified in Section 1303.
Optional Reset Date shall have the meaning specified in Section 308.
optional sinking fund payment shall have the meaning specified in Section 1201.
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.
Original Stated Maturity shall have the meaning specified in Section 309.
Outstanding when used with respect to Securities means, as of the date of determination, all
Securities theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(ii) Securities, or portions thereof, for whose payment, purchase, redemption or
repayment at the option of the Holder money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company 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;
15
(iii) Securities, except to the extent provided in Sections 1402 and 1403, with respect
to which the Company has effected defeasance and/or covenant defeasance as provided in
Article Fourteen; and
(iv) Securities paid pursuant to Section 307 or Securities 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 Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the Company;
provided
,
however
, that, in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand, direction, consent or
waiver hereunder, and for the purpose of making the calculations required by TIA Section 316, (i)
the principal amount of an Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such purpose shall be
equal to the amount of principal thereof that would be (or shall have been declared to be) due and
payable, at the time of such determination, upon a declaration of acceleration of the maturity
thereof pursuant to Section 502, (ii) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed outstanding for such
purpose shall be equal to the principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Security pursuant to Section 301, and (iii)
Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such calculation or in
relying upon any such request, demand, authorization, direction, notice, consent or waiver, only
Securities which an Authorized Officer of 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 pledgees right so to
act with respect to such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor.
Participants has the meaning specified in Section 304.
Paying Agent means any Person (including the Company acting as Paying Agent) authorized by the
Company to pay the principal of (or premium, if any) or interest, if any, on any Securities on
behalf of the Company.
Person means any individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
Place of Payment means, when used with respect to the Securities of or within any series, the
place or places where the principal of (and premium, if any) and interest, if any, on such
Securities are payable as specified as contemplated by Sections 301 and 1002.
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,
16
for the purposes of this definition,
any Security authenticated and delivered under Section 307 in exchange for a mutilated Security or
in lieu of a destroyed, lost or stolen Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
Principal Property means any natural gas distribution property located in the United States,
except any property that in the opinion of the Board of Directors of the Company is not of material
importance to the total business conducted by the Company and its consolidated Subsidiaries.
Redemption Date, when used with respect to any Security to be redeemed, in whole or in part,
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 or
within any series means the date specified for that purpose as contemplated by Section 301.
Repayment Date means, when used with respect to any Security to be repaid at the option of the
Holder, the date fixed for such repayment pursuant to this Indenture.
Repayment Price means, when used with respect to any Security to be repaid at the option of the
Holder, the price at which it is to be repaid pursuant to this Indenture.
Reset Notice shall have the meaning specified in Section 308.
Restricted Securities has the meaning specified in Section 1006.
Restricted Subsidiary means any Subsidiary the amount of Consolidated Net Tangible Assets of which constitutes more
than 10% of the aggregate amount of Consolidated Net Tangible Assets of the Company and its
Subsidiaries.
Sale and Leaseback Transaction means any arrangement with any Person in which the Company or any
Restricted Subsidiary leases any Principal Property that has been or is to be sold or transferred
by the Company or the Restricted Subsidiary to such Person, other than any such arrangement
involving (i) a lease for a term, including renewals at the option of the lessee, of not more than
three years or classified as an operating lease under generally accepted accounting principles,
(ii) leases between the Company and a Restricted Subsidiary or between Restricted Subsidiaries and
(iii) leases of a Principal Property executed by the time of, or within 12 months after the latest
of, the acquisition, the completion of construction or improvement, or the commencement of
commercial operation, of the Principal Property.
Securities has the meaning stated in the first recital of this Indenture and more particularly
means any Securities authenticated and delivered under this Indenture;
provided
,
however
, that if at any time there is more than one series of Securities, Securities with
respect to the Indenture for such series shall mean the Securities authenticated and delivered
under such
17
Indenture for such series,
exclusive
,
however
, of the Securities of any
series authenticated and delivered under any other Indenture.
Security Register and Security Registrar have the respective meanings specified in Section 306.
Special Record Date means a date fixed by the Trustee for the payment of any Defaulted Interest
pursuant to Section 308.
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 representing such installment of
principal or interest as the fixed date on which the principal of such Security or such installment
of principal or interest is due and payable, as such date may be extended pursuant to the
provisions of Section 309.
Subsequent Interest Period shall have the meaning specified in Section 308.
Subsidiary of the Company means (i) a corporation, a majority of whose Capital Stock with rights, under
ordinary circumstances, to elect directors is owned, directly or indirectly, at the date of
determination, by the Company, by one or more Subsidiaries or by the Company and one or more
Subsidiaries or (ii) any other Person (other than a corporation) in which at the date of
determination the Company, one or more Subsidiaries or the Company and one or more Subsidiaries,
directly or indirectly, has at least a majority ownership and power to direct the policies,
management and affairs of that Person.
Trust Indenture Act or TIA means the Trust Indenture Act of 1939, as amended, and as in force
at the date as of which this Indenture was executed, except as provided in Section 905.
Trustee means the Person named as the Trustee in the first paragraph of this Indenture 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;
provided
,
however
, that if at any time there is more than one such Person,
Trustee as used with respect to the Securities of any series shall mean only the Trustee with
respect to Securities of that series.
Trustee Payments shall have the meaning specified in Section 610.
United Cities Indenture means that certain Indenture of Mortgage, dated as of July 15, 1959, from
United Cities Gas Company to U.S. Bank Trust National Association (formerly First Trust of
Illinois, National Association), and M.J. Kruger, as Trustees, as amended supplemented or otherwise
modified from time to time, the Indenture of Mortgage through the Twenty-Second Supplemental
Indenture by the Company to U.S. Bank Trust National Association (formerly First Trust National
Association) and Russell C. Bergman, as Trustees, as amended, supplemented or otherwise modified
from time to time.
18
United States means, unless otherwise specified with respect to any Securities pursuant to
Section 301, the United States of America (including the states and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.
United States person means, unless otherwise specified with respect to any Securities pursuant to
Section 301, an individual who is a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the United States or an
estate or trust the income of which is subject to United States federal income taxation regardless
of its source.
Vice President, when used with respect to the Company 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.
Yield to Maturity means the yield to maturity, computed at the time of issuance of a Security
(or, if applicable, at the most recent redetermination of interest on such Security) and as set
forth in such Security in accordance with generally accepted United States bond yield computation
principles.
SECTION 102.
Compliance Certificates and Opinions
.
Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee an Officers Certificate
stating that all conditions precedent, if any, provided for in this Indenture (including any
covenant compliance with which constitutes a condition precedent) relating to the proposed action
have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion (other than the certificates required by Section 1004) with
respect to compliance with a covenant or condition 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 has made such
examination or investigation as is necessary to enable him 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 covenant or
condition 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 Company 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 his 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 Company stating that the information with respect to such factual matters is in the possession
of the Company, 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.
SECTION 104.
Acts of Holders
.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of the Outstanding Securities of any
series may be embodied in and evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by agents duly appointed in writing. Except as herein
otherwise expressly provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the Act of the
Holders signing such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or of the holding by
any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to TIA
Section 315) conclusive in favor of the Trustee and the Company, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any such instrument or writing may be
proved in any reasonable manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) If the Company shall solicit from the Holders of Securities any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may, at its
option, by or pursuant to a Board Resolution, fix in advance a record date for the
determination
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of such Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), any such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not more than 30 days prior to the first
solicitation of Holders generally in connection therewith and no later than the date such
solicitation is completed. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite proportion of Securities
then Outstanding have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the Securities then
Outstanding shall be computed as of such record date;
provided
that no such request,
demand, authorization, direction, notice, consent, waiver or other Act by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant to the provisions
of this Indenture not later than six months after the record date.
(e) Any request, demand, authorization, direction, notice, consent, waiver or other Act by the
Holder of any Security shall bind every future Holder of the same Security or 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, suffered or omitted to be done by the Trustee, any Paying
Agent or the Company in reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105.
Notices, etc. to Trustee and Company
.
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,
(1) the Trustee by any Holder, an agent of any bank or the Company shall be sufficient
for every purpose hereunder if made, given, furnished or delivered, in writing, to or with
the Trustee at its Corporate Trust Office, Attention: Corporate Trust Department; or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if made, given, furnished or
delivered, in writing, to the Company, addressed to it c/o 1800 Three Lincoln Centre, 5430
LBJ Freeway, Dallas, Texas 75240, Attention: Treasurer, or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106.
Notice to Holders; Waiver
.
Where this Indenture provides for notice of any event to Holders of Securities by the Company
or the Trustee, 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, and
not earlier than the earliest date, prescribed for the giving of such notice. In any case where
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notice to Holders of Securities 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 of Securities. Any notice mailed to a Holder in the aforesaid
manner shall be conclusively deemed to have been received by such Holder, whether or not such
Holder actually receives such notice.
In case, by reason of the suspension of or irregularities in regular mail service or by reason
of any other cause, it shall be impractical to mail notice of any event to Holders of Securities
when such notice is required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be
sufficient giving of such notice for every purpose hereunder.
Any request, demand, authorization, direction, notice, consent or waiver required or permitted
under this Indenture shall be in the English language, except that any published notice may be in
an official language of the country of publication.
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 with the
Trustee, but such filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107.
Conflict of Any Provision of Indenture with Trust Indenture Act
.
If and to the extent that any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA Sections 310 to 318, inclusive, or conflicts with any provision (an
incorporated provision) required by or deemed to be included in this Indenture by operation of
such TIA Sections, such imposed duties or incorporated provision shall control. If any provision
of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or 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.
SECTION 109.
Successors and Assigns
.
All covenants and agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 110.
Separability Clause
.
In case any provision in this Indenture or in any Security 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.
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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, any Authenticating Agent, any Paying Agent, any Securities Registrar
and their successors hereunder and the Holders of Securities, 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 that would apply any
other law. This Indenture is subject to the provisions of the Trust Indenture Act that are
required to be part of this Indenture and shall, to the extent applicable, be governed by such
provisions.
SECTION 113.
Legal Holidays
.
In any case where any Interest Payment Date, Redemption Date, sinking fund payment date or
Stated Maturity or 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 any Security other than a
provision in the Securities of any series which specifically states that such provision shall apply
in lieu of this Section), payment of principal (or premium, if any) or interest, 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 sinking fund payment date, or at the Stated Maturity or Maturity;
provided
that no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity, as the case may be,
to such succeeding Business Day.
SECTION 114.
No Recourse Against Others
.
A director, officer, employee or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their creation. Each Holder by
accepting any of the Securities waives and releases all such liability.
ARTICLE TWO
SECURITY FORMS
SECTION 201.
Forms Generally
.
The Securities shall be in substantially the forms as shall be established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, 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
23
any
securities exchange or as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. If the forms of Securities of any
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 Corporate Secretary or an Assistant Corporate
Secretary of the Company 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. Any
portion of the text of any Security may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Security.
The Trustees certificate of authentication on all Securities shall be in substantially the
form set forth in this Article.
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 of the Company executing
such Securities, as evidenced by their execution of such Securities.
SECTION 202.
Form of Trustees Certificate of Authentication
.
Subject to Section 612, the Trustees certificate of authentication shall be in substantially
the following form:
TRUSTEES CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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U.S. BANK NATIONAL ASSOCIATION, as
Trustee
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By
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Authorized Officer
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SECTION 203.
Securities Issuable in Global Form
.
When Securities of or within a series are issued in global form, as specified as contemplated
by Section 301, then, any such Security shall represent such of the Outstanding Securities of such
series as shall be specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities of such series from time to time endorsed thereon and that the aggregate
amount of Outstanding Securities of such series represented thereby may from time to time be
increased or decreased to reflect exchanges. Any endorsement of a Security in global form to
reflect the amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon instructions given by such
Person or Persons as shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 303 or Section 305. Subject to the provisions of Section 303 and, if
applicable, Section 305, the Trustee shall deliver and redeliver any Security in permanent global
form in the manner and upon instructions given by the Person or Persons
24
specified therein or in the applicable Company Order. If a Company Order pursuant to
Section 303 or Section 305 has been, or simultaneously is, delivered, any instructions by the
Company with respect to endorsement or delivery or redelivery of a Security in global form shall be
in writing but need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall apply to any Security represented by
a Security in global form if such Security was never issued and sold by the Company and the Company
delivers to the Trustee the Security in global form together with written instructions (which need
not comply with Section 102 and need not be accompanied by an Opinion of Counsel) with regard to
the reduction in the principal amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 308, unless otherwise specified as contemplated by
Section 301, payment of principal of (and premium, if any) and interest, if any, on any Security in
permanent global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 310 and except as provided in the preceding
paragraph, the Company, the Trustee and any agent of the Company and the Trustee shall treat as the
Holder of such principal amount of Outstanding Securities represented by a permanent Global
Security the Holder of such permanent Global Security.
SECTION 204.
Form of Legend for Book-Entry Securities
.
Any Global Security authenticated and delivered hereunder shall bear a legend (which would be
in addition to any other legends required in the case of a Restricted Security) 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 DEPOSITORY 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 DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
ARTICLE THREE
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.
25
The Securities may be issued in one or more series. There shall be established in one or more
Board Resolutions or pursuant to authority granted by one or more Board Resolutions and, subject to
Section 303, set forth in, 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, any or all of the following, as applicable (each of which, if so provided, may be
determined from time to time by the Company with respect to unissued Securities of the series and
set forth in such Securities of the series when issued from time to time):
(1) The title of the Securities of the series (which shall distinguish the Securities
of the series from all other series of Securities);
(2) Whether the Securities of the series are subject to subordination and, if so, the
terms of such subordination;
(3) The aggregate principal amount of the Securities of the series, the percentage of
their principal amount at which the Securities of the series shall be issued and the date or
dates on which the principal of the Securities of the series shall be payable or the method
by which such date or dates shall be determined or extended;
(4) The rate or rates (which may be fixed or variable) at which the Securities of the
series shall bear interest, if any, and, if variable, the method by which such rate or rates
shall be determined and the periods when such rate or rates will be in effect;
(5) The date or dates from which any interest shall accrue or the method by which such
date or dates will be determined, the date or dates on which any interest will be payable
(including the Regular Record Dates for such Interest Payment Dates) or the method by which
such dates will be determined, the terms under which payment of any interest may be deferred
if it may be deferred, and the basis on which any interest will be calculated if other than
on the basis of a 360-day year of twelve 30-day months;
(6) The place or places, if any, other than or in addition to New York City, where the
principal of (and premium, if any, on) and interest, if any, on the Securities of the series
will be payable, where any Securities may be surrendered for registration of transfer, where
the Securities of the series may be surrendered for exchange and where notices or demands to
or upon the Company in respect of the Securities of the series may be served;
(7) The period or periods within which, the price or prices at which, and the other
terms and conditions upon which, the Securities of the series may be redeemed, in whole or
in part, at the option of the Company, if the Company is to have that option and
any restrictions on the sources of funds for redemption payments (which may benefit the
holders of any other securities of the Company);
(8) The obligation, if any, of the Company to redeem, purchase or repay the Securities
of the series, in whole or in part, pursuant to any sinking fund or analogous provision or
at the option of a holder thereof, and the period or periods within which, the
26
price or prices at which, and the other terms and conditions upon which, the Securities of the series will be so redeemed, purchased or repaid;
(9) Whether the amount of payments of principal of (and premium, if any, on) and
interest, if any, on the Securities of the series may be determined with reference to an
index, formula or other method (which index, formula or method may, without limitation, be
based on one or more commodities, equity indices or other indices) and the manner in which
such amounts shall be determined;
(10) Any deletions from, modifications of or additions to the Events of Default or
covenants of the Company with respect to the Securities of the series (which Events of
Default or covenants may not be consistent with the Events of Default or covenants set forth
in the general provisions of this Indenture);
(11) If other than the entire principal amount thereof, the portion of the principal
amount of the Securities of the series that shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 502 or the method by which such
portion shall be determined;
(12) Any provisions in modification of, in addition to or in lieu of any provisions of
Article Fourteen of this Indenture relating to defeasance and covenant defeasance that shall
be applicable to the Securities of the series;
(13) Any provisions granting special rights to the Holders of the Securities of the
series upon the occurrence of such events as may be specified;
(14) If other than the Trustee, the designation of any Paying Agent or Security
Registrar for the Securities of the series, and the designation of any transfer or other
agents or depositories for the Securities of the series;
(15) Whether the Securities of the series shall be issuable initially in temporary
global form, whether any of the Securities of the series is to be issuable in permanent
global form and, if so, whether beneficial owners of interests in any Global Security may
exchange such interests for Definitive Securities of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may occur, if other than
in the manner provided in the Indenture, and, if the Securities are to be issuable as a
Global Security, the identity of the depository for the Securities of the series;
(16) The person to whom any interest on any Security shall be payable, if other than
the person in whose name the Securities of the series (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date for such
interest, or the manner in which any interest payable on a temporary Security issued in
global form shall be paid (if other than as described in Section 304);
(17) The denomination or denominations in which the Securities of the series shall be
issuable, if other than $1,000 or any integral multiple thereof;
27
(18) Whether and under what circumstances the Company shall pay Additional Amounts, as
contemplated by Section 1008 of this Indenture, on the Securities of the series to any
Holder who is not a United States person (including any modification of the definition of
such term as contained in this Indenture) in respect of any tax, assessment or governmental
charge and, if so, whether the Company shall have the option to redeem the Securities of the
series rather than pay such Additional Amounts (and the terms of any such option); and
(19) Any other terms, conditions, rights and preferences (or limitations on such rights
and preferences) of the Securities of the series which may not be consistent with the other
provisions of this Indenture.
All Securities of any one series shall be substantially identical except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 303) and set forth in such
Officers Certificate or in any such indenture supplemental hereto. Not all Securities of any one
series need be issued at the same time, and, unless otherwise provided, a series may be reopened
for issuances of additional Securities of such series.
If any of the terms of the series are established by action taken pursuant to one or more
Board Resolutions, such Board Resolutions shall be delivered to the Trustee at or prior to the
delivery of the Officers Certificate setting forth the terms of the series.
SECTION 302.
Denominations
.
The Securities of each series shall be issuable in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such provisions, the Securities of such series,
other than Securities issued in global form (which may be of any denomination), 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 Company by any one of the following: its
Chairman, its Chief Executive Officer, its President or one of its Vice Presidents, and attested by
one of its Vice Presidents, its Corporate Secretary or one of its Assistant Corporate 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 Company shall bind the Company, 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
Company may deliver Securities of any series, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such
Securities, which order shall set forth the number of separate Securities, the principal amount of
the Securities to be authenticated, the date on which the Securities are to be authenticated, the
registered holders of the Securities and delivery instructions, and the Trustee
28
in accordance with such Company Order shall authenticate and make available for delivery such Securities. If not all
the Securities of any series are to be issued at one time and if the Board Resolution or
supplemental indenture establishing such series shall so permit, such Company Order may set forth
procedures acceptable to the Trustee for the issuance of such Securities and determining terms of
particular Securities of such series such as interest rate, stated maturity, date of issuance and
date from which interest shall accrue.
In authenticating such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to
TIA Sections 315(a) through 315(d)) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(1) that the form or forms of such Securities have been established in conformity with
the provisions of this Indenture;
(2) that the terms of such Securities have been established in conformity with the
provisions of this Indenture;
(3) that such Securities, when completed by appropriate insertions and executed and
delivered by the Company to the Trustee for authentication in accordance with this
Indenture, authenticated and made available for delivery by the Trustee in accordance with
this Indenture and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute the legal, valid and binding
obligations of the Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization and other similar laws of general
applicability relating to or affecting the enforcement of creditors rights, to general
equitable principles and to such other qualifications as such counsel shall conclude do not
materially affect the rights of Holders of such Securities;
(4) that all laws and requirements in respect of the execution and delivery by the
Company of such Securities, and of the supplemental indentures, if any, have been complied
with and that authentication and delivery of such Securities and the execution and delivery
of the supplemental indenture, if any, by the Trustee will not violate the terms of the
Indenture;
(5) that the Company has the corporate power to issue such Securities, and all
necessary corporate action with respect to such issuance has been taken; and
(6) that the issuance of such Securities will not contravene the articles of
incorporation or bylaws of the Company or result in any violation of any of the terms or
provisions of any law or regulation or of any indenture, mortgage or other agreement known
to such Counsel by which the Company is bound.
Notwithstanding the provisions of Section 301 and of the preceding two paragraphs, if not all
the Securities of any series are to be issued at one time, so long as the terms and provisions of
such Securities are substantially identical to the other Securities of such series, 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 the
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preceding two paragraphs prior to or at the time of issuance of each Security, but such documents shall be delivered prior
to or at the time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate and make available for delivery any such
Securities if the issuance of such Securities pursuant to this Indenture will affect the Trustees
own rights, duties, immunities, protections, privileges, indemnities and benefits under the
Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
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 duly 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 and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as provided in Section 311 together
with a written statement (which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold by the Company, 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.
Book-Entry Securities
.
(a) The Securities of a series may be issuable in whole or in part in the form of one or more
Global Securities (Book-Entry Securities) deposited with, or on behalf of, a Depository (the
Depository). In the case of Book-Entry Securities, one or more Global Securities will be issued
in a denomination or aggregate denomination equal to the portion of the
aggregate principal amount of Outstanding Securities of the series to be represented by such
Global Security or Global Securities. The additional provisions set forth in this Section 304
shall apply to Book-Entry Securities.
(b) Book-Entry Securities will be deposited with, or on behalf of, the Depository, and
registered in the name of the Depositorys nominee, for credit to the respective accounts of
institutions that have accounts with the Depository or its nominee (Participants);
provided
that Book-Entry Securities purchased by Persons outside the United States may be
credited to or through accounts maintained at the Depository by or on behalf of Euroclear or
Clearstream International. The accounts to be credited will be designated by the underwriters or
agents of such Securities or, if such Securities are offered and sold directly by the Company, by
the Company. Ownership of beneficial interests in Book-Entry Securities will be limited to Persons
that may hold interests through Participants.
30
Participants shall have no rights under this Indenture or any indenture supplemental hereto
with respect to any Book-Entry Security held on their behalf by the Depository, or the Trustee as
its custodian, and the Depository may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of the Book-Entry Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing in this Indenture or any such supplemental
indenture shall prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization furnished by the
Depository or impair, as between a Depository and its Participants, the operation of customary
practices governing the exercise of the rights of a Holder of any Security.
(c) Transfers of Book-Entry Securities shall be limited to transfers in whole, but not in
part, to the Depository, its successors or their respective nominees. Interests of beneficial
owners in Book-Entry Securities may be transferred or exchanged for Securities in fully registered,
certificated form (Definitive Securities) only if (i) the Depository notifies the Trustee in
writing that the Depository is no longer willing or able to continue as Depository and a qualified
successor Depository is not appointed by the Company within 60 days following such notice, (ii) the
Company, at any time and in its sole discretion, determines not to have any Securities of one or
more series represented by Global Securities or (iii) after the occurrence of an Event of Default
with respect to such Securities, a holder of Securities notifies the Trustee in writing that it
wishes to receive a Definitive Security and provides to the Trustee evidence reasonably
satisfactory to the Trustee of its ownership interest in such Securities. In any such instance, an
owner of a beneficial interest in a Global Security will be entitled to physical delivery of
Definitive Securities equal in principal amount to such beneficial interest and registered in its
name.
(d) In connection with any transfer or exchange of a portion of the beneficial interest in any
Book-Entry Security to beneficial owners pursuant to paragraph (c) above, the Security Registrar
shall reflect on its books and records the date and a decrease in the principal amount of the
Book-Entry Security in an amount equal to the principal amount of the beneficial interest in the
Book-Entry Security to be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Definitive Securities of like tenor and principal amount of
authorized denominations.
(e) In connection with the transfer of Book-Entry Securities as an entirety to beneficial
owners pursuant to paragraph (c) above, the Book-Entry Securities shall be deemed to be surrendered
to the Trustee for cancellation and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depository in exchange for its beneficial
interest in the Book-Entry Securities, an equal aggregate principal amount of Definitive Securities
of like tenor of authorized denominations.
(f) The Holder of any Book-Entry Security may grant proxies and otherwise authorize any
Person, including Participants and Persons that may hold interests through Participants, to take
any action which a Holder is entitled to take under this Indenture or the Securities.
SECTION 305.
Temporary Securities
.
31
Pending the preparation of Definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are
typewritten, printed, lithographed, engraved or otherwise produced by any combination of these
methods, in any authorized denomination, substantially of the tenor of the Definitive Securities in
lieu of which they are issued, in registered form 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. Such temporary Securities may be in global form.
If temporary Securities of any series are issued, the Company 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 Company 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
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of Definitive Securities of the same series of authorized denominations. 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.
Until exchanged in full as hereinabove provided, the temporary Securities of any series,
including temporary Global Securities (whether or not issued as Book-Entry Securities as provided
in Section 304), shall in all respects be entitled to the same benefits under this Indenture as
Definitive Securities of the same series and of like tenor authenticated and delivered hereunder.
SECTION 306.
Registration, Registration of Transfer and Exchange
.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register for
each series of Securities (the registers maintained in such office of the Trustee and in any other
office or agency designated pursuant to Section 1002 being herein sometimes referred to as the
Security Register) in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Securities and of transfers of Securities. The
Trustee is hereby initially appointed Security Registrar for the purpose of registering
Securities and transfers of Securities as herein provided.
Except as otherwise described in this Article Three, upon surrender for registration of
transfer of any Security of any series at the office or agency of the Security Registrar in a Place
of Payment for that series, the Company 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, in each case, of any authorized denominations and of a like aggregate principal
amount.
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 a like aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
32
any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, 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 Company, 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 Company or the Security Registrar) be duly endorsed, or be accompanied by a
written instrument of transfer, in form satisfactory to the Company and the Security Registrar,
duly executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to pay all documentary, stamp, similar
issue or transfer taxes or other governmental charges that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges pursuant to Section 305,
906, 1107 or 1305 not involving any transfer.
Neither the Company nor the Security Registrar shall be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the selection for redemption of Securities of that series under
Section 1103 or 1203 and ending at the close of business on the day of the mailing of the relevant
notice of redemption, or (ii) 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, or (iii) to issue, register the transfer of or exchange any Security which has
been surrendered for repayment at the option of the Holder, except the portion, if any, of
such Security not to be so repaid.
SECTION 307.
Mutilated, Destroyed, Lost and Stolen Securities
.
If any mutilated Security is surrendered to the Trustee together with, in proper cases, such
security or indemnity as may be required by the Company or the Trustee to save each of them and any
agent of either of them harmless from any loss or liability which any of them may suffer if a
Security is replaced and subsequently presented or claimed for payment, the Company 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, or, in case any such mutilated Security has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
If there shall be delivered to the Company and to the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity
as may be required by them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or an Authorized Officer of the Trustee that such Security
33
has been acquired by a bona fide purchaser, the Company shall execute and upon Company Order
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.
Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to pay all documentary, stamp or similar issue or transfer taxes or other
governmental charges that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.
Every new Security of any series, if any, issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original additional contractual
obligation of the Company, whether or not the mutilated, 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 307 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 308.
Payment of Interest; Interest Rights Preserved; Optional Interest Reset
.
(a) Unless otherwise provided as contemplated by Section 301 with respect to any series of
Securities, interest, if any, 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 such Security
(or one or more Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained for such purpose
pursuant to Section 1002;
provided
,
however
, that each installment of interest, if
any, on any Security may at the Companys option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto pursuant to Section 310, to the
address of such Person as it appears on the Security Register or (ii) with the consent of the
Trustee (if the Trustee is then serving as Paying Agent) wire transfer to an account located in the
United States maintained by the payee.
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 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 and, if applicable, interest on such defaulted interest (to the extent lawful) at the rate
specified in the Securities of such series (such defaulted interest and, if applicable, interest
thereon herein collectively called Defaulted Interest) may be paid by the Company, at its
election in each case, as provided in Subsection (1) or (2) below:
34
(1) The Company 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 Company 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
Company shall deposit with the Trustee an amount of money (except as otherwise specified
pursuant to Section 301 for the Securities of such series) 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 on or 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 Subsection 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 Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be given in the manner
provided 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 given, such Defaulted Interest shall be paid to the Persons in whose name 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 Subsection (2).
(2) The Company 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 on which such Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
(b) The provisions of this Section 308(b) may be made applicable to any series of Securities
pursuant to Section 301 (with such modifications, additions or substitutions as may be specified
pursuant to such Section 301). The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on any Security of such series may be reset by the
Company on the date or dates specified on the face of such Security (each an Optional Reset
Date). The Company may exercise such option with respect to such Security by notifying the
Trustee of such exercise at least 50 but not more than 60 days prior to an Optional Reset Date for
such Security, which notice shall contain such information as may be required by the Trustee to
transmit the Reset Notice (as hereinafter defined). Not later than 40 days prior to each Optional
Reset Date, the Trustee shall transmit, in the manner provided for in Section 106, to the Holder of
any such Security a notice (the Reset Notice) indicating whether the Company has elected to reset
the interest rate (or the spread or spread multiplier used to calculate such interest rate, if
applicable), and if so (i) such new interest rate (or such new spread
or spread multiplier, if applicable) and (ii) the provisions, if any, for redemption during
the period from such Optional Reset Date to the next Optional Reset Date or if there is no such next
35
Optional Reset Date, to the Stated Maturity of such Security (each such period a Subsequent
Interest Period), including the date or dates on which or the period or periods during which and
the price or prices at which such redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the Optional Reset Date, the
Company may, at its option, revoke the interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) provided for in the Reset Notice and establish an
interest rate (or a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread multiplier, if
applicable) provided for in the Reset Notice, for the Subsequent Interest Period by causing the
Trustee to transmit, in the manner provided for in Section 106, notice of such higher interest rate
(or such higher spread or spread multiplier, if applicable) to the Holder of such Security; and
such notice shall be irrevocable. All Securities with respect to which the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if applicable) is reset on an
Optional Reset Date, and with respect to which the Holders of such Securities have not tendered
such Securities for repayment (or have validly revoked any such tender) pursuant to the next
succeeding paragraph, will bear such higher interest rate (or such higher spread or spread
multiplier, if applicable).
The Holder of any such Security will have the option to elect repayment by the Company of the
principal of such Security on each Optional Reset Date at a price equal to the principal amount
thereof plus interest accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in Article Thirteen for
repayment at the option of Holders except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to such Optional Reset Date and except
that, if the Holder has tendered any Security for repayment pursuant to the Reset Notice, the
Holder may, by written notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day (or if such day is not a Business Day, on the immediately succeeding
Business Day) before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 306, 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 309.
Optional Extension of Stated Maturity
.
The provisions of this Section 309 may be made applicable to any series of Securities pursuant
to Section 301 (with such modifications, additions or substitutions as may be specified pursuant to
such Section 301). The Stated Maturity of any Security of such series may be extended at the
option of the Company for the period or periods specified on the face of such Security (each an
Extension Period) up to but not beyond the date (the Final Maturity) set forth on the face of
such Security. The Company may exercise such option with respect to any Security by notifying the
Trustee of such exercise at least 50 but not more than 60 days prior to the Stated Maturity of such
Security in effect prior to the exercise of such option (the Original Stated Maturity). If the
Company exercises such option, the Trustee shall transmit, in the manner provided for in Section
106, to the Holder of such Security not later than 40 days prior to the Original Stated Maturity a
notice (the Extension Notice) indicating (i) the election of the
36
Company to extend the Stated Maturity, (ii) the new Stated Maturity, (iii) the interest rate, if
any, applicable to the Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustees transmittal of the Extension Notice, the Stated Maturity of
such Security shall be extended automatically and, except as modified by the Extension Notice and
as described in the next paragraph, such Security will have the same terms as prior to the
transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before the Original Stated Maturity of
such Security, the Company may, at its option, revoke the interest rate provided for in the
Extension Notice and establish a higher interest rate for the Extension Period by causing the
Trustee to transmit, in the manner provided for in Section 106, notice of such higher interest rate
to the Holder of such Security; and such notice shall be irrevocable. All Securities with respect
to which the Stated Maturity is extended will bear such higher interest rate.
If the Company extends the Maturity of any Security, the Holder will have the option to elect
repayment of such Security by the Company on the Original Stated Maturity at a price equal to the
principal amount thereof, plus interest accrued to such date. In order to obtain repayment on the
Original Stated Maturity once the Company has extended the Maturity of such Security, the Holder
must follow the procedures set forth in Article Thirteen for repayment at the option of Holders,
except that the period for delivery or notification to the Trustee shall be at least 25 but not
more than 35 days prior to the Original Stated Maturity and except that, if the Holder has tendered
any Security for repayment pursuant to an Extension Notice, the Holder may by written notice to the
Trustee revoke such tender for repayment until the close of business on the tenth day (or if such
day is not a Business Day, on the immediately succeeding Business Day) before the Original Stated Maturity.
SECTION 310.
Persons Deemed Owners
.
Prior to due presentment of a Security for registration of transfer, the Company, the Trustee
and any agent of the Company 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
premium, if any) and (subject to Sections 306 and 308) interest, if any, on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and none of the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of (i) the records relating to or payments made on
account of any Participants or any beneficial ownership interests of a Security in global form,
(ii) maintaining, supervising or reviewing any records maintained by any Depository or Participant
or any other Person relating to such beneficial ownership interests, (iii) the delivery or
timeliness of delivery of any notice to any beneficial owner of Securities which is required or
permitted under the terms of this Indenture or such Securities, (iv) the selection of the
beneficial owners to receive payments in the event of a partial redemption or repayment, or (v) any
consent given or other action taken by the Depository or other Holder of a Security, as the
registered holder thereof.
37
Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall
prevent the Company, the Trustee, or any agent of the Company or the Trustee, from giving effect to
any written certification, proxy or other authorization furnished by any Depository, as a Holder,
with respect to such Global Security or impair, as between such Depository and owners of beneficial
interests in such Global Security, the operation of customary practices governing the exercise of
the rights of such Depository (or its nominee) as Holder of such Global Security.
SECTION 311.
Cancellation
.
All Securities surrendered for payment, redemption, repayment at the option of the Holder,
registration of transfer or exchange or for credit against any current or future sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered to the Trustee shall be promptly cancelled by it. The Company may at
any time deliver to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company 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 Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. If the Company shall so acquire any of the
Securities, however, such acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted by this Indenture.
All cancelled Securities held by the Trustee shall be disposed of by the Trustee in accordance with
its customary procedures, unless by Company Order the Company shall direct that cancelled
Securities be returned to it.
SECTION 312.
Computation of Interest
.
Interest, if any, on the Securities of each series shall be computed on the basis of a 360-day
year of twelve 30-day months.
SECTION 313.
CUSIP Numbers
.
The Company in issuing the Securities may use CUSIP numbers (if then generally in use) in
addition to serial numbers, and, if so, the Trustee shall use such CUSIP numbers in addition to
serial numbers in notices of repurchase 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 repurchase and that reliance may be
placed only on the serial or other identification numbers printed on the Securities, and any such
repurchase shall not be affected by any defect in or omission of such CUSIP numbers. The Company
will promptly notify the Trustee of any change in the CUSIP numbers.
38
ARTICLE FOUR
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 any surviving rights of
registration of transfer or exchange of Securities of such series expressly provided for herein or
pursuant hereto) and the Trustee, on demand of and at the expense of the Company, 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 have
been delivered to the Trustee for cancellation; or
(B) all 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) if redeemable at the option of the Company, 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 Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably deposited
or caused to be deposited with the Trustee as trust funds in trust for such purpose
an amount sufficient to pay and discharge the entire indebtedness on such Securities
not theretofore delivered to the Trustee for cancellation, for principal (and
premium, if any) and interest, if any, 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 Company has paid or caused to be paid all other sums payable hereunder by the
Company with respect to such series; and
(3) the Company 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.
39
Notwithstanding the satisfaction and discharge of this Indenture as to such
series, the obligations of the Company to the Trustee under Section 606, the obligations of
the Trustee to any Authenticating Agent under Section 612 and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of Subsection (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall
survive.
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 (including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal (and premium, if any) and interest, if any, for
whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
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:
(1) default in the payment of any installment of interest upon any Security of such
series when it becomes due and payable, continued for 30 days; or
(2) default in the payment of the principal of (or premium, if any, on) any Security of
such series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by the terms of
the Securities of such series and Article Twelve; or
(4) failure on the part of the Company to observe or perform any other covenant or
agreement contained in this Indenture (other than a covenant or agreement included in this
Indenture not for the benefit of such series) for 60 days after written notice stating the
Company is in breach has been given to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of outstanding
Securities of such series; or
(5) default under any indenture or instrument under which the Company or any Restricted
Subsidiary has at the time outstanding indebtedness for borrowed money or guarantees thereof
in any individual instance in excess of $25,000,000 and, if not already matured in
accordance with its terms, such indebtedness has been accelerated and such acceleration is
not cured within 30 days after notice thereof has been given to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in aggregate principal
amount of Outstanding Securities of such series;
provided
40
that, if, prior to the entry of judgment in favor of the Trustee for payment of the
Securities of such series, the default under such indenture or instrument has been remedied
by the Company or such Restricted Subsidiary, or waived by the holders of such indebtedness,
then the Event of Default under this Indenture will be deemed likewise to have been remedied
or waived; or
(6) the entry of a decree or order by court having jurisdiction in the premises
adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect of the
Company under the Bankruptcy Law or any other applicable federal or state law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of the property of the Company, or ordering the winding
up or liquidation of the affairs of the Company, and the continuance of any such decree or
order unstayed and in effect for a period of 90 consecutive days; or
(7) the institution by the Company of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by the Company to the institution of bankruptcy or insolvency
proceedings against it, or the filing by the Company of a petition or answer or consent
seeking reorganization or relief under the Bankruptcy Law or any other applicable federal or
state law, or the consent by the Company to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of the property of the Company of an
assignment for the benefit of creditors, or the admission by the Company in writing of its
inability to pay its debts generally as they become due; or
(8) any other Event of Default provided for the benefit of Securities of such series.
SECTION 502.
Acceleration of Maturity; Rescission and Annulment
.
If any Event of Default described in Section 501 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 at least 25% in principal amount of the Outstanding Securities of that series may declare the
principal amount (or, if the Securities of that series are Original Issue Discount Securities or
Indexed Securities, such portion of the principal amount as may be specified in the terms of that
series) of all of the Securities of that series and all accrued interest thereon to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee if given by
Holders), and upon any such declaration such principal amount (or specified portion thereof) 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 Holders of a majority in principal amount of
the Outstanding Securities of that series, by written notice to the Company, and the Trustee, may
rescind and annul such declaration and its consequences if:
41
(a) the Company has paid or deposited with the Trustee a sum sufficient to pay:
(1) all overdue interest, if any, on all Outstanding Securities of that series,
(2) all unpaid principal of (and premium, if any, on) any Outstanding
Securities of that series which has become due otherwise than by such declaration of
acceleration, and interest on such unpaid principal (and premium, if any) at the
rate or rates prescribed therefor in such Securities,
(3) interest upon such overdue interest at the rate or rates prescribed
therefor in such Securities, and
(4) all sums paid or advanced by the Trustee for such series hereunder and
reasonable compensation, expenses, disbursements and advances of such Trustee, its
agents and counsel;
(b) all Events of Default with respect to Securities of that series, other than the
non-payment of principal of (or premium, if any, on) or interest, if any, 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 Company 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, or
(2) default is made in the payment of the principal of (or premium, if any, on) any
Security at the Maturity thereof,
then the Company 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 premium, if
any) and interest, if any, and interest on any overdue principal (and premium, if any) and on any
overdue interest, at the rate or rates prescribed therefor in 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.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name as trustee of an express trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid, may prosecute such proceeding to judgment or final
42
decree and may enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the
property of the Company 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 under this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce such rights.
SECTION 504.
Trustee May File Proofs of Claim
.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or any other obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment of overdue
principal, premium, if any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and premium, if any),
or such portion of the principal amount of any series of Original Issue Discount Securities
or Indexed Securities as may be specified in the terms of such series, and interest, if any,
owing and unpaid in respect of the Securities 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 allowed in such judicial proceeding, and
(ii) 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 606.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any proposal, plan of reorganization, arrangement,
adjustment or composition or other similar arrangement 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.
SECTION 505.
Trustee May Enforce Claims Without Possession of Securities
.
43
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 shall be
brought in its own name and 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 premium, if any) or interest, if any, 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 606;
Second
: To the payment of the amounts then due and unpaid for principal of
(and premium, if any) and interest, if any, 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 amounts due and payable on such Securities for principal (and
premium, if any) and interest, if any, respectively; and
Third
: The balance, if any, to the Company.
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 at least 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 an Event of Default described in Section 501 in its own name as Trustee hereunder
and such Holders have offered to the Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in compliance with such request;
(3) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
(4) no direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority or more in principal amount of the
Outstanding Securities of that series;
44
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 Holders of Securities of the same
series, in respect of any Event of Default described in Section 501, 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 Holders of Securities of the same series, in respect of such Event of
Default.
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
premium, if any) and (subject to Section 308) interest, if any, 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 the
Company, the Trustee and the Holders shall, subject to any determination in such proceeding, 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 in Section 307, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities 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 Security to exercise any right or
remedy accruing upon any Event of Default shall 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 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
.
45
With respect to the Securities of any series, the Holders of not less than a majority in
principal amount of the Outstanding Securities of such 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, related to or arising under Section 501,
provided
that in each case
(1) such direction shall not be in conflict with any rule of law or with this Indenture
or expose the Trustee to personal liability, and
(2) subject to the provisions of the TIA Section 315, the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such direction.
SECTION 513.
Waiver of Past Defaults
.
Subject to Section 502, the Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the Securities of such
series waive any past Default or Event of Default in Section 501 in respect of such series and its
consequences, except a Default or Event of Default,
(1) in respect of the payment of the principal of (or premium, if any) or interest, if
any, on any Security of such series, or
(2) in respect of a covenant or provision of such series which under Article Nine
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 any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or Event of Default or impair any right
consequent thereon.
SECTION 514.
Undertaking for Costs
.
All parties to this Indenture agree, and each Holder of Securities of any series 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, suffered 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 expenses, 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 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 the 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 on Securities of any series on or after the
respective Stated Maturities expressed in such Security (or, in the case of redemption, on or after
the Redemption Date);
provided
that neither this Section 514 nor the Trust Indenture Act
shall be deemed to
46
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company.
SECTION 515.
Waiver of Stay or Extension Laws
.
The Company 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, extension or usury law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (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 SIX
THE TRUSTEE
SECTION 601.
Notice of Defaults
.
Within 90 days after the occurrence of any Default hereunder with respect to the Securities of
any series of which the Trustee is deemed to have knowledge pursuant to Section 602, the Trustee
shall transmit by mail to all Holders, as their names and addresses appear in the Security
Register, notice of such Default hereunder, unless such Default shall have been cured or waived;
provided
,
however
, that, except in the case of a Default in the payment of the
principal of (or premium, if any) or interest, if any, on any Security of such series or in the
payment of any sinking fund installment with respect to Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the Board of Directors, the
executive committee or a trust committee of directors and/or Authorized Officers of the Trustee in
good faith determines that the withholding of such notice is in the interest of the Holders of
Securities of such series; and
provided
further
that in the case of any Default or
breach 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.
SECTION 602.
Certain Rights of Trustee
.
The duties and rights of the Trustee hereunder shall be provided in TIA Sections 315(a)
through 315(d) and, subject thereto,
(1) the Trustee may conclusively 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 believed by it to be genuine and to have been signed
or presented by the proper party or parties;
47
(2) any request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board of Directors
may 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) the Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders of
Securities of any series pursuant to 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 to examine the
books, records and premises of the Company, 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;
(8) 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;
(9) the Trustee shall not be liable for any error of judgment made in good faith by an
Authorized Officer, unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(10) The Trustee is not required to take notice or deemed to have notice of any Default
or Event of Default hereunder, unless an Authorized Officer of the Trustee has received
notice in writing of such Default or Event of Default from the Company or from the Holders
of at least 25% in aggregate principal amount of the Outstanding Securities
48
of the series so
affected, and in absence of any such notice, the Trustee may conclusively assume that no
Default or Event of Default exists;
(11) The Trustee is not required to give any bond or surety with respect to the
performance of its duties or the exercise of its powers under this Indenture;
(12) The Trustees immunities and protections from liability and its rights to
compensation and indemnification in connection with the performance of its duties under this
Indenture shall extend to the Trustees officers, directors, agents and employees. Such
immunities and protections and right to indemnification, together with the Trustees right to
compensation, shall survive the Trustees resignation or removal and final payment of the
Securities;
(13) The Trustee shall have no responsibility for any information in any offering
memorandum or other disclosure material distributed with respect to any series of
Securities, and the Trustee shall have no responsibility for compliance with any state or
federal securities laws in connection with the Securities, other than the filing of any
documents required to be filed by an indenture trustee pursuant to the Trust Indenture Act;
(14) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by the Trustee in each of its capacities hereunder, and each agent, custodian
and other Person employed to act hereunder;
(15) The Trustee may request that the Issuer deliver an Officers Certificate setting
forth the names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Indenture, which Officers Certificate may be signed by
any person authorized to sign an Officers Certificate, including any person specified as so
authorized in any such certificate previously delivered Certificate, including any person
specified as so authorized in any such certificate previously delivered and not superseded;
(16) The Trustee shall not be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss
or profit) irrespective of whether the Trustee has been advised of the likelihood of
such loss or damage and regardless of the form of action; and
(17) The Trustee shall not be required to give any note, bond or surety in respect of
the execution of the trusts and powers under this Indenture.
SECTION 603.
Trustee Not Responsible for Recitals or Issuance of Securities
.
The recitals contained herein and in the Securities, except for the Trustees certificates of
authentication, shall be taken as the statements of the Company, 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. The
Trustee shall not be accountable for the use or application by the Company of
49
Securities or the
proceeds thereof, except that the Trustee represents that it is duly authorized to execute and
deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that
the statements to be made by it in a Statement of Eligibility on Form T-1 supplied to the Company
are true and accurate, subject to the qualifications set forth therein. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 604.
May Hold Securities
.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company or of the Trustee, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to TIA Sections 310(b) and 311, may otherwise deal with
the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 605.
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 Company.
SECTION 606.
Compensation and Reimbursement
.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as shall be agreed to in
writing between the Company 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 or willful
misconduct; and
(3) to indemnify each of Trustee or any predecessor Trustee for, and to hold it
harmless against, any and all loss, damage, claim, liability or expense including taxes
(other than taxes based on the income of the Trustee) incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending itself against any claim or
liability in connection with any action taken, suffered or omitted by the Trustee hereunder.
As security for the performance of the obligations of the Company under this Section 606, the
Trustee shall have a lien prior to the Securities upon all property and funds held
50
or collected by
the Trustee as such, except funds held in trust for the payment of principal of (or premium, if
any) or interest, if any, on particular Securities.
The provisions of this Section shall survive the termination of this Indenture.
SECTION 607.
Conflicting Interests
.
The Trustee shall comply with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 608.
Corporate Trustee Required; Eligibility; Conflicting Interests
.
There shall at all times be a Trustee hereunder qualified or to be qualified under TIA Section
310(a)(1) and which, to the extent there is such an institution eligible and willing to serve,
shall have a combined capital and surplus of at least $50,000,000. If such Trustee publishes or
files reports of condition at least annually, pursuant to law or to the requirements of federal,
state, territorial or District of Columbia supervising or examining authority, then for the
purposes of this Section 608, the combined capital and surplus of the Trustee shall be deemed to be
its combined capital and surplus as set forth in its most recent report of condition so published
or filed. If at any time the Trustee shall cease to be eligible in accordance with the provisions
of this Section 608, it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 609.
Resignation and Removal; Appointment of Successor
.
(a) 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 under Section 610.
(b) The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 610 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may, at the expense of the Company,
petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities of any series by Act
of the Holders of not less than a majority in principal amount of the Outstanding Securities of
such series, delivered to the Trustee and the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of
such notice of removal, the removed Trustee may, at the expense of the Company, petition a court of
competent jurisdiction for the appointment of a successor Trustee.
(1) the Trustee shall fail to comply with the provisions of TIA Section 310(b) after
written request therefor by the Company 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 608 and shall fail to resign
after written request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, 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, (i) the Company, by a Board Resolution, may remove the Trustee with respect
to all Securities, or (ii) subject to TIA Section 514, the Holder of any Security 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.
(e) 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 Company, by a 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). 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 Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in accordance with Section
610, become the successor Trustee with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to
the Securities of any series shall have been so appointed by the Company or the Holders and
accepted appointment in the manner hereinafter provided, 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.
(f) The Company 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 the Holders of Securities of such series in the manner provided for
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 610.
Acceptance of Appointment by Successor
.
52
(a) Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company 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;
provided
,
however
, that the retiring
Trustee shall continue to be entitled to the benefit of Section 606; but, on the request of the
Company or the successor Trustee and after payment of all amounts due and payable to such retiring
Trustee pursuant to Section 606 (collectively, the Trustee Payments), such retiring Trustee
shall, upon payment of any additional charges therefor, 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.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities
of one or more (but not all) series and after receipt by the retiring Trustee of the Trustee
Payments, the Company, 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
Company or any successor Trustee and after receipt by the retiring Trustee of all Trustee Payments,
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.
(c) Upon request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Trustee all
rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) 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.
53
SECTION 611.
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 of the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided
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. In case any of the Securities
shall not have been authenticated by such predecessor Trustee, any successor Trustee may
authenticate such Securities either in the name of any predecessor hereunder or in the name of the
successor Trustee. In all such cases such certificates shall have the full force and effect which
this Indenture provides for the certificate of authentication of the Trustee;
provided
,
however
, that the right to adopt the certificate of authentication of any predecessor
Trustee or to authenticate Securities in the name of any predecessor Trustee shall apply only to
its successor or successors by merger, conversion or consolidation.
SECTION 612.
Appointment of Authenticating Agent
.
At any time when any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents 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 and the
Trustee shall give written notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, in the manner provided for in Section
106. 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. Any such
appointment shall be evidenced by an instrument in writing signed by an Authorized Officer of the
Trustee, and a copy of such instrument shall be promptly furnished to the Company. Wherever
reference is made in this Indenture to the authentication and delivery of Securities by the Trustee
or the Trustees 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 reasonably acceptable to the Company 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 corporation publishes or files 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 corporation shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published or filed. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect specified in this Section.
54
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 the corporate
agency or corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent,
provided
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 Company. 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 Company. 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 be acceptable to the Company and shall give
written notice of such appointment to all Holders of Securities of the series with respect to which
such Authenticating Agent will serve, in the manner provided for in Section 106. 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 Company 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 Trustees certificate of
authentication, an alternate certificate of authentication in the following form:
Dated:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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By
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as Authenticating Agent
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By
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Authorized Officer
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55
SECTION 613.
Preferential Collection of Claims Against Company
.
If and when the Trustee shall be or become a creditor of the Company (or any other obligor
under the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company (or any such other obligor).
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701.
Disclosure of Names and Addresses of Holders
.
Every Holder of Securities, by receiving and holding the same, agrees with the Company and the
Trustee that none of the Company or the Trustee or any agent of either of them shall be held
accountable by reason of the disclosure of any information as to the names and addresses of the
Holders in accordance with TIA Section 312, regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under TIA Section 312.
SECTION 702.
Reports by Trustee
.
Within 60 days after May 15 of each year commencing with the first May 15 after the first
issuance of Securities pursuant to this Indenture, the Trustee shall transmit to the Holders of
Securities, in the manner and to the extent provided in TIA Section 313(c), a brief report dated as
of such May 15 if required by TIA Section 313(a).
SECTION 703.
Reports by Company
.
The Company shall:
(1) file with the Trustee, within 30 days after the Company 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 the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the
Company is not required to file information, documents or reports pursuant to either of such
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,
56
documents and
reports with respect to compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses appear in the
Security Register, within 30 days after the filing thereof with the Trustee, in the manner
and to the extent provided in TIA Section 313(c), such summaries of any information,
documents and reports required to be filed by the Company pursuant to Subsections (1) and
(2) of this Section as may be required by rules and regulations prescribed from time to time
by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801.
Company May Consolidate, Etc., Only on Certain Terms
.
The Company shall not consolidate with or merge into, or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its assets to, any Person, unless:
(1) Immediately after giving effect to such transaction, no Event of Default (or event
that with notice or lapse of time, or both, would become an Event of Default) shall have
happened and be continuing;
(2) The corporation or other entity formed by such consolidation or into which the
Company is merged, or the Person to which such properties and assets will have been
conveyed, transferred or leased, assumes the Companys obligation as to the due and punctual
payment of the principal of (and premium, if any, on) and interest, if any, on all the
Securities and the performance and observance of every covenant to be performed by the
Company under this Indenture, and will be organized under the laws of the United States, one
of the states thereof or the District of Columbia; and
(3) The Company has delivered to the Trustee an Officers Certificate and Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and
such supplemental indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
This Section shall only apply to a merger or consolidation in which the Company is not the
surviving entity and to conveyances, leases and transfers by the Company as transferor or lessor.
SECTION 802.
Rights and Duties of Successor Corporation
.
In case of any such consolidation, merger, conveyance or transfer to which Section 801 applies
and upon any such assumption by the successor corporation or Person, such successor corporation or
Person shall succeed to and be substituted for the Company with the same effect as if it had been
named herein as the Company and the predecessor corporation shall
57
be relieved of any further
obligation under this Indenture. Such successor corporation or Person thereupon may cause to be
signed, and may issue either in its own name or in the name of the Company any or all of the
Securities issuable hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor corporation or Person, instead of
the Company, and subject to all the terms, conditions and limitations in this Indenture prescribed,
the Trustee shall authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company
to the Trustee for authentication, and any Securities which such successor corporation or
Person thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the
Securities so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the execution hereof. As
used in this Section, successor corporation or Person means the entity formed by such
consolidation or into which the Company is merged, or the Person which acquires by conveyance,
transfer or lease the properties and assets of the Company substantially as an entirety, as the
case may be, in each case as provided in Section 801.
SECTION 803.
Securities to be Secured in Certain Events
.
If, upon any such consolidation of the Company with, or merger of the Company into, any other
entity, or upon any conveyance, transfer or lease of the property of the Company substantially as
the entirety to any other Person, any Principal Property of the Company or any Restricted
Securities owned immediately prior thereto, would become or be subject to any Lien, then unless
such Lien could be created pursuant to Section 1006 without equally and ratably securing the
Securities, the Company prior to or simultaneously with such transaction will, as to such Principal
Property or Restricted Securities, secure the Securities Outstanding hereunder (together with, if
the Company shall so determine, any other Indebtedness of the Company now existing or hereafter
created which is not subordinate to the Securities) equally and ratably with (or prior to) the
Indebtedness which upon such event is to become secured as to such Principal Property or Restricted
Securities by such Lien, or will cause such Securities to be so secured;
provided
that for
the purpose of providing such equal and ratable security the principal amount of Original Issue
Discount Securities and Indexed Securities shall mean that amount which, at the time of making such
provision of such equal and ratable security, would be due and payable pursuant to Section 502 and
the terms of such Original Issue Discount Securities and Indexed Securities upon a declaration of
acceleration of the Maturity thereof, and the extent of such equal and ratable security shall be
adjusted, to the extent permitted by law, as and when said amount changes over time pursuant to the
terms of such Original Issue Discount Securities and Indexed Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901.
Supplemental Indentures Without Consent of Holders
.
58
Without the consent of any Holders, the Company, 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 satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the assumption by
any such successor of the covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company 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 being included solely for the benefit
of such series) or to surrender any right or power herein or in the Securities conferred
upon the Company; or
(3) to add any additional Events of Default (and if such Events of Default are to be
for the benefit of less than all series of Securities, stating that such Events of Default
are being included solely for the benefit of such series); or
(4) to change or eliminate any of the provisions of this Indenture;
provided
that any such change or elimination shall become effective only when there is no Security
Outstanding of any series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision; or
(5) to secure the Securities pursuant to the requirements of Section 803 or 1006 or
otherwise; or
(6) to establish the form or terms of Securities of any series as permitted by Sections
201 and 301; or
(7) 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 610(b); or
(8) to close this Indenture with respect to the authentication and delivery of
additional series of Securities; 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 shall not adversely affect the interests of the Holders of Securities of any
series in any material respect; or
(10) to supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of any series of Securities
pursuant to Sections 401, 1402 and 1403;
provided
that any such action shall
59
not
adversely affect the interests of the Holders of Securities of such series or any other
series of Securities in any material respect; or
(11) to make any other change that does not adversely affect the rights of any Holder.
SECTION 902.
Supplemental Indentures with Consent of Holders
.
With the consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities of the series affected by such supplemental indenture (including any
consents obtained in connection with a tender or exchange offer for Outstanding Securities), by Act
of such Holders delivered to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into one or more 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 applicable to such series or of modifying in any manner the rights of the Holders
of Securities of such series under this Indenture;
provided
,
however
, that no such
supplemental indenture amendment or waiver shall, without the consent of the Holder of each
Outstanding Security of such series affected thereby:
(1) change the Stated Maturity of the principal of (or premium, if any) or any
installment of interest on any Security, or reduce the principal amount thereof (or premium,
if any) or the rate of interest, if any, thereon, or change any obligation of the Company to
pay Additional Amounts as contemplated by Section 1008 (except as contemplated by Section
801(2) and permitted by Section 901(1)), or reduce the amount of the principal of an Indexed
Security or an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502 or the amount
thereof provable in bankruptcy pursuant to Section 504, or adversely affect any right of
repayment at the option of any Holder of any Security, or change any Place of Payment where,
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 or repayment at the option of the Holder, on or after the Redemption
Date or Repayment Date, as the case may be), or adversely affect any right to convert or
exchange any Security as may be provided pursuant to Section 301 herein, or
(2) reduce the percentage in principal amount of the Outstanding Securities of such
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 902, Section 513 or Section 1009,
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.
60
A supplemental indenture which changes or eliminates any covenant or other provision of
this Indenture as applicable to a 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 602 hereof) shall be fully protected
in relying upon an Opinion of Counsel 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 Trustees own rights, duties, protections,
privileges, indemnities, benefits 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
Company shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
SECTION 907.
Notice of Supplemental Indentures
.
Promptly after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 902, the Company shall give notice
61
thereof to the Holders of
each Outstanding Security affected, in the manner provided for in Section 106, setting forth in
general terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001.
Payment of Principal, Premium and Interest
.
The Company covenants and agrees, as to each series of Securities, that it will duly and
punctually pay the principal of (and premium, if any, on) and interest, if any, on the Securities
of such series in accordance with the terms of such Securities and this Indenture.
SECTION 1002.
Maintenance of Office or Agency
.
The Company will maintain, as to each series of Securities, in each Place of Payment for each
series of Securities an office or agency where Securities of such series may be presented or
surrendered for payment, where Securities of such series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in respect of the
Securities of such series and this Indenture may be served.
The Company shall 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 Company 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.
The Company 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 Company of its obligation to
maintain an office or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company shall 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 specified with respect to any Securities pursuant to Section 301
with respect to a series of Securities, the Company hereby designates as Places of Payment for each
series of Securities the office or agency of the Trustee in the Borough of Manhattan, the City of
New York, and initially appoints the Trustee at its Corporate Trust Office in Atlanta, Georgia and
at the office of its agent in the Borough of Manhattan, the City of New York as Paying Agent in
each such city as its agent to receive all such presentations, surrenders, notices and demands.
SECTION 1003.
Money for Security Payments to Be Held in Trust
.
If the Company shall at any time act as its own Paying Agent with respect to any series of
Securities, it shall, before each due date of the principal of (and premium, if any, on) and
interest, if any, on any of the Securities of such series, segregate and hold in trust for the
62
benefit of the Persons entitled thereto a sum (except as otherwise specified pursuant to Section
301 for the Securities of such series) sufficient to pay the principal of (and premium, if any, on)
and interest, if any, on Securities of such Series 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 Company shall have one or more Paying Agents for any series of Securities, it
will, prior to or on each due date of the principal of (and premium, if any, on) and interest, if
any, on any Securities of such series, deposit with the Paying Agent, a sum sufficient to pay the
principal (and premium, if any, on) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) will promptly notify the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent (other than the Trustee) for any series of
Securities 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) hold all sums held by it for the payment of the principal of (and premium, if any,
on) and interest, if any, on Securities of such series in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other obligor upon
the Securities of such series) in the making of any payment of principal (and premium, if
any, on) and interest, if any, on the Securities of such series; and
(3) at any time during the continuance of any such default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company 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 by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which sums were held by the Company 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 sums.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any, on) and interest, if any, on any
Security of any series and remaining unclaimed for two years after such principal (and premium, if
any, on) or interest has become due and payable, shall be paid to the Company on Company Request,
or (if then held by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
63
provided
,
however
, that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an Authorized
Newspaper, 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 Company.
SECTION 1004.
Statement as to Compliance
.
The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company, commencing with its fiscal year ending after the date hereof, a brief certificate from
any two of its principal executive officer, principal financial officer or principal accounting
officer as to his or her knowledge of the compliance by the Company with all conditions and
covenants under this Indenture. For purposes of this Section 1004, such compliance shall be
determined without regard to any period of grace or requirement of notice under this Indenture.
SECTION 1005.
Corporate Existence
.
Subject to Article Eight, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its respective corporate existence, rights (charter and
statutory) and franchises and the respective corporate existence, rights (charter and statutory)
and franchises of its Subsidiaries;
provided
,
however
, that the Company shall not
be required to preserve any such existence, right or franchise if the Company shall determine that
the preservation thereof is no longer desirable in the conduct of the business of it and its
Subsidiaries as a whole and not disadvantageous in any material respect to the Holders.
SECTION 1006.
Limitations on Liens
.
The Company covenants and agrees that it will not, and will not permit any Restricted
Subsidiary to, create, incur, issue or assume any Indebtedness secured by any Lien on any Principal
Property, or on shares of stock or Indebtedness of any Restricted Subsidiary (Restricted
Securities), without making effective provision for the Outstanding Securities to be secured by
the Lien equally and ratably with, or prior to, any and all Indebtedness or obligations secured or
to be secured thereby for so long as such Indebtedness and obligations are so secured, except that
the foregoing restriction shall not apply to:
(1) Any Lien existing on the date of the first issuance of Securities under this
Indenture, including, but not limited to, Liens on property or after-acquired property of
the Company or its Subsidiaries under the United Cities Indenture, or such other date as may
be specified in any supplemental indenture for any subsequent issuance of Securities under
this Indenture.
(2) Any Lien on any Principal Property or Restricted Securities of any Person existing
at the time such Person is merged or consolidated with or into the Company or a Restricted
Subsidiary, or becomes a Restricted Subsidiary, or arising thereafter otherwise than in
connection with the borrowing of money arranged thereafter and pursuant to
64
contractual
commitments entered into prior to and not in contemplation of such Persons becoming a
Restricted Subsidiary.
(3) Any Lien on any Principal Property existing at the time of acquisition of such
Principal Property by the Company or a Restricted Subsidiary, whether or not assumed by the
Company or such Restricted Subsidiary, provided that no such Lien may extend to any other
Principal Property of the Company or any Restricted Subsidiary.
(4) Any Lien on any Principal Property (including any improvements on an existing
Principal Property) of the Company or any Restricted Subsidiary, or any proceeds thereof or
additions thereto, and any Lien on the shares of stock of a Restricted Subsidiary that was
formed or is held for the purpose of acquiring and holding such Principal Property, in each
case to secure all or any part of the cost of acquisition, development, operation,
construction, alteration, repair or improvement of all or any part of such Principal
Property (or to secure Indebtedness incurred by the Company or a Restricted Subsidiary for
the purpose of financing all or any part of such cost);
provided
that such Lien is
created prior to, at the time of, or within 12 months after the latest of, the acquisition,
completion of construction or improvement or commencement of commercial operation of such
Principal Property and
provided
,
further
, that no such Lien may extend to
any other Principal Property of the Company or any Restricted Subsidiary, other than any
currently unimproved real property on which the Principal Property has been constructed or
developed or the improvement is located.
(5) Any Lien on any Principal Property or Restricted Securities to secure Indebtedness
owing to the Company or to a Restricted Subsidiary.
(6) Any Lien in favor of a governmental body to secure advances or other payments under
any contract or statute or to secure Indebtedness incurred to finance the purchase price or
cost of constructing or improving the property subject to such Lien.
(7) Any Lien created in connection with a project financed with, and created to secure,
Non-Recourse Indebtedness.
(8) Any Lien required to be placed on any property of the Company or its Subsidiaries
pursuant to the provisions of the United Cities Indenture.
(9) Any extension, renewal, substitution or replacement (or successive extensions,
renewals, substitutions or replacements), in whole or in part, of any Lien referred to in
the foregoing clauses (1) through (8), provided that the Indebtedness secured thereby may
not exceed the principal amount of Indebtedness so secured at the time of such renewal or
refunding, plus any premium, cost or expense in connection with such extensions, renewals,
substitutions or replacements and that such renewal or refunding Lien must be limited to all
or any part of the same property and improvements, shares of stock or Indebtedness that
secured the Lien renewed or refunded.
(10) Any Lien not permitted above securing Indebtedness that, together with the
aggregate outstanding principal amount of other secured Indebtedness that would otherwise be
subject to the foregoing restrictions (excluding Indebtedness secured by
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Liens permitted
under the foregoing exceptions) and the Attributable Debt in respect of all Sale and
Leaseback Transactions (not including Attributable Debt in respect of any such Sale and
Leaseback Transactions described in clause (iii) and (iv) of Section 1007) would not then
exceed 15% of Consolidated Net Tangible Assets.
SECTION 1007.
Limitation on Sale and Leaseback Transactions
.
The Company covenants and agrees that it will not, and will not permit any Restricted
Subsidiary to, enter into any Sale and Leaseback Transaction unless (i) the Company or a Restricted
Subsidiary would be entitled, without securing the Outstanding Securities, to incur Indebtedness
secured by a Lien on the Principal Property that is the subject of such Sale and Leaseback
Transaction pursuant to the provisions of Section 1006; (ii) the Attributable Debt associated with
the Sale and Leaseback Transaction would be in an amount permitted under Section 1006(10); (iii)
the proceeds received in respect of the Principal Property so sold and leased back at the time of
entering into such Sale and Leaseback Transaction are used for the business and operations of the
Company or any Subsidiary; or (iv) within 12 months after the sale or transfer, an amount equal to
the proceeds received in respect of the Principal Property so sold and leased back at the time of
entering into such Sale and Leaseback Transaction is applied to the prepayment (other than
mandatory prepayment pursuant to Section 1201) of any Outstanding Securities or Funded Indebtedness
that is owed by the Company or a Restricted Subsidiary (other than Funded Indebtedness that is held
by the Company or any Restricted Subsidiary or Funded Indebtedness of the Company that is
subordinate in right of payment to any Outstanding Securities).
SECTION 1008.
Additional Amounts
.
If any Securities of a series provide for the payment of additional amounts to any Holder who
is not a United States person in respect of any tax, assessment or governmental charge (Additional
Amounts), the Company shall pay to the Holder of any Security of such series such Additional
Amounts as may be specified pursuant to Section 301. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of (and premium, if any, on) or interest,
if any, on, or in respect of, any Security of a series or the net proceeds received on the sale or
exchange of any Security of a series, such mention shall be deemed to include mention of the
payment of Additional Amounts provided for by the terms of such series established pursuant to
Section 301 to the extent that, in such context, Additional Amounts are, were or would be payable
in respect thereof pursuant to such terms, and express mention of the payment of Additional Amounts
(if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express mention is not made. Except as otherwise specified
pursuant to Section 301, if the Securities of a series provide for the payment of Additional
Amounts, at least 10 days prior to the first Interest Payment Date, if any, with respect to
Securities of such series (or if the Securities of such series do not bear interest or will not
bear interest prior to Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of interest or principal and any premium
if there has been any change with respect to the matters set forth in the below-mentioned Officers
Certificate, the Company shall furnish the Trustee and the Paying Agent or Paying Agents, if other
than the Trustee, with an Officers Certificate instructing the Trustee and the Paying Agent or
Paying Agents whether such payment of principal of (and
66
premium, if any, on) or interest, if any,
on the Securities of such series shall be made to Holders of Securities of such series who are not
United States persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If any such withholding shall be
required, then such Officers Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities of such series and the Company shall pay
to the Trustee or the Paying Agent or Paying Agents the Additional Amounts required by the terms of
such Securities. In the event that the Trustee or any Paying Agent, as the case may be, shall not
so receive the above-mentioned certificate, then the Trustee or such Paying Agent shall be entitled
(i) to assume that no such withholding or deduction is required with respect to any payment of
principal, premium or interest with respect to any Securities of a series until it shall have
received a certificate advising otherwise and (ii) to make all payments of principal, premium and
interest with respect to the Securities of a series without withholding or deductions until
otherwise advised. The Company hereby covenants and agrees to indemnify the Trustee and any Paying
Agent for, and to hold them harmless against, any loss, liability, cost or expense reasonably
incurred without negligence or willful misconduct on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers Certificate furnished
pursuant to this Section.
SECTION 1009.
Waiver of Certain Covenants
.
The Company may omit in any particular instance to comply with any term, provision or
condition set forth in Section 803 or Sections 1005 to 1007, inclusive, if before or after the time
for such compliance the Holders of at least a majority in principal amount of all Outstanding
Securities of the series affected, by Act of such Holders, 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 Company and the duties of the
Trustee in respect of any such term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
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 the terms of such Securities and in accordance with this Article.
SECTION 1102.
Election to Redeem; Notice to Trustee
.
The election of the Company to redeem any Securities shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of the Company, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal
amount of Securities of such series to be redeemed and shall deliver to the
67
Trustee such
documentation and records as shall enable the Trustee to select the Securities to be redeemed
pursuant to Section 1103. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers Certificate and Opinion of
Counsel evidencing compliance with such restriction.
SECTION 1103.
Selection by Trustee of Securities to Be Redeemed
.
If less than all the Securities of any series are to be redeemed, 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 such method
as the Trustee shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal of Securities of such series;
provided
,
however
, that no such partial redemption shall reduce the portion of the principal
amount of a Security not redeemed to less than the minimum authorized denomination for
Securities of such series established pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed.
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 Security redeemed or to
be redeemed only in part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 1104.
Notice of Redemption
.
Notice of redemption shall be given in the manner provided for in Section 106 not less than 30
nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall identify the Securities (including CUSIP number, if any) to be
redeemed and shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the Redemption Date
payable as provided in Section 1106, if any,
(3) if less than all the Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts) of the
particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice which relates to
such Security shall state that on and after the Redemption Date, upon surrender of such
Security, the Holder will receive, without charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining unredeemed,
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(5) that on the Redemption Date, the Redemption Price and accrued interest, if any, to
the Redemption Date payable as provided in Section 1106 will become due and payable upon
each such Security, or the portion thereof, to be redeemed and, if applicable, that interest
thereon will cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities maturing after the Redemption
Date, are to be surrendered for payment of the Redemption Price and accrued interest, if
any, and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Companys request, by the Trustee, in the name and at the expense
of the Company, upon delivery to the Trustee at least 40 days prior to the Redemption Date, or such
shorter period as may be satisfactory to the Trustee, of written direction to give, and a complete
copy of, such notice.
SECTION 1105.
Deposit of Redemption Price
.
Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and accrued
interest, if any, on, all the Securities which are to be redeemed on that date.
SECTION 1106.
Securities Payable on Redemption Date
.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein (together with
accrued interest, if any, to the Redemption Date), and from and after such date (unless the Company
shall default in the payment of the Redemption Price and accrued interest, if any) such Securities
shall, if the same were interest-bearing, cease to bear interest, and except to the extent provided
below, shall be void. Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date;
provided
,
however
, that installments of
interest on Securities whose Stated Maturity is on or prior to the Redemption Date shall 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 Record Dates according to their terms and the provisions of
Section 308.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) set forth in such Security.
SECTION 1107.
Securities Redeemed in Part
.
Any Security which is to be redeemed only in part (pursuant to the provisions of this Article
or of Article Twelve) shall be surrendered at a Place of Payment therefor (with, if the
69
Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holders
attorney duly authorized in writing), and the Company 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, 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 TWELVE
SINKING FUNDS
SECTION 1201.
Applicability of Article
.
Retirements of Securities of any series pursuant to any sinking fund shall be made in
accordance with the terms of such Securities and in accordance with this Article.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series 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 Securities of any series is herein referred to as
an optional sinking fund payment. If provided for by the terms of Securities of any series, the
cash amount of any mandatory 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 of any
series as provided for by the terms of Securities of such series.
SECTION 1202.
Satisfaction of Sinking Fund Payments with Securities
.
Subject to Section 1203, in lieu of making all or any part of any mandatory sinking fund
payment with respect to any Securities of a series in cash, the Company may at its option (1)
deliver to the Trustee Outstanding Securities of a series (other than any previously called for
redemption) theretofore purchased or otherwise acquired by the Company and/or (2) receive credit
for the principal amount of Securities of such series which have been previously delivered to the
Trustee by the Company or for Securities of such series which have been redeemed either at the
election of the Company 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 mandatory sinking fund payment with respect to the
Securities of the same series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series;
provided
,
however
, that such Securities
have not been previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
SECTION 1203.
Redemption of Securities for Sinking Fund
.
Not less than 60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers Certificate specifying the
70
amount of the next
ensuing sinking fund payment for that series pursuant to the terms of that series, 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 or crediting Securities of that series pursuant to Section 1202
(which Securities will, if not previously delivered, accompany such certificate) and whether the
Company intends to exercise its right to make a permitted optional sinking fund payment with
respect to such series. Such certificate shall be irrevocable and upon its delivery the Company
shall be obligated to make the cash payment or payments therein referred to, if any, on or before
the next succeeding sinking fund payment date. In the case of the failure of the Company to
deliver such certificate, the sinking fund payment due on the next succeeding sinking fund payment
date for that series shall be paid entirely in cash and shall be sufficient to redeem the principal
amount of such Securities subject to a mandatory sinking fund payment without the option to deliver
or credit Securities as provided in Section 1202 and without the right to make any optional sinking
fund payment, if any, with respect to such series.
Not more than 60 days before 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 Company 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
1106 and 1107.
Prior to any sinking fund payment date, the Company shall pay to the Trustee or a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) in cash a sum equal to any interest that will accrue to the date fixed for redemption
of Securities or portions thereof to be redeemed on such sinking fund payment date pursuant to this
Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund for any series of Securities, if
at any time the amount of cash to be paid into such sinking fund on the next succeeding sinking
fund payment date, together with any unused balance of any preceding sinking fund payment or
payments for such series, does not exceed in the aggregate $100,000, the Trustee, unless requested
by the Company, shall not give the next succeeding notice of the redemption of Securities of such
series through the operation of the sinking fund. Any such unused balance of moneys deposited in
such sinking fund shall be added to the sinking fund payment for such series to be made in cash on
the next succeeding sinking fund payment date or, at the written request of the Company, shall be
applied at any time or from time to time to the purchase of Securities of such series, by public or
private purchase, in the open market or otherwise, at a purchase price for such Securities
(excluding accrued interest and brokerage commissions, for which the Trustee or any Paying Agent
will be promptly reimbursed by the Company) not in excess of the principal amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301.
Applicability of Article
.
71
Repayment of Securities of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities and in accordance with this
Article.
SECTION 1302.
Repayment of Securities
.
Securities of any series subject to repayment in whole or in part at the option of the Holders
thereof will, unless otherwise provided in the terms of such Securities, be repaid at a price equal
to the principal amount thereof, together with interest, if any, thereon accrued to the Repayment
Date specified in or pursuant to the terms of such Securities. The Company covenants that on or
before the Repayment Date it will deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money sufficient to pay the principal (or, if so provided by the terms of the
Securities of any series, a percentage of the principal) of and (except if the Repayment Date shall
be an Interest Payment Date) accrued interest, if any, on, all the Securities or portions thereof,
as the case may be, to be repaid on such date.
SECTION 1303.
Exercise of Option
.
Securities of any series subject to repayment at the option of the Holders thereof will
contain an Option to Elect Repayment form on the reverse of such Securities. To be repaid at the
option of the Holder, any Security so providing for such repayment, with the Option to Elect
Repayment form on the reverse of such Security duly completed by the Holder (or by the Holders
attorney duly authorized in writing), must be received by the Company at the Place of Payment
therefor specified in the terms of such Security (or at such other place or places of which the
Company shall from time to time notify the Holders of such Securities) not earlier than 45 days nor
later than 30 days prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the principal amount of
such Security to be repaid, in increments of the minimum denomination for Securities of such
series, and the denomination or denominations of the Security or Securities to be issued to the
Holder for the portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for repayment at the
option of the Holder thereof may not be repaid in part if, following such repayment, the unpaid
principal amount of such Security would be less than the minimum authorized denomination of
Securities of the series of which such Security to be repaid is a part.
Except as otherwise may be provided by the terms of any Security providing for repayment at
the option of the Holder thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Company.
SECTION 1304.
When Securities Presented for Repayment Become Due and Payable
.
If Securities of any series providing for repayment at the option of the Holders thereof shall
have been surrendered as provided in this Article and as provided by or pursuant to the terms of
such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date therein specified,
and on and after such Repayment Date (unless the Company shall default in the
72
payment of such
Securities on such Repayment Date) such Securities shall, if the same were interest-bearing, cease
to bear interest and except to the extent provided below, shall be void. Upon surrender of any
such Security for repayment in accordance with such provisions, together with all coupons, if any,
appertaining thereto maturing after the Repayment Date, the principal amount of such Security so to
be repaid shall be paid by the Company, together with accrued interest, if any, to the Repayment
Date;
provided
,
however
, that, in the case of Securities, installments of interest,
if any, whose Stated Maturity is on or prior to the Repayment Date shall 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 Record Dates according to their terms and the provisions of Section 308.
If the principal amount of any Security surrendered for repayment shall not be so repaid upon
surrender thereof, such principal amount (together with interest, if any, thereon accrued to such
Repayment Date) shall, until paid, bear interest from the Repayment Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth in such Security.
SECTION 1305.
Securities Repaid in Part
.
Upon surrender of any Security which is to be repaid in part only, the Company shall execute
and the Trustee shall authenticate and deliver to the Holder of such Security, without service
charge and at the expense of the Company, a new Security or Securities of the same series, of any
authorized denomination specified by the Holder, in an aggregate principal amount equal to and in
exchange for the portion of the principal of such Security so surrendered which is not to be
repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401.
Companys Option to Effect Defeasance or Covenant Defeasance
.
The provisions of this Article Fourteen shall apply to each series of Securities, and the
Company may, at its option, effect defeasance of the Securities of or within a series under Section
1402, or covenant defeasance of the Securities of or within a series under Section 1403, in
accordance with the terms of such Securities and in accordance with this Article.
SECTION 1402.
Defeasance and Discharge
.
Upon the Companys exercise of the above option applicable to this Section with respect to any
series of Securities, the Company shall be deemed to have been discharged from its obligations with
respect to such series of Outstanding Securities on the date the conditions set forth in Section
1404 are satisfied (hereinafter, defeasance). For this purpose, such defeasance
73
means that the
Company shall be deemed to have paid and discharged the entire indebtedness represented by such
series of Outstanding Securities, which shall thereafter be deemed to be Outstanding only for the
purposes of Section 1405 and the other Sections of this Indenture referred to in (A) and (B) below,
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 Company, shall execute proper
instruments acknowledging the same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of such Outstanding Securities to
receive, solely from the trust fund described in Section 1404 and as more fully set forth in such
Section, payments in respect of the principal of (and premium, if any) and interest, if any, on
such Securities when such payments are due, (B) the Companys obligations with respect to such
Securities under Sections 305, 306, 307, 1002 and 1003 and with respect to the payment of
Additional Amounts, if any, on such Securities as contemplated by Section 1008, (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (D) this Article Fourteen.
Subject to compliance with this Article Fourteen, the Company may exercise its option under this
Section 1402 notwithstanding the prior exercise of its option under Section 1403 with respect to
such Securities.
SECTION 1403.
Covenant Defeasance
.
Upon the Companys exercise under Section 1401 of the option applicable to this Section 1403
with respect to any Securities of or within a series, the Company shall be released from its
obligations under Sections 1006 and 1007, and if specified pursuant to Section 301, its
obligations under any other covenant, with respect to such Outstanding Securities on and after
the date the conditions set forth in Section 1404 are satisfied (hereinafter, covenant
defeasance), and such Securities shall thereafter be deemed to be not Outstanding for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences
of any thereof) in connection with such covenants, but shall continue to be deemed Outstanding
for all other purposes hereunder (it being understood that such Securities shall not be deemed
Outstanding for financial accounting purposes). For this purpose, such covenant defeasance means
that, with respect to such Outstanding Securities, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of reference in any such covenant to any other provision herein or in any other document
and such omission to comply shall not constitute a Default or an Event of Default under Section
501(4) or Section 501(8) or otherwise, as the case may be, but, except as specified above, the
remainder of this Indenture and such Securities shall be unaffected thereby.
SECTION 1404.
Conditions to Defeasance or Covenant Defeasance
.
The following shall be the conditions to application of either Section 1402 or Section 1403 to
any series of Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of Section 608 who shall agree to
comply with the provisions of this Article Fourteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically pledged as
74
security
for, and dedicated solely to, the benefit of the Holders of such Securities, (A) an amount
of money or (B) Government Obligations applicable to such Securities 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 of principal
of and premium, if any, and interest, if any, on such Securities, money in an amount, or (C)
a combination thereof, sufficient, 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 (or other
qualifying trustee) to pay and discharge, (i) the principal of (and premium, if any) and
interest, if any, on such Outstanding Securities on the Stated Maturity (or Redemption Date,
if applicable) of such principal (and premium, if any) or installment of interest, if any,
and (ii) any mandatory sinking fund payments or analogous payments applicable to such
Outstanding Securities on the day on which such payments are due and payable in accordance
with the terms of this Indenture and of such Securities;
provided
that the Trustee
shall have been irrevocably instructed to apply such money or the proceeds of such
Government Obligations to said payments with respect to such Securities. Before such a
deposit, the Company may give to the Trustee, in accordance with Section 1102 hereof, a
notice of its election to redeem all or any portion of such Outstanding Securities at a
future date in accordance with the terms of the Securities of
such series and Article Eleven hereof, which notice shall be irrevocable. Such
irrevocable redemption notice, if given, shall be given effect in applying the foregoing.
(2) No Default or Event of Default with respect to such Securities shall have occurred
and be continuing on the date of such deposit or, insofar as paragraphs (6) and (7) of
Section 501 are concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(3) No event or condition shall exist that would prevent the Company from making
payments of the principal of (and premium, if any) or interest on the Securities on the date
of such deposit or at any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be deemed satisfied until
the expiration of such period).
(4) Such defeasance or covenant defeasance shall not result in a breach or violation
of, or constitute a default under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is bound.
(5) In the case of an election under Section 1402, the Company shall have delivered to
the Trustee an Opinion of Counsel stating that (x) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling, or (y) since the date of
execution of this Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such opinion 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.
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(6) In the case of an election under Section 1403, the Company shall have delivered to
the Trustee an Opinion of 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.
(7) In the case of an election under either Section 1402 or 1403, the Company shall
represent to the Trustee that the deposit made by the Company pursuant to its election under
Section 1402 or 1403 was not made by the Company with the intent of preferring the Holders
of Securities of any series over other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding creditors of the Company or others.
(8) The Company shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for relating to
either the defeasance under Section 1402 or the covenant defeasance under Section 1403 (as
the case may be) have been complied with.
SECTION 1405.
Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous
Provisions
.
Subject to the provisions of the last paragraph of Section 1003, all money and Government
Obligations (or other property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 1405, the Trustee) pursuant to Section 1404 in respect of such Outstanding 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 Paying Agent
(including the Company 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 premium,
if any) and interest, if any, but such money need not be segregated from other funds except to the
extent required by law.
The Company 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 1404 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 such Outstanding Securities.
Anything in this Article Fourteen to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon Company Request any money or Government Obligations
(or other property and any proceeds therefrom) held by it as provided in Section 1404 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 an equivalent defeasance or covenant defeasance, as
applicable, in accordance with this Article.
SECTION 1406.
Reinstatement
.
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If the Trustee or any Paying Agent is unable to apply any money in accordance with Section
1405 by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Companys obligations under this
Indenture and such Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 1402 or 1403, as the case may be, until such time as the Trustee or Paying
Agent is permitted to apply all such money in accordance with Section 1405;
provided
,
however
, that if the Company makes any payment of principal of (or premium, if any) or
interest, if any, on any such Security following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive such payment from
the money held by the Trustee or Paying Agent.
This Indenture 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 Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as
of the day and year first above written.
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ATMOS ENERGY CORPORATION
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By:
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/s/ LAURIE M. SHERWOOD
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Name:
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Laurie M. Sherwood
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Title:
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Vice President and Treasurer
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U.S.
BANK NATIONAL ASSOCIATION
, as Trustee
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By:
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/s/ RICHARD PROKOSCH
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Name: Richard Prokosch
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Title: Vice President
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Indenture