Exhibit 1.1
EXECUTION VERSION
SOUTHWEST
GAS CORPORATION
$250,000,000 4.875% Senior Notes due 2043
UNDERWRITING AGREEMENT
October 1,
2013
KeyBanc Capital Markets Inc.
Mitsubishi UFJ
Securities (USA), Inc.
U.S. Bancorp Investments, Inc.
as
Representatives of the Underwriters named in Schedule 1
c/o KeyBanc Capital Markets Inc.
127 Public Square
Cleveland, OH 44114
Mitsubishi UFJ Securities (USA), Inc.
1633 Broadway, 29
th
Floor
New York, New York 10019
U.S. Bancorp Investments, Inc.
214 N. Tryon Street, 26
th
Floor
EX-NC-WSTC
Charlotte, North Carolina 28202
Ladies and Gentlemen:
Southwest Gas Corporation, a California corporation (the “
Company
”), proposes to issue and sell to the several
underwriters (the “
Underwriters
”) named in Schedule 1 attached to this agreement (this “
Agreement
”) acting severally and not jointly, the respective amounts set forth in such Schedule 1 of $250,000,000
aggregate principal amount of its 4.875% Senior Notes due 2043 (the “
Securities
”). The Securities will be issued pursuant to an Indenture dated as of October 4, 2013 (the “
Indenture
”) between the Company and
The Bank of New York Mellon Trust Company, N.A., as trustee (the “
Trustee
”). This is to confirm the agreement concerning the purchase of the Securities from the Company by the Underwriters.
1.
Representations, Warranties and Agreements of the Company.
The Company represents, warrants and agrees that:
(a) A Registration Statement (as defined below) on Form S-3 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 (together, 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 such Registration Statement and any amendment thereto have been
delivered by the Company to KeyBanc Capital Markets Inc.,
Mitsubishi UFJ Securities (USA), Inc. and U.S. Bancorp Investments, Inc., as the representatives (“
you
” or the “
Representatives
”) of the Underwriters. For the
avoidance of doubt, the availability to the Underwriters of such Registration Statement and any amendment thereto on the Commission’s EDGAR database shall satisfy the Company’s delivery obligation with respect thereto. As used in this
Agreement:
(i) “
Applicable Time
” means October 1, 2013 at 1:35 p.m. (New York City time);
(ii) “
Effective Date
” means any date as of which any part of such registration statement relating to the Securities became,
or is deemed to have become, effective under the Securities Act in accordance with the Rules and Regulations;
(iii) “
Issuer Free
Writing Prospectus
” means each “
issuer free writing prospectus
” (as defined in Rule 433(h) 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, including each “road show” (as defined in Rule 433(h) of the Rules and Regulations) relating to the offering of the Securities that is a “written communication” (as defined in Rule 405 under the
Rules and Regulations);
(iv) “
Preliminary Prospectus
” means the preliminary prospectus, dated October 1, 2013,
specifically relating to the Securities that is included in the Registration Statement at the time of its effectiveness and that omits Rule 430 Information;
(v) “
Pricing Disclosure Package
” means, as of the Applicable Time, the Preliminary Prospectus, together with the information
included in Schedule 2 hereto and each Issuer Free Writing Prospectus filed or used by the Company on or before the Applicable Time, other than any road show that is an Issuer Free Writing Prospectus;
(vi) “
Prospectus
” means the final prospectus, dated October 1, 2013 relating to the Securities, as filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations (“
Rule 424(b)
”); and
(vii)
“
Registration Statement
” means, collectively, the various parts of the registration statement on Form S-3 relating to the Securities (File No. 333-191486), each as amended as of the Effective Date for such part, including the
Preliminary Prospectus or the Prospectus, the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the time of its effectiveness and all exhibits to such registration
statement (“
Rule 430 Information
”).
Any reference to the Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Form S-3 under the Securities Act as of the date of the Preliminary Prospectus or the Prospectus, as the case may be; any reference to the Registration Statement shall be deemed to
refer to and include the documents incorporated by reference therein pursuant to Form S-3 under the Securities Act as of the date of this Agreement; and all references to information that is “included” or “contained” in the
Preliminary Prospectus, the Prospectus, the Registration Statement or the Pricing Disclosure Package (and any similar references) shall mean and include all information that is incorporated
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by reference therein pursuant to Form S-3 under the Securities Act. Any reference to any amendment or supplement to the 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 the Preliminary Prospectus or the Prospectus, as the case may be, and incorporated by reference in the
Preliminary Prospectus or the Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to any document filed under the Exchange Act after the date of this Agreement that is
incorporated by reference in the Registration Statement. The Commission has not issued any order preventing or suspending the use of the 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 Company’s knowledge, 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) The Company has been since the time of the initial filing of the Registration Statement and continues to be 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 or date. 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 Closing Date (as defined in Section 4 hereof).
(c) The Registration Statement conformed and will conform in all material
respects on the Effective Date and on the Closing 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, the Rules and
Regulations and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “
Trust Indenture Act
”). The Prospectus will conform, in all material respects when filed with
the Commission pursuant to Rule 424(b) and on the Closing Date to the requirements of the Securities Act and the Rules and Regulations. The documents incorporated by reference in the 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 or the Securities 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 (i) written information furnished to the Company through the Representatives by or on behalf of any Underwriters specifically for inclusion therein, which information is specified in Section 8(e) hereof and
(ii) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (the “
Form T-1
”) of the Trustee under the Trust Indenture Act.
(e) The Prospectus does not and will not, as of its date and on the Closing Date, contain an untrue statement of a material fact or omit to
state a material fact required to be
3
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 Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriters specifically for inclusion
therein, which information is specified in Section 8(e) hereof.
(f) The documents incorporated by reference in the 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.
(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 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 Representatives by or on behalf of any Underwriters specifically for inclusion therein, which information is specified in
Section 8(e) hereof.
(h) Each Issuer Free Writing Prospectus (including, without limitation, any road show that is a free writing
prospectus under Rule 433 of the Rules and Regulations), 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;
provided that
no representation or warranty is made as to information contained in or omitted from
any Issuer Free Writing Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriters specifically for inclusion therein, which information is
specified in Section 8(e) hereof.
(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 or will comply, as applicable, with any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the
Rules and Regulations. 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 Representatives (such consent not to be unreasonably delayed or
withheld). The Company has retained in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses that were not required to be filed with the Commission pursuant to the Rules and Regulations. No Issuer Free Writing Prospectus
conflicted with or will conflict with the information in the Registration Statement, the Preliminary Prospectus or the Prospectus.
(j)
Each of the Company and its subsidiaries listed on Schedule 3 hereto (herein called, collectively, the “
Significant Subsidiaries
”) (A) has been duly incorporated,
4
organized or formed and is validly existing in good standing under the laws of the jurisdiction of its incorporation, organization or formation, with full power and authority to own, lease and
operate its properties and conduct its business; and (B) is duly registered and qualified to do business and is in good standing in each jurisdiction in which the character of the business conducted by it or the location of the properties
owned, leased or operated by it make such registration or qualification necessary, except, as it relates to this clause (B), for such jurisdictions where the failure to so register, qualify or to be in good standing would not, individually or
in the aggregate, have a Material Adverse Effect (as defined below). Except for the subsidiaries listed on Schedule 4 hereto, the Company does not have any subsidiaries or control, directly or indirectly, any corporation, association or other entity
other than the Significant Subsidiaries. Other than the Significant Subsidiaries, (i) no subsidiary of the Company is a “significant subsidiary” (as defined in Rule 405 of the Rules and Regulations) and (ii) no two or more
subsidiaries of the Company considered in the aggregate constitute a “significant subsidiary” (as defined in Rule 405 of the Rules and Regulations).
(k) The authorized, issued and outstanding common stock, par value $1.00 per share (the “
Common Stock
”), and other capital
stock of the Company is as set forth in each of the Preliminary Prospectus and the Prospectus (except for subsequent issuances, if any, of Common Stock pursuant to employee or director equity incentive or stock purchase plans). The shares of issued
and outstanding Common Stock have been duly authorized, validly issued, fully paid and non-assessable and were issued in compliance with federal and state securities laws. All of the outstanding shares of capital stock of each Significant Subsidiary
that is a corporation have been duly authorized and validly issued and are fully paid and non-assessable. Except as may otherwise be disclosed in the Pricing Disclosure Package and in the Prospectus, all of the outstanding shares of capital stock,
partnership interests or other ownership interests of each Significant Subsidiary are owned directly or indirectly by the Company, free and clear of any claim, lien, encumbrance, security interest, restriction upon voting or transfer, preemptive
rights or any other claim of any third party (collectively, “
Liens
”), except such Liens as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the condition (financial or
otherwise), results of operations, properties or business of the Company and its subsidiaries taken as a whole or on the performance by the Company of this Agreement (a “
Material Adverse Effect
”).
(l) The Indenture has been duly authorized by the Company and, upon effectiveness of the Registration Statement, was or will have been duly
qualified under the Trust Indenture Act and, when duly executed and delivered in accordance with its terms by each of the parties thereto, will constitute a valid and legally binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, usury, stay, extension or other similar laws affecting the enforcement of creditors’
rights generally or by general equitable principles relating to enforceability (collectively, the “
Enforceability Exceptions
”).
(m) The Securities have been duly authorized by the Company and, when duly executed, authenticated, issued and delivered as provided in the
Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in
accordance with their terms, subject to the Enforceability Exceptions.
5
(n) The Company has all requisite corporate power and authority to execute, deliver and perform
its obligations under this Agreement, the Securities and the Indenture (collectively, the “
Transaction Documents
”). This Agreement has been duly authorized, executed and delivered by the Company.
(o) None of the execution, delivery and performance of the Transaction Documents by the Company, the issuance, sale and delivery of the
Securities by the Company, compliance by the Company with any of the provisions of the Transaction Documents nor the application of the proceeds from the sale of the Securities as described under “Use of Proceeds” in the Pricing Disclosure
Package and the Prospectus will (i) conflict with or result in a breach or violation of any agreement, indenture or other instrument to which the Company or any of its subsidiaries is a party or by which any of them is bound, or to which any of
their properties is subject; (ii) result in the creation or imposition of any Lien upon any property or asset of the Company or any of its subsidiaries; (iii) result in a breach or violation of, or constitute a default under, the articles
of incorporation, by-laws, partnership agreement or other organizational documents of the Company or any of its Significant Subsidiaries; or (iv) violate any law, rule, administrative regulation or decree of any court or any governmental agency
or body having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, except, with respect to clauses (i), (ii) and (iv), conflicts, breaches, Liens, defects or violations that would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.
(p) No permit, consent, approval, authorization or order
of any court, governmental agency or body (including the Federal Energy Regulatory Commission) or financial institution is required for the issue and sale of the Securities, the execution, delivery and performance of the Transaction Documents by the
Company, or the application of the proceeds from the sale of the Securities as described under “Use of Proceeds” in the Pricing Disclosure Package and the Prospectus, except (i) for the registration of the Securities under the
Securities Act; (ii) for the qualification of the Indenture under the Trust Indenture Act; (iii) from the Public Utilities Commission of the State of California; (iv) such consents, approvals, authorizations, orders, filings,
registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Securities through the Underwriters; and (v) where the failure to obtain
such permits, consents, approvals, authorizations, orders, filings, registrations or qualifications would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(q) There are no contracts, agreements or understandings between the Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Securities Act.
6
(r) 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.
(s) Since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package and the
Prospectus, neither the Company nor any of its subsidiaries has (i) sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree; (ii) issued or granted any securities (other than the shares of capital stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the
date hereof or pursuant to currently outstanding equity awards, warrants or rights not issued under one of those plans), except as may otherwise be disclosed in the Pricing Disclosure Package and in the Prospectus; (iii) incurred any liability
or obligation, direct or contingent, other than liabilities and obligations that were incurred in the ordinary course of business, except as may otherwise be disclosed in the Pricing Disclosure Package and in the Prospectus; (iv) entered into
any transaction not in the ordinary course of business, except as may otherwise be disclosed in the Pricing Disclosure Package and in the Prospectus; (v) declared or paid any dividend on its capital stock (other than Common Stock dividends paid
on March 1, June 3 and September 3, 2013 and a Common Stock dividend declared on September 17, 2013 and to be paid on December 2, 2013); or (vi) made or experienced any change in the capital stock or long-term debt
of the Company or any of its subsidiaries or any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), results of operations, properties or business of the Company and its
subsidiaries taken as a whole, in each case in this paragraph (s) (except clause (v) hereof) as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(t) The financial statements (including the related notes and supporting schedules) included or incorporated by reference in the Pricing
Disclosure Package and the Prospectus present fairly in all material respects the consolidated financial condition, results of operations and cash flows of the entities purported to be shown thereby at the dates and for the periods indicated
(subject to year-end adjustments in the case of unaudited interim financial statements) and have been prepared in accordance with U.S. generally accepted accounting principles (“
GAAP
”) applied on a consistent basis throughout the
periods indicated and conform in all material respects with GAAP, except as otherwise noted therein; and the supporting schedules included or incorporated by reference in the Registration Statement present fairly in all material respects the
information required to be stated therein. The interactive data in eXtensbile Business Reporting Language included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package, and the Prospectus fairly presents the
information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(u) PricewaterhouseCoopers LLP, who have reported on certain financial statements of the Company included or incorporated by reference in the
Pricing Disclosure Package and the Prospectus and whose report is incorporated by reference in the Preliminary Prospectus and the Prospectus, are independent registered public accountants as required by the Securities Act and the Rules and
Regulations, and were independent public accountants as
7
required by the Securities Act and the Rules and Regulations during the periods covered by the financial statements on which they reported contained or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the Prospectus.
(v) The statistical and market-related data, if any, included
in the Pricing Disclosure Package and the Prospectus and the consolidated financial statements of the Company and its subsidiaries included or incorporated by reference in the Pricing Disclosure Package and the Prospectus are based on or derived
from sources that the Company believes to be reliable and accurate in all material respects.
(w) Neither the Company nor any of its
subsidiaries is, and as of the Closing Date and, after giving effect to the offer and sale of the Securities and the application of the proceeds therefrom as described under “Use of Proceeds” in the Pricing Disclosure Package and the
Prospectus, none of them will be, an “investment company” within the meaning of such term under the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.
(x) There is no litigation or governmental proceeding to which the Company or any of its subsidiaries is a party or to which any property or
assets of the Company or any of its subsidiaries is subject or which is pending or, to the knowledge of the Company, threatened against the Company or any of its subsidiaries that would, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect.
(y) There are no statutes or regulations, legal or governmental proceedings or contracts or other
documents that would be required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus (in each case including, without limitation, the documents incorporated by reference therein) or, in the case of
contracts or other documents, to be filed as exhibits to the Registration Statement, that are not described and filed as required under applicable law.
(z) To the knowledge of the Company, no labor disturbance by or dispute with the employees of the Company or any of its subsidiaries exists or
is imminent that would reasonably be expected to have a Material Adverse Effect.
(aa) (i) Except as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect, the Company and each of its subsidiaries and any “employee benefit plan” (as defined under the U.S. Employee Retirement Income Security Act of 1974, as amended
(“
ERISA
,” which term, as used herein, includes the regulations and published interpretations thereunder)) established or maintained by the Company, any of its subsidiaries or their ERISA Affiliates (as defined below) are in
compliance in all material respects with ERISA and, to the knowledge of the Company, each “multiemployer plan” (as defined in Section 4001 of ERISA) to which the Company, its subsidiaries or an ERISA Affiliate contributes (a
“
Multiemployer Plan
”) is in compliance in all material respects with ERISA. “
ERISA Affiliate
” means, with respect to the Company or a subsidiary, any member of any group of organizations described in
Section 414 of the U.S. Internal Revenue Code of 1986, as amended (the “
Code
,” which term, as used herein, includes the regulations and published interpretations thereunder) of which the Company or such subsidiary is a member.
No
8
“reportable event” (as defined under ERISA) has occurred or is reasonably expected to occur with respect to any “employee benefit plan” established or maintained by the
Company, any of its subsidiaries or any of their ERISA Affiliates. Neither the Company, any of its subsidiaries nor any of their ERISA Affiliates has incurred or reasonably expects to incur any liability under (i) Title IV of ERISA (other than
contributions to the “employee benefit plan” or premiums to the U.S. Pension Benefit Guaranty Corporation in the ordinary course and without default) or (ii) Sections 412, 4971, 4975 or 4980B of the Code or pursuant to
Section 406 of ERISA. Each “employee benefit plan” established or maintained by the Company, any of its subsidiaries or any of their ERISA Affiliates that is intended to be qualified under Section 401 of the Code is so qualified
and nothing has occurred, whether by action or by failure to act, which would materially adversely affect such qualification.
(bb) The
Company and each of its subsidiaries have filed all material federal, state, local and foreign tax returns required to be filed through the date hereof, subject to permitted extensions, which returns are complete and correct in all material
respects, and have paid all taxes due, and neither the Company nor any subsidiary is in default in the payment of any taxes which were payable pursuant to said returns or any assessments with respect thereto, except for any such taxes or assessments
which are being contested in good faith by appropriate proceedings and for which appropriate reserves, if any, have been established in accordance with GAAP and statutory accounting principles, and no tax deficiency has been determined adversely to
the Company or any of its subsidiaries. The Company does not have any knowledge of any tax deficiencies that have been, or could reasonably be expected to be, asserted against the Company that would, in the aggregate, reasonably be expected to have
a Material Adverse Effect.
(cc) Neither the Company nor any of its subsidiaries is in violation of its respective articles of
incorporation or by-laws or other organizational documents, and neither the Company nor any of its subsidiaries (i) is in default, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which it is a party or by which it is bound or to which any of its
properties or assets is subject or (ii) is in violation of any law, ordinance, rule, regulation or order of any court or governmental agency or body having jurisdiction over it or its property or assets, except in the case of clauses
(i) and (ii), to the extent any such conflict, breach, violation or default would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(dd) The Company is and, to the knowledge of the Company, its officers and directors are, in compliance in all material respects with the
Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith.
(ee) (i) Each of the Company and its
subsidiaries holds such permits, licenses, patents, franchises, certificates of need, authorities and other approvals or authorizations from governmental or regulatory authorities (collectively, the “
Permits
”) which are necessary
under applicable law to the conduct of its businesses as presently operated and to own its properties and conduct its businesses in the manner described in the Pricing Disclosure Package and the Prospectus, except where the failure to obtain such
Permits would not, individually or in the
9
aggregate, reasonably be expected to have a Material Adverse Effect; (ii) each of the Company and its subsidiaries has fulfilled and performed all of its obligations necessary to maintain
the Permits, except where the failure to fulfill or perform such obligations would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (iii) there is no past, pending or, to the knowledge of the
Company or any of its subsidiaries, threatened action, suit, proceeding or investigation that may reasonably be expected to lead to the revocation, termination or suspension of any Permit, except where such revocation, termination or suspension
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received notice of any revocation or modification of any such Permits or has any reason to
believe that any such Permits will not be renewed in the ordinary course, except where such revocation, modification or non-renewal would not reasonably be expected to result in a Material Adverse Effect.
(ff) The Company and its subsidiaries own or possess, or have the ability to acquire, all 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 and trade names currently employed by them in connection with the
business now operated by them, except where the failure to own, possess or have the ability to acquire such 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 and trade names would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and none of the Company nor its
subsidiaries has received any notice of infringement of or conflict with asserted rights of others with respect to any of the foregoing which, individually or in the aggregate, if subject to any unfavorable decision, ruling or finding, would
reasonably be expected to have a Material Adverse Effect.
(gg) The Company and its subsidiaries (i) are in compliance with any and
all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“
Environmental
Laws
”); (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and (iii) are in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(hh) Neither the Company nor any of its
subsidiaries, nor, to the knowledge of the Company, any director, officer, agent, employee or other person acting on behalf of the Company or any of its subsidiaries, has (i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; or (iii) made any bribe or other
unlawful payment.
(ii) Neither the Company nor any of its subsidiaries nor, to the Company’s knowledge, any director, officer,
agent, employee or affiliate of the Company or any of its
10
subsidiaries has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder (the “
FCPA
”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of
any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate
for foreign political office, in contravention of the FCPA, and the Company, its subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies
and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(jj) The
operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any applicable governmental agency (collectively, the
“
Money Laundering Laws
”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws
is pending or, to the knowledge of the Company, threatened.
(kk) Neither the Company nor any of its subsidiaries nor, to the knowledge of
the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department
(“
OFAC
”); and the Company will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the
purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(ll) The Company has not
distributed and, prior to the later to occur of the Closing 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 the Preliminary
Prospectus, the Prospectus and any Issuer Free Writing Prospectus to which the Representatives have consented in accordance with Section 1(i) or 5(a)(vi) hereof (such consent not to be unreasonably withheld or delayed).
(mm) None of the Company, nor its subsidiaries or affiliates, has taken nor will take, directly or indirectly, any action designed to or that
has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(nn) The Company and its subsidiaries, on a consolidated basis, maintain systems of internal control over financial reporting (as such term is
defined in Rule 13a-15(f) under the Exchange Act) that have been designed by, or under the supervision of, their respective principal executive and principal financial officers, to provide reasonable assurance regarding the
11
reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP and statutory accounting principles. The Company and its subsidiaries,
on a consolidated basis, maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and statutory accounting practices and to maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; (iv) interactive data in eXtensbile Business Reporting Language included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package, and the
Prospectus is prepared in accordance with the Commission’s rules and guidelines applicable thereto, and (v) recorded assets are compared with existing assets at reasonable intervals and appropriate action is taken with respect to any
differences.
(oo) The Company and its subsidiaries, on a consolidated basis, have established and maintain disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that have been designed to ensure that material information relating to the Company and its subsidiaries required to be disclosed in the reports the Company files or
submits under the Exchange Act is made known to the Company’s principal executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures are effective in all material respects to
perform the functions for which they were established.
(pp) Since the date of the latest audited financial statements incorporated by
reference in the Preliminary Prospectus, (i) the Company has not been advised of any fraud, whether or not material, that involves management or other employees who have a significant role in the internal controls of the Company and each of its
subsidiaries and (ii) there have been no significant changes in internal controls or in other factors that would significantly affect internal controls, including any corrective actions with regard to significant deficiencies and material
weaknesses requiring disclosure in the Company’s most recently filed Annual Report on Form 10-K.
(qq) The Company and each of its
subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them, in each case free and clear of all Liens, except where the failure to have such good and marketable
title or the existence of any such Liens would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. All assets held under lease by the Company and its subsidiaries are held by them under valid, subsisting
and enforceable leases with such exceptions as do not materially interfere with the use made and proposed to be made of such assets by the Company and its subsidiaries, except where the failure of any such leases to be valid, subsisting or
enforceable or the existence of such exceptions would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(rr) No relationship, direct or indirect, exists between or among the Company, on the one hand, and the directors, officers, shareholders,
customers or suppliers of the Company, on the other hand, that is required to be described in the Pricing Disclosure Package or the Prospectus which is not so described.
12
(ss) The statements set forth in the Preliminary Prospectus and the Prospectus under the captions
“Description of Other Indebtedness,” “Description of the Notes,” and “Certain Material United States Federal Tax Considerations,” insofar as they purport to describe the Securities, and other documents and legal matters
referred to therein, are accurate in all material respects.
(tt) Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against any of them or the Underwriters for a brokerage commission, finder’s fee or like payment in connection with the
offering and sale of the Securities.
(uu) None of the proceeds from the sale of the Securities has been or will be paid to the
Underwriters (except for the payment of the commissions pursuant to this Agreement) or, to the knowledge of the Company, to any affiliate of the Underwriters; and the Company is not an “affiliate” (as defined in FINRA Rule 5121) of any
member of the Financial Industry Regulatory Authority (“
FINRA
”).
(vv) The Company and its subsidiaries are in compliance
with, and conduct their respective businesses in conformity with, all applicable state, federal, local and foreign laws and regulations relating to the operation and ownership of a public utility, including, without limitation, those relating to the
distribution and transmission of natural gas, except to the extent that any failure so to comply or conform would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(ww) Each of the Company and its subsidiaries believes they are insured with policies in such amounts and with such deductibles and covering
such risks as are generally deemed adequate and customary for their businesses, including, but not limited to, insurance against accidents, third-party injury or general liability and insurance covering certain real and personal property owned or
leased by the Company and each of its subsidiaries against theft, damage, destruction, acts of vandalism and all other risks customarily insured against. All policies of insurance insuring the Company or any of its subsidiaries or their respective
businesses, assets, employees, officers and directors are in full force and effect; the Company and its subsidiaries are in compliance with the terms of such policies and instruments in all material respects; and there are no claims by the Company
or any of its subsidiaries, that individually or in the aggregate are material to the Company and its subsidiaries taken together as a whole, under any such policy or instrument as to which any insurance company is denying liability or defending
under a reservation of rights clause; and, except as set forth in the Pricing Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries has been refused any insurance coverage sought or applied for. The Company has no
reason to believe that it or any of its subsidiaries will not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary or
appropriate to conduct its business as now conducted and at a cost that would not reasonably be expected to have a Material Adverse Effect.
Any certificate signed by any officer of the Company and delivered to the Underwriters or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the Company to each Underwriter as to matters covered thereby.
13
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 the Securities at a price equal to 99.047% of the aggregate principal amount thereof, plus accrued interest, if any, from October 4,
2013, to the several Underwriters, and each of the Underwriters, severally and not jointly, agrees to purchase the principal amount of the Securities set forth opposite that Underwriter’s name in Schedule 1 hereto.
The Company shall not be obligated to deliver any of the Securities to be delivered on the Closing Date, except upon payment for all such
Securities to be purchased on such Closing Date as provided herein.
3.
Offering of Securities by the Underwriters
. Upon
authorization by the Representatives 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 and payment for the Securities shall be made at 10:00 a.m. New York City
time, on October 4, 2013 or at such other date or place as shall be determined by agreement between the Representatives and the Company. This date and time are sometimes referred to as the “
Closing Date
.” Delivery of the
Securities shall be made to the Representatives against payment by the several Underwriters through the Representatives of the respective aggregate purchase prices of the Securities being sold by 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 Depository Trust Company unless the Representatives shall otherwise instruct.
5.
Further
Agreements of the Company and the Underwriters
.
(a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) not later
than the Commission’s 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 Closing Date
except as provided herein; to advise the Representatives in writing, 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
Representatives with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 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 Representatives in writing, promptly after it
14
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 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 reasonable best
efforts to obtain its withdrawal;
(ii) To pay the applicable Commission filing fees relating to the Securities within the time required
by Rule 456(b)(1) of the Rules and Regulations without regard to the proviso therein;
(iii) To deliver promptly to the
Representatives such number of written or electronic copies of the following documents as the Representatives 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, the computation of ratio of earnings to fixed charges and the portions of the annual report to shareholders incorporated by reference into the Company’s
Form 10-K
for the year ended December 31, 2012), (B) the Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free Writing Prospectus and
(D) any document incorporated by reference in the Preliminary Prospectus or the Prospectus, it being understood that with regard to (A) and (D) above, availability to the Underwriters on the Commission’s EDGAR database of the
documents referenced therein shall satisfy any such delivery obligations with respect thereto; 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, the Exchange Act or the Trust Indenture Act, to notify the Representatives in writing and, upon their request, to file such
document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus that will correct such
statement or omission or effect such compliance;
(iv) 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, be required by the Securities Act or requested by the Commission,
provided, however, that
the Company shall consider in good faith any recommendations of the
Representatives related thereto;
15
(v) 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 Representatives and counsel for the Underwriters and
obtain the written consent (which written consent may be communicated by electronic communication) of the Representatives to the filing (such consent not to be unreasonably delayed or withheld);
(vi) Not to make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus without the prior written
consent (including written consent provided via electronic mail) of the Representatives (such consent not to be unreasonably delayed or withheld);
(vii) To comply with all applicable requirements of Rule 433 of the Rules and Regulations with respect to any Issuer Free Writing
Prospectus; 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
Pricing Disclosure Package 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 Representatives and, upon their reasonable request, to file such document and to prepare and furnish without
charge to each Underwriter as many copies as the Representatives 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;
(viii) As soon as practicable after the Effective Date and in any event not later than 16 months after the date hereof, to make
generally available to the Company’s security holders and to deliver to the Representatives 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;
(ix) Promptly from time to time to take such action as the Underwriters may reasonably request to qualify the
Securities for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriters may reasonably request, and to maintain such qualifications in effect 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) file a general
consent 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; and
(x) To apply the net proceeds from the sale of the Securities being sold by the Company as set forth in the Preliminary Prospectus and the
Prospectus.
(b) Each Underwriter severally represents and agrees that, unless it obtains the prior written consent (including written
consent provided via electronic mail) of the Company and the Representatives, it has not made and will not make any offer relating to the Securities
16
that would constitute an “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations, or that would otherwise constitute a “free writing
prospectus,” as defined in Rule 405 of the Rules and Regulations, required to be filed with the Commission.
6.
Expenses
.
The Company will pay and bear all costs and expenses incident to the performance of its obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and any
schedules or exhibits and any documents incorporated therein by reference), as originally filed and as amended, the Pricing Disclosure Package and the Prospectus and any amendments or supplements thereto, and the cost of furnishing copies thereof in
accordance with Section 5(a)(iii) of this Agreement thereto to the Underwriters; (ii) the preparation, printing and distribution of this Agreement, the Indenture, the Securities, the blue sky survey and the legal investment survey;
(iii) the delivery of the Securities to the Underwriters; (iv) the fees and disbursements of the Company’s counsel and accountants; (v) the qualification of the Securities under the applicable securities laws in accordance with
Section 5(a)(ix) and any filing for review of the offering with FINRA; (vi) any fees charged by rating agencies for rating the Securities; and (vii) the fees and expenses of the Trustee, including the fees and disbursements of counsel
for the Trustee, in connection with the Indenture and the Securities.
7.
Conditions of Underwriters’ Obligations
. The
respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the date of the Prospectus and on the Closing 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(a)(i) and Section 5(a)(iv) hereof; the Company shall have complied with all filing requirements applicable to 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 threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or any document incorporated by reference therein 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) No Underwriter shall have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement, the
Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the reasonable opinion of Ballard Spahr LLP, counsel for the Underwriters, is material or omits to state a fact
which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, the
Indenture, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably
17
satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to
enable them to pass upon such matters.
(d) Morrison & Foerster LLP shall have furnished to the Underwriters its written opinion
and its separate negative assurance letter, as counsel to the Company, addressed to the Underwriters and delivered and dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, addressing the matters set forth on
Exhibit A attached hereto.
(e) Josh M. Westerman, Associate General Counsel of the Company, shall have furnished to the Underwriters his
written opinion addressed to the Underwriters and delivered and dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, addressing the matters set forth on Exhibit B attached hereto.
(f) The Representatives shall have received from Ballard Spahr LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At
the time of execution of this Agreement, the Representatives shall have received from PricewaterhouseCoopers LLP a letter, in form and substance reasonably satisfactory to the Representatives, addressed to the Underwriters and the Company and dated
the date hereof (i) confirming that they are independent registered 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
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 PricewaterhouseCoopers
LLP referred to in the preceding paragraph and delivered to the Representatives concurrently with the execution of this Agreement (the “
initial letter
”), PricewaterhouseCoopers LLP shall have furnished to the Representatives a
letter (the “
bring-down letter
”) of such accountants, addressed to the Underwriters and the Company and dated the Closing 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; (iii) covering financial information in the Prospectus; and (iv) confirming in all material respects the conclusions and findings set
forth in the initial letter.
18
(i) The Company shall have furnished to the Representatives a certificate, dated the Closing
Date, of any vice-president of the Company and the principal financial officer, vice president/treasurer or principal accounting officer of the Company satisfactory to the Representatives to the effect that:
(i) The representations and warranties of the Company in Section 1 that are qualified by materiality or similar qualifiers are true and
correct on and as of the Closing Date and the representations and warranties of the Company in Section 1 that are not qualified by materiality or similar qualifiers are true and correct in all material respects on and as of the Closing Date,
and the Company has complied in all material respects with all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing 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) They have examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (1) the
Registration Statement, as of each Effective Date, (2) the Prospectus, as of its date and as of the Closing Date, and (3) the Pricing Disclosure Package, as of the Applicable Time and as of the Closing Date, did not and do not contain any
untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances
under which they were made) not misleading.
(j) Except as described in the Pricing Disclosure Package and the Prospectus,
(i) neither the Company nor any of its subsidiaries shall have sustained, since the date of the latest audited financial statements incorporated by reference in the Pricing Disclosure Package, any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the capital stock (other
than Common Stock dividends paid on March 1, June 3 and September 3, 2013 and a Common Stock dividend declared on September 17, 2013 and to be paid on December 2, 2013) or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, business or properties of the Company and its subsidiaries taken
as a whole, the effect of which, in any such case described in clause (i) or (ii), is, individually or in the aggregate, in the reasonable judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable to
proceed with the offering or sale of the Securities being delivered on the Closing Date on the terms and in the manner contemplated in the Pricing Disclosure Package, the Prospectus or this Agreement.
19
(k) Subsequent to the execution and delivery of this Agreement, (i) no downgrade in the
rating of the Company or its financial strength or the rating of any of the Company’s securities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act (the
“
Rating Agencies
”) shall have occurred or be pending and (ii) no Rating Agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Company or the
Company’s financial strength or its rating of any of the Company’s securities.
(l) 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 NASDAQ National 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 general moratorium on commercial banking activities shall have been declared by federal or New York state authorities; or
(iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States, there shall have been a declaration of a national emergency or war by the United States, 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), as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the offering or sale of the Securities being delivered on the Closing Date on the terms and in
the manner contemplated in the Pricing Disclosure Package, the Prospectus or this Agreement.
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 affiliates, directors, officers, members and employees and each
person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities 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 action relating to purchases and sales of Securities), to which such Underwriter or such affiliate, director, officer, member, 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) the 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 “issuer information” (as defined in Rule 433 of the Rules and
Regulations) used or referred to in any “free writing prospectus” (as defined in Rule 405 of the Rules and Regulations) used or referred to by any Underwriter (“
Permitted Issuer Information
”) or (ii) the omission
or alleged omission to state in the Preliminary Prospectus, the Registration Statement, the Prospectus, any
20
Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Permitted Issuer Information, any material fact required to be stated therein or necessary to make the
statements therein, (except in the case of the Registration Statement) in the light of the circumstances under which they were made, 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 the Underwriter or such affiliate, 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 the Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus, or in any amendment or supplement thereto, in reliance upon and in
conformity with written information concerning such Underwriter furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information consists solely of the information
specified in Section 8(e) hereof. The foregoing indemnity agreement is in addition to any liability which the Company may otherwise have to any Underwriter or to any affiliate, director, officer, member, 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, from and against any loss, claim, damage or liability, 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 the Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus, or in any amendment or supplement thereto, or (ii) the omission or alleged omission to state in the
Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or in any amendment or supplement thereto, any 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, 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 Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information consists solely of the information specified in Section 8(e) hereof, and shall
reimburse the Company, each of its directors, officers, employees or controlling persons promptly upon demand for any legal or other expenses reasonably incurred by the Company or such 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. 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 of the Company.
(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
21
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 one 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 parties, jointly, shall have the right to employ one counsel to represent jointly the indemnified
party and those other indemnified parties and their respective directors, officers, members, employees and controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought under this
Section 8 if (i) the indemnified party and the indemnifying party shall have so mutually agreed; (ii) the indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified party;
(iii) the indemnified party and its directors, officers, members, employees and controlling persons shall have reasonably concluded that there may be legal defenses available to them that are different from or in addition to those available to
the indemnifying party; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the indemnified parties or their respective directors, officers, members, employees or controlling persons, on the one hand,
and the indemnifying party, on the other hand, and representation of both sets of parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and in any such event the fees and expenses of such
separate counsel shall be paid by the indemnifying party as incurred. No indemnifying party shall (i) without the prior written consent of the indemnified parties, 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 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 (which consent shall not be unreasonably withheld), 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 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) or 8(b) hereof 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
22
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 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 of the Company, on the one hand, and the Underwriters, on the other, 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 contribution 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 or claim. 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 set forth in the first and second
sentences in the first paragraph under the caption “Underwriting—Commissions and Discounts,” “Underwriting—Selling Restrictions,” the third and fourth sentences in the first paragraph under the caption
“Underwriting—New Issue of Notes” and the first and second paragraphs under the caption “Underwriting—Short Positions” in the Preliminary Prospectus and the Prospectus are correct and constitute the only information
concerning such Underwriters furnished in writing to the Company by or on behalf of the Underwriters specifically for inclusion in the Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus, or any amendment or supplement
thereto.
23
(f) Each Underwriter, severally and not jointly, represents and agrees that: (i) it has not
solicited, and will not solicit, offers to purchase any of the Securities from, (ii) it has not sold, and will not sell, any of the Securities to, and (iii) it has not distributed, and will not distribute, the Pricing Disclosure Package or
the Prospectus to, any person or entity in any jurisdiction outside of the United States, except, in each case, in compliance in all material respects with applicable laws and as described in the Pricing Disclosure Package and the
Prospectus. For the purposes of this paragraph, “United States” means the United States of America, its territories, its possessions (including the Commonwealth of Puerto Rico) and other areas subject to its jurisdiction.
9.
Termination.
(a) The
obligations of the Underwriters hereunder may be terminated by the Representatives by written 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), 7(k) and 7(l) hereof shall have occurred, or if the Underwriters shall decline to purchase the Securities for any reason permitted under this Agreement.
(b) If this Agreement is terminated by the Representatives in accordance with the provisions of Section 7 or Section 10, the Company
shall, subject to the limitations set forth in Section 11, reimburse the Underwriters for all their out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters.
10.
Default of One or More of the Several Underwriters
. If, on the Closing Date any one or more of the several Underwriters shall fail
or refuse to purchase Securities that it or they have agreed to purchase hereunder on such date, and the aggregate principal amount which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not exceed 10% of the
aggregate principal amount of the Securities to be purchased on such date, the other Underwriters shall be obligated, severally, in the proportions that the principal amount of Securities set forth opposite their respective names on Schedule 1
bears to the aggregate principal amount of Securities set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as may be specified by the Representatives with the consent of the non-defaulting Underwriters,
to purchase the Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date. If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase Securities and the
aggregate principal amount of Securities with respect to which such default occurs exceeds 10% of the aggregate principal amount of Securities to be purchased on such date, and arrangements satisfactory to the Representatives and the Company for the
purchase of such Securities are not made within 48 hours after such default, this Agreement shall terminate without liability of any party to any other party except that the provisions of Section 6, Section 8, and Section 11 hereof
shall at all times be effective and shall survive such termination. In any such case either the Representatives or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days in order that the required
changes, if any, to the Registration Statement and the Prospectus or any other documents or arrangements may be effected.
24
As used in this Agreement, the term “Underwriter” shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 10. Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
11.
Reimbursement of Underwriters’ Expenses
. If (a) 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 to be performed on its part hereunder, or because any other condition of the obligations hereunder required to be fulfilled by the
Company is not fulfilled for any reason, or (b) the Underwriters shall decline to purchase the Securities for any reason permitted under this Agreement, the Company will reimburse the Underwriters for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of one counsel) not to exceed $250,000 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 Representatives;
provided, however, that
in no event shall the Company be obligated to reimburse the out-of-pocket expenses of any defaulting Underwriter referred to in Section 10 hereof or any Underwriter found to be in
breach of this Agreement as of the Applicable Time.
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 Company.
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 relationship between the Company and any other person, on the one hand, and the Underwriters, on the other, exists; (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
25
the Company may have against the Underwriters with respect to any breach of fiduciary duty in connection with this offering. Any review by the Underwriters of the Company, the transactions
contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company.
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 to KeyBanc Capital Markets Inc., 127 Public Square, Cleveland, Ohio 44114,
Attention: Debt Capital Markets; Mitsubishi UFJ Securities (USA), Inc., 1633 Broadway, 29th Floor, New York, New York 10019, Attention: Capital Markets Group; and U.S. Bancorp Investments, Inc., 214 N. Tryon Street, 26th Floor, EX-NC-WSTC,
Charlotte, North Carolina 28202, Attention: High Grade Syndicate; and
(b) if to the Company, shall be delivered or sent by mail or
facsimile transmission to Southwest Gas Corporation, 5241 Spring Mountain Road, P.O. Box 98510, Las Vegas, Nevada 89193, Attention: Treasurer, with a copy (which shall not constitute notice) to Brandon C. Parris, Esq., Morrison & Foerster
LLP, 425 Market Street, San Francisco, California 94105.
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 Representatives.
15.
Persons Entitled to Benefit of Agreement
. This Agreement shall inure to the benefit of and be binding upon the Underwriters, the
Company, and their respective successors. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that (A) the representations, warranties, indemnities and agreements of the Company contained in
this Agreement shall also be deemed to be for the benefit of the directors, officers, members and employees of the Underwriters and each person or persons, if any, who control any Underwriter within the meaning of Section 15 of the Securities
Act and (B) the indemnity agreement of the Underwriters contained in Section 8(b) hereof shall be deemed to be for the benefit of the directors of the Company, the officers of the Company who have signed the Registration Statement and any
person controlling the Company within the meaning of Section 15 of the Securities Act. Nothing in this Agreement is intended or shall be construed to give any person, other than the persons referred to in this Section 15, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.
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 Terms “Business Day” and “Subsidiary.”
For purposes of this Agreement,
(a) “
business day
” means each Monday, Tuesday, Wednesday, Thursday or
26
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 and (b) “
subsidiary
” has the
meaning set forth in Rule 405 of the Rules and Regulations.
18.
Governing Law
. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard to the conflicts of laws rules of such state.
19.
Waiver of Jury Trial. THE COMPANY AND THE UNDERWRITERS HEREBY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT
. The Company and the
Underwriters agree that a final judgment in any such proceeding brought in any court shall be conclusive and binding upon the Company and the Underwriters, as applicable, and may be enforced in any other courts in the jurisdiction of which the
Company or the Underwriters are or may be subject, by suit upon such judgment.
20.
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.
21.
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.
[Signature page follows]
27
If the foregoing correctly sets forth the agreement between the Company and the Underwriters,
please indicate your acceptance in the space provided for that purpose below.
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Very truly yours,
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SOUTHWEST GAS CORPORATION
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By:
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/s/ Kenneth J. Kenny
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Name: Kenneth J. Kenny
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Title: Vice President/Finance/Treasurer
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Accepted:
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KEYBANC CAPITAL MARKETS INC.
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By:
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/s/ Gary Andrews
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Name: Gary Andrews
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Title: Managing Director
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MITSUBISHI UFJ SECURITIES (USA), INC.
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By:
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/s/ Brian Cogliandro
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Name: Brian Cogliandro
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Title: Managing Director
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U.S. BANCORP INVESTMENTS, INC.
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By:
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/s/ Phillip Bennett
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Name: Phillip Bennett
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Title: SVP / Managing Director
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For themselves and as Representatives of the Underwriters named in Schedule 1 hereto
Signature Page
SCHEDULE 1
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Underwriters
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Principal
Amount of Notes
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KeyBanc Capital Markets Inc.
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$
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58,000,000
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Mitsubishi UFJ Securities (USA), Inc.
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58,000,000
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U.S. Bancorp Investments, Inc.
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58,000,000
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Wells Fargo Securities, LLC.
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32,000,000
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Samuel A. Ramirez & Company, Inc.
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22,000,000
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The Williams Capital Group, L.P.
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22,000,000
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Total
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$
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250,000,000
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SCHEDULE 2
PRICING INFORMATION
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Issuer:
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Southwest Gas Corporation
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Title of Securities:
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4.875% Senior Notes due 2043
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Security Type:
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Senior Unsecured Fixed Rate Notes
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Ratings
1
:
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Baa1 (stable) by Moody’s Investors Service, Inc.
A- (stable) by Standard & Poor’s Ratings Services
A
(stable) by Fitch Ratings Ltd.
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Format:
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Registered with the Securities and Exchange Commission
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Trade Date:
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October 1, 2013
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Settlement Date (T+3):
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October 4, 2013
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Maturity Date:
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October 1, 2043
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Aggregate Principal Amount Offered:
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$250,000,000
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Net Proceeds:
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$247,617,500 (after underwriting discount and before an estimated $500,000 of offering expenses)
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Benchmark Treasury:
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2.875% due May 15, 2043
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Benchmark Treasury Yield:
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3.755%
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Spread to Benchmark:
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T + 112.5 basis points
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Re-offer Yield:
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4.88%
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Coupon:
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4.875% per annum
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Price to the Public (Issue Price):
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99.922%
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Interest Payment Dates:
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Semi-annually on April 1 and October 1 of each year, beginning on April 1, 2014
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Redemption Provisions:
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At any time prior to April 1, 2043, at a discount rate of Treasury rate plus 20 basis points; and on or after April 1, 2043, 100% of the principal amount plus accrued and unpaid interest to the redemption date
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CUSIP / ISIN:
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844895 AW2 / US844895AW27
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Minimum Denomination:
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$2,000, and integral multiples of $1,000 in excess thereof.
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Joint Book-Running Managers:
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KeyBanc Capital Markets Inc.
Mitsubishi UFJ
Securities (USA), Inc.
U.S. Bancorp Investments, Inc.
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Co-Managers:
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Wells Fargo Securities, LLC
Samuel A. Ramirez
& Company, Inc.
The Williams Capital Group, L.P.
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1
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An explanation of the significance of ratings may be obtained from the rating agencies. Generally, rating agencies base their ratings on such material and information, and such of their own investigations, studies and
assumptions, as they deem appropriate. The ratings of the Notes should be evaluated independently from similar ratings of other securities. A credit rating of a security is not a recommendation to buy, sell or hold securities and may be subject to
review, revision, suspension, reduction or withdrawal at any time by the assigning rating agency
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SCHEDULE 3
LIST OF SIGNIFICANT SUBSIDIARIES
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Subsidiary Name
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State of Incorporation or Organization Type
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Paiute Pipeline Company
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Nevada
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NPL Construction Co.
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Nevada
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SCHEDULE 4
LIST OF SUBSIDIARIES
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Subsidiary Name
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State of Incorporation or Organization Type
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Southwest Gas Transmission Company
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Arizona limited partnership between Southwest Gas Corporation and Utility Financial Corp.
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Southwest Gas Capital II, III, IV
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Delaware
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Utility Financial Corp.
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Nevada
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The Southwest Companies
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Nevada
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Carson Water Company
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Nevada
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IntelliChoice Energy, LLC
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Delaware
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IntelliChoice Energy of California, LLC
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Delaware
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Southwest Administrators, Inc.
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Nevada
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EXHIBIT A
MATTERS TO BE COVERED BY MORRISON & FOERSTER LLP OPINION
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1.
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The Company has been duly incorporated and is validly existing in good standing under the laws of the State of California, with corporate power to own and lease its properties and to carry on its business as described
in the Pricing Disclosure Package and the Prospectus.
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2.
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The Company has the corporate power and authority to execute and deliver, and to perform and observe the provisions of, the Underwriting Agreement.
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3.
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The statements in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes,” insofar as it purports to constitute a summary of the provisions of the Indenture and the
Securities, fairly summarize, in all material respects, such provisions; and the statements in the Pricing Disclosure Package and the Prospectus under the caption “Certain Material United States Federal Tax Considerations,” insofar as it
purports to constitute a summary of legal matters, fairly summarizes, in all material respects, such matters.
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4.
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The Securities have been duly authorized by all necessary corporate action on the part of the Company and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for
by the Underwriters pursuant to the Underwriting Agreement, will constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, usury, stay, extension or other similar laws affecting creditors’ rights generally (including, without limitation, fraudulent conveyance laws) and by general
principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding
in equity or at law from time to time in effect and to equitable principles which may limit the right to obtain the remedy of specific performance or other injunctive relief).
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5.
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The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the
date of the Underwriting Agreement; the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such opinion on the date specified therein; and, to the knowledge of such
counsel, no stop order suspending the effectiveness of the Registration Statement has been issued or threatened by the Commission, and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment
thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company.
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A-1
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6.
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The execution, delivery and performance of the Underwriting Agreement has been duly authorized by necessary corporate action on the part of the Company, and the Underwriting Agreement has been duly executed and
delivered by the Company.
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7.
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No consent, approval, authorization or order of any federal, California or New York governmental authority is required on the part of the Company for the issuance and sale of the Securities as contemplated by the
Underwriting Agreement, except (A) such as have been obtained under the Securities Act, the Trust Indenture Act and the rules and regulations of the Commission thereunder, (B) the authorization of the Public Utilities Commission of the
State of California referred to in Section 1(p) of the Underwriting Agreement, and (C) such as may be required under foreign or state securities or blue sky laws in connection with the purchase and distribution of the Securities by the
Underwriters.
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8.
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The Indenture has been duly authorized by all necessary corporate action on the part of the Company, executed and delivered by the Company and qualified under the Trust Indenture Act and constitutes a legal, valid and
binding obligation of the Company, enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, usury, stay, extension or other similar laws affecting
creditors’ rights generally (including, without limitation, fraudulent conveyance laws) and by general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law from time to time in effect and to equitable principles which may limit the right to obtain the remedy of specific
performance or other injunctive relief).
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9.
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The Company’s execution, delivery and performance of the Underwriting Agreement, the Indenture and the Securities do not violate (a) the Company’s articles of incorporation or by-laws or (b) any
applicable California, New York or federal law, ordinance, administrative or governmental rule or regulation known by such counsel to be applicable to the Company.
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10.
|
The Company is not an investment company required to register under the Investment Company Act of 1940, as amended.
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11.
|
The Registration Statement, at its effective date, and each of the Preliminary Prospectus and the Prospectus at their respective dates of filing, and any amendments and supplements thereto made by the Company prior to
the Closing Date at their respective effective dates or respective dates of filing, as applicable, appeared on their face to comply as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the
rules and regulations of the Commission thereunder, as applicable (except that such counsel need express no opinion concerning the financial statements (including the notes thereto), supporting schedules and other financial information included or
incorporated by reference therein).
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A-2
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12.
|
Any required filing of each Issuer Free Writing Prospectus pursuant to Rule 433 of the Securities Act has been made in the manner and within the time period required by Rule 433(d).
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13.
|
The Indenture complies as to form in all material respects with the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder.
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14.
|
The documents incorporated by reference in the Pricing Disclosure Package and the Prospectus, on the respective dates they were filed, appeared on their face to comply in all material respects with the requirements of
the Exchange Act and the rules and regulations of the Commission thereunder in effect at such dates (except that such counsel need express no opinion concerning the financial statements (including the notes thereto), supporting schedules and other
financial information included or incorporated by reference therein).
|
On the basis of such counsel’s review of the Registration
Statement, the Pricing Disclosure Package, the Prospectus and any amendments and supplements thereto made by the Company prior to the Closing Date and the documents incorporated by reference in the Pricing Disclosure Package and the Prospectus and
such counsel’s participation in conferences in connection with the preparation of the Registration Statement, the Pricing Disclosure Package and the Prospectus and any amendments and supplements thereto made by the Company prior to the Closing
Date, and the additional assumptions and limitations to be set forth in such counsel’s letter, such counsel shall indicate that nothing has come to its attention that leads it to believe that: (i) the Registration Statement, at the time it
became effective (including the information, if any, deemed pursuant to Rule 430B under the Securities Act to be part of the Registration Statement at the time of effectiveness and including the documents then incorporated by reference and
considered as a whole as of such date), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus at its
issue date or as of the Closing Date, included or includes 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 the light of the circumstances under which they were
made, not misleading; or (iii) the documents and information comprising the Pricing Disclosure Package, taken as a whole as of the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided, however
, that such counsel is not required to pass upon and shall 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 as otherwise specifically stated in subparagraph (3) above), and such counsel is not required, and is
not requested to, make any comment with respect to (a) the financial statements (including the notes thereto), supporting schedules and other financial information included or incorporated by reference in the Registration Statement, the
Prospectus or the Pricing Disclosure Package and (b) that part of the Registration Statement or any such amendments thereto which constitutes the Statement of
A-3
Eligibility and Qualification of the Trustee on Form T-1 under the Exchange Act. Such counsel is also not required to pass on, or assume any responsibility for, ascertaining whether or when any
of the information contained in the Pricing Disclosure Package was conveyed to any purchaser of the Securities.
A-4
EXHIBIT B
MATTERS TO BE COVERED BY COMPANY’S ASSOCIATE GENERAL COUNSEL OPINION
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1.
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Each of the Company’s Significant Subsidiaries has been duly incorporated, organized or formed and is validly existing in good standing under the laws of the jurisdiction of its incorporation, organization or
formation, with corporate power to own and lease its properties and to carry on its businesses as described in the Pricing Disclosure Package and the Prospectus.
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2.
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The Company has an authorized capitalization as set forth in the Pricing Disclosure Package and the Prospectus (except for subsequent issuances of common stock pursuant to employee benefit plans or pursuant to the
exercise of convertible securities or options).
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3.
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The Company is duly qualified to do business as a foreign corporation and is in good standing under the laws of the States of Nevada and Arizona and, except, individually or in the aggregate, as would not reasonably be
expected to have a Material Adverse Effect, neither the Company nor any of its Significant Subsidiaries own or lease properties or conduct business in any other jurisdiction which would require such qualification.
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4.
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All of the outstanding shares of capital stock of each of the Company’s Significant Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable.
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5.
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All of the outstanding shares of capital stock of each of the Company’s Significant Subsidiaries are owned of record directly by the Company free and clear of any perfected security interest, or, to the best
knowledge of such counsel after reasonable inquiry, any other security interest, lien, adverse claim, equity or other encumbrance.
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6.
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To the best knowledge of such counsel after reasonable inquiry, neither the Company nor any of its subsidiaries is in violation of or is in default in the performance of any obligation contained in any bond, debenture,
note or any other evidence of indebtedness or in any material agreement, indenture, lease or other instrument to which the Company or any of its subsidiaries is a party or by which any of them or any of their respective properties may be bound which
violation or default could reasonably be expected to have a Material Adverse Effect.
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7.
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To the best knowledge of such counsel after reasonable inquiry, there are no rights that entitle or will entitle any person to acquire any security of the Company upon the issuance of the Securities by the Company; to
the best knowledge of such counsel after reasonable inquiry, there is no holder of any security of the Company or any other person who has the right, contractual or otherwise, to cause the Company to sell or otherwise issue to them, or to permit
them to underwrite the sale of, any security of the Company as a result of the issuance of the Securities by the Company.
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8.
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The Company’s execution, delivery and performance of the Underwriting Agreement, the Indenture and the Securities do not: (A) violate,
breach, or result in a default under any
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B-1
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|
existing obligation of the Company or any of its subsidiaries under any agreement, indenture, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it
or any of its properties bound that is an exhibit to the Registration Statement or to any document incorporated by reference in the Pricing Disclosure Package and the Prospectus or any other agreement, indenture, lease or other instrument known to
such counsel after reasonable inquiry, which violation, breach or default could reasonably be expected to have a Material Adverse Effect, (B) breach or otherwise violate any existing obligation of the Company under any order, judgment or decree
of any Arizona, California or Nevada or federal court or governmental authority binding on the Company, which violation or breach could reasonably be expected to have a Material Adverse Effect or (C) violate any applicable Arizona or Nevada
law, ordinance, administrative or governmental rule or regulation.
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9.
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No consent, approval, authorization or order of, or filing with, any Arizona or Nevada governmental authority is required on the part of the Company for the issuance and sale of the Securities as contemplated by the
Underwriting Agreement, except: (A) such as have been obtained under the Securities Act, the Trust Indenture Act or the rules and regulations of the Commission thereunder, (B) the authorization of the Public Utilities Commission of the
State of California referred to in Section 1(p) of this Agreement which has been obtained, remains in full force and effect and is, to the best knowledge of such counsel, not the subject of any pending or threatened application for rehearing or
petition for modification and (C) such as may be required under applicable foreign or state securities or blue sky laws in connection with the purchase and distribution of the Securities by the Underwriters.
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10.
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To the best knowledge of such counsel after reasonable inquiry, the descriptions in the Registration Statement, the Pricing Disclosure Package and the Prospectus of statutes, legal, governmental and regulatory
proceedings and contracts and other documents are accurate in all material respects; and, to the best knowledge of such counsel after reasonable inquiry, other than as described or contemplated in the Pricing Disclosure Package and the Prospectus,
there are no legal or governmental proceedings pending or threatened against the Company or any of its subsidiaries, or to which the Company or any of its subsidiaries or any of their property is subject, that would reasonably be expected to have a
Material Adverse Effect.
|
In connection with such counsel’s participation in conferences with the representatives and with
representatives of the Company and its accountants in connection with the preparation of the Registration Statement, the Pricing Disclosure Package and the Prospectus, such counsel may indicate that it relied upon records, documents, certificates of
public officials and of the Company furnished to such counsel by the Company and such counsel has neither verified, nor undertaken to verify independently the accuracy, completeness or fairness of the statements set forth therein or incorporated
therein, or in the Registration Statement, the Prospectus or the Pricing Disclosure Package. Such counsel may state that the limitations inherent in the examination conducted by such counsel and the knowledge available to it are such that such
counsel does not assume any responsibility for such accuracy, completeness or fairness. Such counsel may also state that it is not passing upon, and do not assume any responsibility for, ascertaining whether or when any of the information contained
in the Pricing Disclosure Package
B-2
was conveyed to any purchaser of the Notes, and that many of the determinations required to be made in the preparation of the Registration Statement, the Prospectus and the Pricing Disclosure
Package involve matters of a non-legal nature.
Based upon and subject to the foregoing and the additional assumptions and limitations to be set
forth in such counsel’s letter and on the basis of the information it gained in the course of performing the services referred to above, such counsel shall indicate that nothing has come to its attention that leads it to believe that:
(i) the Registration Statement, at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(ii) the Prospectus, at its issue date or as of the Closing Date, included or includes 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 the light of the
circumstances under which they were made, not misleading; or (iii) the documents and information comprising the Pricing Disclosure Package, taken as a whole as of the Applicable Time, included an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided, however,
that such counsel is not required to pass upon and shall 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, and such counsel is not required, and is not requested to, make any comment
with respect to (a) the financial statements (including the notes thereto), supporting schedules and other financial information included or incorporated by reference in the Registration Statement, the Prospectus or the Pricing Disclosure
Package, and (b) that part of the Registration Statement or any amendments or supplements thereto, which constitutes the Statement of Eligibility and Qualification of the Trustee on Form T-1 under the Exchange Act.
B-3
Exhibit 4.1
SOUTHWEST GAS CORPORATION
AND
THE BANK OF NEW
YORK MELLON TRUST COMPANY, N.A.,
as Trustee
INDENTURE
Dated as of October 4, 2013
4.875% Senior
Notes due 2043
SOUTHWEST GAS CORPORATION
Certain Sections of this Indenture relating to Sections 310 through 318, inclusive, of the Trust Indenture Act of 1939:
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Trust Indenture Act Section
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Indenture Section
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Sec. 310 (a)(1)
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509
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(a)(2)
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509
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(a)(3)
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Not Applicable
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(a)(4)
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Not Applicable
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(b)
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508
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510
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Sec. 311 (a)
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513
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(b)
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513
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Sec. 312 (a)
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601
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602
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(b)
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602
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(c)
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602
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Sec. 313 (a)
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603
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(b)
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603
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(c)
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603
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(d)
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603
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Sec. 314 (a)
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604
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(a)(4)
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101
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904
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(b)
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Not Applicable
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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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(c)(3)
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Not Applicable
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(d)
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Not Applicable
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(e)
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102
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Sec. 315 (a)
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501
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(b)
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502
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(c)
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501
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(d)
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501
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(e)
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414
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Sec. 316 (a)
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101
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(a)(1)(A)
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402
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412
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(a)(1)(B)
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413
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(a)(2)
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Not Applicable
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(b)
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408
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(c)
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104
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401
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402
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412
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Sec. 317(a)(1)
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403
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(a)(2)
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404
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(b)
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903
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Sec. 318(a)
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107
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NOTE:
This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
TABLE OF CONTENTS
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Page
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PARTIES
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1
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RECITALS OF THE COMPANY
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1
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ARTICLE ONE
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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1
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Section 101.
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Definitions
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1
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Section 102.
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Compliance Certificates and Opinions
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8
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Section 103.
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Form of Documents Delivered to Trustee
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9
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Section 104.
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Acts of Holders; Record Dates
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9
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Section 105.
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Notices, Etc., to Trustee and Company
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11
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Section 106.
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Notice to Holders; Waiver
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11
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Section 107.
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Conflict with Trust Indenture Act
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12
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Section 108.
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Effect of Headings and Table of Contents
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12
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Section 109.
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Successors and Assigns
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12
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Section 110.
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Separability Clause
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12
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Section 111.
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Benefits of Indenture
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12
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Section 112.
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Governing Law
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12
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Section 113.
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Legal Holidays
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13
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Section 114.
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Waiver of Jury Trial
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13
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Section 115.
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Force Majeure
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13
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ARTICLE TWO
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THE NOTES
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13
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Section 201.
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Form
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13
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Section 202.
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Denominations
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14
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Section 203.
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Execution, Authentication, Delivery and Dating
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14
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Section 204.
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Temporary Notes
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15
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Section 205.
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Registration, Registration of Transfer and Exchange
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16
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Section 206.
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Mutilated, Destroyed, Lost and Stolen Notes
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17
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Section 207.
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Payment of Interest; Interest Rights Preserved
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18
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Section 208.
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Persons Deemed Owners
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19
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Section 209.
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Cancellation
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19
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Section 210.
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Computation of Interest
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19
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- iii -
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Section 211.
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CUSIP Numbers
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19
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ARTICLE THREE
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SATISFACTION AND DISCHARGE
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20
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Section 301.
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Satisfaction and Discharge of Indenture
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20
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Section 302.
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Application of Trust Money
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21
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ARTICLE FOUR
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EVENTS OF DEFAULT; REMEDIES
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21
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Section 401.
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Events of Default
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21
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Section 402.
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Acceleration of Maturity; Rescission and Annulment
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23
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Section 403.
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Collection of Indebtedness and Suits for Enforcement by Trustee
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24
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Section 404.
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Trustee May File Proofs of Claim
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24
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Section 405.
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Trustee May Enforce Claims Without Possession of Notes
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25
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Section 406.
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Application of Money Collected
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25
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Section 407.
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Limitation on Suits
|
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25
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Section 408.
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Unconditional Right of Holders to Receive Principal, Premium and Interest
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26
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Section 409.
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Restoration of Rights and Remedies
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26
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Section 410.
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Rights and Remedies Cumulative
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26
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Section 411.
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Delay or Omission Not Waiver
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26
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Section 412.
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Control by Holders
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27
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Section 413.
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Waiver of Past Defaults
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27
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Section 414.
|
|
Undertaking for Costs
|
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|
28
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|
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|
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Section 415.
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Waiver of Usury, Stay or Extension Laws
|
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|
28
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ARTICLE FIVE
|
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THE TRUSTEE
|
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28
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Section 501.
|
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Certain Duties and Responsibilities
|
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|
28
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|
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|
|
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Section 502.
|
|
Notice of Defaults
|
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|
29
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|
|
|
|
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Section 503.
|
|
Certain Rights of Trustee
|
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|
29
|
|
|
|
|
|
|
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|
Section 504.
|
|
Not Responsible for Recitals or Issuance of Notes
|
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|
31
|
|
|
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|
|
|
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|
|
Section 505.
|
|
May Hold Notes
|
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|
31
|
|
|
|
|
|
|
|
|
|
Section 506.
|
|
Money Held in Trust
|
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|
31
|
|
|
|
|
|
|
|
|
|
Section 507.
|
|
Compensation and Reimbursement
|
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|
31
|
|
|
|
|
|
|
|
|
|
Section 508.
|
|
Disqualification; Conflicting Interests
|
|
|
32
|
|
|
|
|
|
|
|
|
|
Section 509.
|
|
Corporate Trustee Required; Eligibility
|
|
|
32
|
|
|
|
|
|
|
|
|
|
Section 510.
|
|
Resignation and Removal; Appointment of Successor
|
|
|
33
|
|
|
|
|
|
|
|
|
|
Section 511.
|
|
Acceptance of Appointment by Successor
|
|
|
34
|
|
NOTE: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture.
|
|
|
|
|
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|
|
|
|
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|
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Section 512.
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Merger, Conversion, Consolidation or Succession to Business
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34
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Section 513.
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Preferential Collection of Claims Against Company
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35
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Section 514.
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Appointment of Authenticating Agent
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35
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ARTICLE SIX
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HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
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36
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Section 601.
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Company to Furnish Trustee Names and Addresses of Holders
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36
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Section 602.
|
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Preservation of Information; Communications to Holders
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36
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Section 603.
|
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Reports by Trustee
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37
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Section 604.
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Reports by Company
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37
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ARTICLE SEVEN
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CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
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37
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Section 701.
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Company May Consolidate, Etc., Only on Certain Terms
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37
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Section 702.
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Successor Substituted
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38
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ARTICLE EIGHT
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AMENDMENTS
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39
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Section 801.
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Amendments Without Consent of Holders
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39
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Section 802.
|
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Amendment with Consent of Holders
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39
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Section 803.
|
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Execution of Supplemental Indentures
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40
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Section 804.
|
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Effect of Supplemental Indentures
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40
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Section 805.
|
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Conformity with Trust Indenture Act
|
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41
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Section 806.
|
|
Reference in Notes to Supplemental Indentures
|
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41
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ARTICLE NINE
|
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COVENANTS
|
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41
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Section 901.
|
|
Payment of Principal, Premium and Interest
|
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41
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|
Section 902.
|
|
Maintenance of Office or Agency
|
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41
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|
Section 903.
|
|
Money for Notes Payments to Be Held in Trust
|
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41
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|
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|
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|
Section 904.
|
|
Statement by Officers as to Default
|
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42
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|
Section 905.
|
|
Existence
|
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42
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|
Section 906.
|
|
Maintenance of Properties
|
|
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43
|
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|
Section 907.
|
|
Payment of Taxes and Other Claims
|
|
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43
|
|
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|
|
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|
Section 908.
|
|
Restrictions on Liens
|
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43
|
|
|
|
|
|
|
|
|
|
Section 909.
|
|
Restrictions on Sale and
Lease-back
Transactions
|
|
|
46
|
|
|
|
|
|
|
ARTICLE TEN
|
|
REDEMPTION OF NOTES
|
|
|
46
|
|
|
|
|
|
|
|
|
|
Section 1001.
|
|
Optional Redemption
|
|
|
46
|
|
|
|
|
|
|
|
|
|
Section 1002.
|
|
Election to Redeem; Notice to Trustee
|
|
|
47
|
|
NOTE: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture.
|
|
|
|
|
|
|
|
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|
|
|
Section 1003.
|
|
Selection by Trustee of Notes to Be Redeemed
|
|
|
47
|
|
|
|
|
|
|
|
|
|
Section 1004.
|
|
Notice of Redemption
|
|
|
47
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|
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|
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|
|
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|
Section 1005.
|
|
Deposit of Redemption Price
|
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|
48
|
|
|
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|
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|
Section 1006.
|
|
Notes Payable on Redemption Date
|
|
|
48
|
|
|
|
|
|
|
|
|
|
Section 1007.
|
|
Notes Redeemed in Part
|
|
|
48
|
|
|
|
|
|
|
ARTICLE ELEVEN
|
|
DEFEASANCE AND COVENANT DEFEASANCE
|
|
|
49
|
|
|
|
|
|
|
|
|
|
Section 1101.
|
|
Company’s Option to Effect Defeasance or Covenant Defeasance
|
|
|
49
|
|
|
|
|
|
|
|
|
|
Section 1102.
|
|
Defeasance and Discharge
|
|
|
49
|
|
|
|
|
|
|
|
|
|
Section 1103.
|
|
Covenant Defeasance
|
|
|
49
|
|
|
|
|
|
|
|
|
|
Section 1104.
|
|
Conditions to Defeasance or Covenant Defeasance
|
|
|
50
|
|
|
|
|
|
|
|
|
|
Section 1105.
|
|
Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions
|
|
|
51
|
|
|
|
|
|
|
|
|
|
Section 1106.
|
|
Reinstatement
|
|
|
52
|
|
NOTE: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture.
INDENTURE, dated as of October 4, 2013, between Southwest Gas Corporation, a corporation duly
organized and existing under the laws of the State of California (herein called the “
Company
”), having its principal office at 5241 Spring Mountain Road, Las Vegas, Nevada 89150, and The Bank of New York Mellon Trust Company, N.A.,
as 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 of the Company’s 4.875% Senior Notes due
2043 (herein called the “
Notes
”).
All things necessary to make the Notes, when duly issued and executed by the Company and
authenticated and delivered hereunder, the valid and legally binding obligations of the Company and to make this Indenture a valid and legally binding 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 Notes by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit
of all Holders of the Notes, 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;
|
|
|
(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 at the Issue Date;
|
|
|
(4)
|
the words “Article” and “Section” refer to an Article and Section, respectively, of this Indenture; and
|
1
|
|
(5)
|
the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
|
“
Act
”, when used with respect to any Holder, has the meaning specified in Section 104.
“
Additional Notes
” has the meaning specified in Section 203.
“
Adjusted Treasury Rate
” means, with respect to any Redemption Date, the rate per year equal to the
semi-annual
equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for the Redemption Date.
“
Affiliate
” of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “
control
” when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “
controlling
” and “
controlled
” have meanings correlative to
the foregoing.
“
Authenticating Agent
” means any Person authorized by the Trustee pursuant to Section 514 to act on
behalf of the Trustee to authenticate the Notes.
“
Authentication Order
” means a Company Order directing the Trustee to
authenticate Notes.
“
Board of Directors
” means either the board of directors of the Company or any duly authorized
committee of that board.
“
Board Resolution
” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the 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.
“
Business Day
” means any day that is not a day on which banking institutions in New York City are authorized or required by law,
executive order or regulation to close.
“
Capitalized Lease
” means any lease of property of the Company (whether real,
personal or mixed) by the Company as lessee that would, in conformity with generally accepted accounting principles, be required to be accounted for as a capital lease on the balance sheet of the Company.
“
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 instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“
Company
” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall
have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
2
“
Company Request
” or “
Company Order
” means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice Chairman of the Board, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
“
Comparable Treasury Issue
” means the United States Treasury security selected by the Quotation Agent as having a
maturity comparable to the remaining term of the Notes to be redeemed that would be used, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Notes.
“
Comparable Treasury Price
” means, with respect to any Redemption Date:
|
|
(a)
|
the average of the Reference Treasury Dealer Quotations for that Redemption Date, after excluding the highest and lowest of the Reference Treasury Dealer Quotations; or
|
|
|
(b)
|
if the Quotation Agent obtains fewer than four Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer Quotations so received.
|
“
Corporate Trust Office
” means the principal office of the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date hereof is located at 2 N. LaSalle Street, Suite 1020, Chicago, IL 60602, Attention: Corporate Trust Administration, or such other address as the Trustee may designate from time to time by notice to the
Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
“
Corporation
” means a corporation, association, company, joint-stock company or business trust.
“
Covenant Defeasance
” has the meaning specified in Section 1103.
“
Debt
” has the meaning specified in Section 908(1).
“
Defaulted Interest
” has the meaning specified in Section 207.
“
Defeasance
” has the meaning specified in Section 1102.
“
Depositary
” means The Depository Trust Company, its nominees and their respective successors and assigns, or such other clearing
agency registered under the Exchange Act that is hereafter designated to act as Depositary by the Company.
“
Event of
Default
” has the meaning specified in Section 401.
“
Exchange Act
” means the Securities Exchange Act of 1934, as
amended from time to time, and any statute successor thereto.
3
“
Funded Debt
” means all Indebtedness of the Company that by its terms or by the terms of
any instrument or agreement relating thereto matures more than one year from, or is directly or indirectly renewable or extendable at the option of the Company to a date more than one year from the date of creation thereof (including an option of
the Company under a revolving credit or similar agreement obligating the lender or lenders to extend credit over a period of more than one year), but excluding any payments due under the terms thereof within 12 months of any date of determination
(including any deposit or payment required to be made under any prepayment provision, sinking fund, purchase fund or similar provision).
“
Global Notes
” has the meaning specified in Section 201.
“
Holder
” means a Person in whose name a Note is registered in the Note Register.
“
Indebtedness
” means, as applied to any Person, Capitalized Leases, bonds, notes, debentures and other securities representing
obligations for borrowed money created or assumed by such Person. All indebtedness guaranteed as to payment of principal in any manner by such Person or in effect guaranteed by such Person through a contingent agreement to purchase such
indebtedness, and all indebtedness that is both secured by a Lien upon property owned by such Person and upon which such Person customarily pays interest, even though such Person has not assumed or become liable for the payment of such indebtedness,
shall for all purposes hereof be deemed to be “Indebtedness” of such Person.
“
Indenture
” means 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 applicable provisions hereof, including, for all purposes of this instrument, and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively.
“
Initial Global Notes
” has the meaning specified in Section 201.
“
Initial Notes
” has the meaning specified in Section 203.
“
Interest Payment Date
”, when used with respect to any Note, means the Stated Maturity of an installment of interest on such Note, as
specified in the Form of Face of Note contained in
Exhibit A
.
“
Issue Date
” means October 4, 2013.
“
Lien
” means any lien, mortgage, pledge, security interest, charge or other encumbrance of any kind.
“
Maturity
”, when used with respect to any Note, means the date on which the principal of such Note becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“
Note
Register
” and “
Note Registrar
” have the respective meanings specified in Section 205.
4
“
Notes
” has the meaning stated in the first recital of this Indenture and more
particularly means the 4.875% Senior Notes due 2043 authenticated and delivered under this Indenture (whether issued on the Issue Date, issued as Additional Notes, or otherwise issued after the Issue Date), and treated as a single class of
securities under this Indenture.
“
Notice of Default
” has the meaning specified in Section 401.
“
Officers’ Certificate
” means a certificate signed by the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee. One of the officers signing an Officers’ Certificate given pursuant to Section 904 shall be the principal executive, financial or accounting
officer of the Company.
“
Opinion of Counsel
” means a written opinion acceptable to the Trustee (which acceptance shall not
unreasonably be withheld) of counsel for the Company, who may be an employee of the Company.
“
Outstanding
”, when used with
respect to the Notes, means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture, except:
|
|
(1)
|
Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
|
|
|
(2)
|
Notes for whose payment or redemption 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 Notes;
provided that,
if such Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
|
|
|
(3)
|
Notes as to which Defeasance has been effected pursuant to Section 1102; and
|
|
|
(4)
|
Notes which have been paid pursuant to Section 206 or in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which
there shall have been presented to the Trustee proof satisfactory to it that such Notes are held by a bona fide purchaser in whose hands such Notes are valid obligations of the Company;
|
provided, however, that
in determining whether the Holders of the requisite principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by the Company or any other obligor upon the Notes 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 relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which a Responsible Officer of the Trustee actually knows to be so owned shall be
so disregarded. Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is
not the Company or any other obligor upon the Notes or any Subsidiary of the Company or of such other obligor.
5
“
Paying Agent
” means any Person authorized by the Company to pay the principal of or any
premium or interest on any Notes on behalf of the Company.
“
Person
” means any individual, Corporation, limited liability
company, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.
“
Physical Notes
” has the meaning specified in Section 201.
“
Place of Payment
”, when used with respect to the Notes, means the place or places where the principal of and any premium and interest
on the Notes are payable as specified in the Form of Face of Note contained in
Exhibit A
.
“
Predecessor Note
” of any
particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 206 in exchange for
or in lieu of a mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same debt as the lost, destroyed, mutilated or stolen Note.
“
Primary Treasury Dealer
” has the meaning specified in the definition of “Reference Treasury Dealer.”
“
Prospectus
” means the Company’s prospectus dated October 1, 2013 relating to the initial offering of the Notes.
“
Quotation Agent
” means the Reference Treasury Dealer appointed by the Company.
“
Redemption Date
”, when used with respect to a redemption of a Note at the option of the Company pursuant to this Indenture, means any
date specified as a “Redemption Date” in a notice of redemption provided to the Holders in accordance with the provisions of Article Ten of this Indenture.
“
Redemption Price
” means:
|
|
(a)
|
at any time prior to April 1, 2043, the greater of (i) 100% of the principal amount of the Notes to be redeemed on such Redemption Date plus, except as provided in Section 1006, accrued and unpaid
interest on such Notes up to, but excluding, the Redemption Date, or (ii) as determined by the Quotation Agent, the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed on such
Redemption Date (not including any portion of payments of interest accrued as of such Redemption Date) discounted to such Redemption Date on a
semi-annual
basis (assuming a
360-day
year consisting of twelve
30-day
months) at the Adjusted Treasury Rate plus 20 basis points, plus, except as provided in Section 1006, accrued and unpaid
interest on those Notes up to but excluding such Redemption Date; or
|
6
|
|
(b)
|
at any time on or after April 1, 2043, 100% of the principal amount of the Notes to be redeemed on such Redemption Date, plus, except as provided in Section 1006, accrued and unpaid interest on such Notes up
to, but excluding the Redemption Date.
|
“
Reference Treasury Dealer
” means (1) a Primary Treasury Dealer
selected by each of KeyBanc Capital Markets Inc., U.S. Bancorp Investments, Inc. and Mitsubishi UFJ Securities (USA), Inc. and their respective successors, unless such entity ceases to be a primary U.S. Government securities dealer in the United
States of America (a “
Primary Treasury Dealer
”), in which case the Company shall substitute another Primary Treasury Dealer; and (2) any other Primary Treasury Dealer selected by the Company.
“
Reference Treasury Dealer Quotations
” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Quotation Agent by that Reference Treasury Dealer at 3:30
p.m., New York City time, on the third Business Day preceding that Redemption Date.
“
Regular Record Date
” for the interest
payable on any Note on any Interest Payment Date means the date specified for that purpose in the Form of Face of Note Contained in
Exhibit A
.
“
Responsible Officer
”, when used with respect to the Trustee, means any officer within the corporate trust department of the Trustee,
including any vice president, any trust officer or assistant trust officer or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers 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 and who shall have direct responsibility for the administration of this Indenture.
“
Sale and Lease-back Transaction
” has the meaning specified in Section 909.
“
Special Record Date
” for the payment of any Defaulted Interest on any Note means a date fixed by the Trustee pursuant to Section
207.
“
Stated Maturity
”, when used with respect to any Note or any installment of interest thereon, means the date
specified in such Note as the fixed date on which the principal of such Note or such installment of interest is due and payable.
“
Subsidiary
” means any corporation, association, partnership or other business entity of which more than 50% of the outstanding Voting
Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, general partners or trustees thereof, or persons performing similar functions,
is at the time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of such Person.
“
Total Capitalization
” means, as at any time, the aggregate of (i) all amounts outstanding on such date classified as
shareholders’ equity of the Company on such date, (ii) all amounts outstanding on such date classified as preferred or preference stock of the Company on such date, and (iii) all amounts of Funded Debt of the Company outstanding on
such date determined on an unconsolidated basis.
7
“
Trustee
” means the Person named as the “Trustee” in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean the successor.
“
Trust Indenture Act
” means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed;
provided, however, that
in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
“
U.S. Government Obligation
” has the meaning specified in Section 1104.
“
Value
” has the meaning specified in Section 908(3).
“
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”.
“
Voting Stock
” means any class or
classes of capital stock or other interests then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of the board of directors, managers, general partners or trustees thereof, or persons
performing similar functions.
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 such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include
|
|
(1)
|
a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
|
|
|
(2)
|
a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
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(3)
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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
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8
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(4)
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a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
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Section 103.
Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or
opinion of an officer of the 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; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments signed by such Holders in person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the
“
Act
” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Note, shall be sufficient for any purpose of this
Indenture and (subject to Section 501) conclusive in favor of the Trustee and the Company and any agent of the Trustee or the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee deems sufficient.
9
The ownership, principal amount and serial number of the Notes shall be proved by the Note Register.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Note shall bind every future Holder of the same Note
and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Note.
The Company may, in the circumstances permitted by the Trust Indenture Act, set any day as the record
date for the purpose of determining the Holders of the Outstanding Notes entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or other action or permitted by this Indenture to be given or taken by Holders
of the Notes. With regard to any record date set pursuant to this paragraph, the Holders of the Outstanding Notes on such record date (or their duly appointed agents), and only such Persons, shall be entitled to give or take the relevant action,
whether or not such Holders remain Holders after such record date. With regard to any action that may be given or taken hereunder only by Holders of a requisite principal amount of the Outstanding Notes (or their duly appointed agents) and for which
a record date is set pursuant to this paragraph, the Company may, at its option, set an expiration date after which no such action purported to be given or taken by any Holder shall be effective hereunder unless given or taken on or prior to such
expiration date by Holders of the requisite principal amount of the Outstanding Notes on such record date (or their duly appointed agents). On or prior to any expiration date set pursuant to this paragraph, the Company may, on one or more occasions
at its option, extend such date to any later date. Nothing in this paragraph shall prevent any Holder (or any duly appointed agent thereof) from giving or taking, after any expiration date, any action identical to, or, at any time, contrary to or
different from, any action given or taken, or purported to have been given or taken, hereunder by a Holder on or prior to such date, in which event the Company may set a record date in respect thereof pursuant to this paragraph. Notwithstanding the
foregoing or the Trust Indenture Act, the Company shall not set a record date for, and the provisions of this paragraph shall not apply with respect to, any action to be given or taken by Holders pursuant to Sections 401, 402 or 412.
Without limiting the foregoing, a Holder entitled hereunder to give or take any action hereunder with regard to any particular Note may do so with regard to
all or any part of the principal amount of such Note or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any different part of such principal amount.
10
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,
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(1)
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the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, or
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(2)
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the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to
it to the attention of its Treasurer at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company.
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The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, pdf, facsimile transmission
or other similar unsecured electronic methods,
provided, however, that
the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such
designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee e-mail or facsimile instructions (or instructions by a
similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses
arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Company agrees to assume all risks
arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third
parties.
Section 106.
Notice to Holders; Waiver.
Except as otherwise expressly provided in or pursuant to this Indenture, where this Indenture provides for notice to Holders of the Notes of any event, such
notice shall be sufficiently given to Holders of the Notes if in writing and mailed, first-class postage prepaid, to each Holder of a Note affected by such event, at his address as it appears in the Note 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 notice to Holders of the Notes is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Note shall affect the sufficiency of such notice with respect to other Holders of Notes given as provided herein. Any notice which is mailed in
the manner herein provided shall be conclusively presumed to have been duly given or provided. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
11
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 of the Notes 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 with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern
this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture
as so modified or to be excluded, as the case may be.
Section 108.
Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
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 any Note shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111.
Benefits of Indenture.
Nothing in this Indenture or the Notes, express or implied, shall give to any Person (including any Paying Agent or Authenticating Agent appointed pursuant to
Section 514), other than the parties hereto and their successors hereunder and the Holders of the Notes, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 112.
Governing Law.
This Indenture and the
Notes shall be governed by and construed in accordance with the laws of the State of New York (including Section 5-1401 of the General Obligations Law of the State of New York but otherwise without regard to principles of conflicts of laws).
12
Section 113.
Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Note shall not be a Business Day at the Place of Payment, then
(notwithstanding any other provision of this Indenture or any Note) payment of interest or principal (and premium, if any) need not be made at the Place of Payment on such date, but may be made on the next succeeding Business Day at the Place of
Payment with the same force and effect as if made on the Interest Payment Date, Redemption Date or at the Stated Maturity,
provided that
no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be.
Section 114.
Waiver of Jury Trial.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 115.
Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused
by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.
ARTICLE TWO
The Notes
Section 201.
Form
The Notes and the Trustee’s certificate of authentication shall be substantially in the form of
Exhibit A
hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or usage. The Company shall approve the form of the Notes and any notation, legend or endorsement on them. Each Note shall show the date of its authentication.
The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the
Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.
The Notes shall be issued initially in the form of a single permanent global Note in registered form, substantially in the form set forth in
Exhibit
A
(the “
Initial Global Notes
”), deposited with the Trustee, as custodian for the Depository, duly executed by the Company and authenticated by the Trustee as hereinafter provided and shall bear the legend set forth in
Exhibit
B
.
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The Notes issued after the Issue Date shall be issued (a) initially in the form of one or more global
Notes in registered form, substantially in the form set forth in
Exhibit A
, deposited with the Trustee, as custodian for the Depository, duly executed by the Company and authenticated by the Trustee as hereinafter provided and shall bear any
legends required by applicable law (together with the Initial Global Notes, the “
Global Notes
”) or (b) as Physical Notes.
The aggregate principal amount of the Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee,
as custodian for the Depository, as hereinafter provided. Notes issued in exchange for interests in a Global Note pursuant to Section 205 may be issued in the form of permanent certificated Notes in registered form in substantially the form set
forth in
Exhibit A
and bearing the applicable legends, if any (the “
Physical Notes
”).
Additional Notes ranking
pari passu
with the Initial Notes may be created and issued from time to time by the Company without notice to or consent of the Holders and shall be consolidated with and form a single class with the Initial Notes and shall
have the same terms as to status, redemption or otherwise (other than with respect to the purchase price thereof and the date from which the interest accrues) as the Initial Notes. The Initial Notes and any Additional Notes subsequently issued under
this Indenture will be treated as a single class for all purposes under this Indenture, including waivers, amendments, redemptions and offers to purchase, and shall vote together as one class on all matters with respect to the Notes;
provided
further that
if the Additional Notes are not fungible with the Notes for U.S. Federal income tax purposes the Additional Notes will have a separate “CUSIP” number, if applicable. Unless the context requires otherwise, references to
“Notes” for all purposes of this Indenture include any Additional Notes that are actually issued.
Section 202.
Denominations.
The Notes shall be issuable only in registered form without coupons in minimum denominations of $2,000 and integral multiples of
$1,000 in excess thereof.
Section 203.
Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by its Chairman of the Board, its Vice Chairman of the Board, its President or one of its Vice Presidents
and attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Notes may be manual or facsimile.
Notes
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 Notes or did not hold such offices at the date of such Notes.
Each Note shall be dated the date of its
authentication.
14
No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Note a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such
Note has been duly authenticated and delivered hereunder.
The Trustee shall authenticate (i) on the Issue Date, Notes for original issue in
the aggregate principal amount not to exceed $250,000,000.00 (the “
Initial Notes
”) and (ii) additional Notes (the “
Additional Notes
”) in an unlimited amount in each case upon an Authentication Order. Each such
Authentication Order shall specify the amount of Notes to be authenticated and the date on which the Notes are to be authenticated, whether the Notes are to be Initial Notes or Additional Notes and whether the Notes are to be issued as Physical
Notes or Global Notes or such other information as the Trustee may reasonably request.
All Notes issued under this Indenture shall be treated as
a single class for all purposes under this Indenture. The Additional Notes shall bear any legend required by applicable law.
Notwithstanding the
foregoing, if any Note shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Note to the Trustee for cancellation as provided in Section 209, for all purposes of this
Indenture such Note shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 204.
Temporary Notes.
Pending the
preparation of definitive Notes, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Notes which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, in registered form without coupons and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Notes may determine, as evidenced by their execution of such Notes.
Every temporary Note shall be executed by the Company and authenticated by the Trustee and registered by the Note Registrar, upon the same conditions, and
with like effect, as a definitive Note.
If temporary Notes are issued, the Company will cause definitive Notes to be prepared without unreasonable delay.
After the preparation of definitive Notes, the temporary Notes shall be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency of the Company in the Place of Payment, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Notes, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Notes, of any authorized denominations and of a like aggregate
principal amount. Until so exchanged the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as definitive Notes.
15
Section 205.
Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in the Place of Payment being herein sometimes collectively referred to as the “
Note Register
”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Notes and of transfers of Notes. The Trustee is hereby appointed “
Note Registrar
” for the purpose of registering Notes and transfers of Notes as herein provided.
Upon surrender for registration of transfer of any Note at the office or agency in the Place of Payment, the Company shall execute, and the Trustee, upon
receipt of an Authentication Order, shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes, of any authorized denominations and of a like aggregate principal amount.
At the option of the Holder, the Notes may be exchanged for other Notes, of any authorized denominations and of a like aggregate principal amount, upon
surrender of the Notes to be exchanged at such office or agency. Whenever any Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes which the Holder making the exchange is
entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the Notes surrendered upon such registration of transfer or exchange.
Every
Note presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Note
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 Notes, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes, other than exchanges
pursuant to Section 204, 806 or 1007 not involving any transfer.
The Company shall not be required (1) to issue, register the transfer of or
exchange Notes during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of the Notes selected for redemption under Section 1003 and ending at the close of business on the day of such
mailing, or (2) to register the transfer or exchange of any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.
Notwithstanding any other provision in this Indenture, no Global Note may be transferred to, or registered or exchanged for Notes registered in the name of,
any Person other than the Depositary for such Global Note or any nominee thereof, and no such transfer may be registered, unless (1) such Depositary (A) notifies the Company that it is unwilling or unable to continue as Depositary for such
Global Note or (B) ceases to be a clearing agency registered under the Exchange Act, (2) the Company executes and delivers to the Trustee a Company Order that such Global Note shall be so transferable, registrable and exchangeable, and
such transfers shall be
16
registrable, (3) there shall have occurred and be continuing an Event of Default with respect to the Notes evidenced by such Global Note. Notwithstanding any other provision in this
Indenture, a Global Note to which the restriction set forth in the preceding sentence shall have ceased to apply may be transferred only to, and may be registered and exchanged for Physical Notes registered only in the name or names of, such Person
or Persons as the Depositary for such Global Note shall have directed and no transfer thereof other than such a transfer may be registered.
Every Note
authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Note to which the restriction set forth in the first sentence of the preceding paragraph shall apply, whether pursuant to this Section,
Section 204, 206, 806 or 1007 or otherwise, shall be authenticated, registered and delivered in the form of, and shall be, a Global Note.
Section 206.
Mutilated, Destroyed, Lost and Stolen Notes.
If any mutilated Note is surrendered to the Trustee, the Company shall execute and the Trustee shall, upon receipt of an Authentication Order, authenticate
and deliver in exchange therefor a new Note and of like principal amount and bearing a number not contemporaneously outstanding.
If there shall be
delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Note 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 the Trustee that such Note has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall, upon receipt of an Authentication Order, authenticate and deliver, in
lieu of any such destroyed, lost or stolen Note, a new Note of like principal amount and bearing a number not contemporaneously outstanding.
In case any
such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note
issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Note, shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Note 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 Notes.
The
provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
17
Section 207.
Payment of Interest; Interest Rights Preserved.
Interest on any Note which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name
that Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest.
Any interest on
any Note which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “
Defaulted Interest
”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by
virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:
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(1)
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The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their respective Predecessor Notes) 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 Note and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit 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 Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the 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 mailed, first-class postage
prepaid, to each Holder of the Notes at his address as it appears in the Note Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on such Special Record Date.
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(2)
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The Company may make payment of any Defaulted Interest on the Notes in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Notes may be listed, and upon such notice as
may be required by such exchange, if, after notice is 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.
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Subject to the foregoing provisions of this Section, each Note delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
Section 208.
Persons Deemed Owners.
Prior to due
presentment of a Note 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 Note is registered as the owner of such Note for the purpose of receiving payment of
principal of and any premium and (subject to Section 207) any interest on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and neither the Company, the Trustee nor 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 Note Registrar will have any responsibility or
liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Note or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Section 209.
Cancellation.
All Notes surrendered
for payment, redemption, registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Notes 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 Notes
previously authenticated hereunder which the Company has not issued and sold, and all Notes so delivered shall be promptly cancelled by the Trustee. No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in
this Section, except as expressly permitted by this Indenture. All cancelled Notes held by the Trustee shall be disposed of in accordance with the Trustee’s customary procedures.
Section 210.
Computation of Interest.
Interest on
the Notes shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 211.
CUSIP Numbers.
The Company in issuing the Notes shall use “CUSIP” numbers (if then generally in use) and the Trustee shall use “CUSIP” numbers in
notices of redemption as a convenience to Holders;
provided that
any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any
change in the “CUSIP” numbers.
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ARTICLE THREE
Satisfaction and Discharge
Section 301.
Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Notes
herein expressly provided for), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
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(A)
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all Notes theretofore authenticated and delivered (other than (i) Notes which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 206, and (ii) Notes for whose
payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 903) have been delivered to the Trustee for
cancellation; or
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(i)
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have become due and payable, or
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(ii)
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will become due and payable at their Stated Maturity within one year, or
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(iii)
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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,
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and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge the entire indebtedness on such Notes not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of
Notes which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
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(2)
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the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
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(3)
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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 have been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee
under Section 507, the obligations of the Trustee to any Authenticating Agent under Section 514 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations of
the Trustee under Section 302 and the last paragraph of Section 903 shall survive such satisfaction and discharge.
Section 302.
Application of Trust Money.
Subject to provisions of the last paragraph of Section 903, all money deposited with the Trustee pursuant to
Section 301 shall be held in trust and applied by it, in accordance with the provisions of the Notes 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 any premium and interest for whose payment such money has been deposited with the Trustee.
ARTICLE FOUR
Events of
Default; Remedies
Section 401.
Events of Default.
“
Event of Default
”, wherever used herein, means any one of the following events (whatever the reason for such Event of Default and
whether it be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
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(1)
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default in the payment of any interest upon any Note when it becomes due and payable, and continuance of such default for a period of 30 days; or
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(2)
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default in the payment of the principal of (or premium, if any, on) any Note at its Maturity; or
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(3)
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default in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25%
in principal amount of the Outstanding Notes, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
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(4)
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a default under any bond, debenture, note or other evidence of indebtedness for money borrowed by the Company in an individual principal amount
outstanding of at least $50,000,000 or under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by the Company in an individual principal amount
outstanding of at least $50,000,000, whether such indebtedness now
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21
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exists or shall hereafter be created, which default shall constitute a failure to pay $50,000,000 or more of the principal of such indebtedness when due and payable after the expiration of any
applicable grace period with respect thereto or which default shall have resulted in such indebtedness becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such payment being
made in full or such acceleration having been rescinded or annulled, within a period of 30 days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Notes a written notice specifying such default and requiring the Company to cause such payment to be made in full or such acceleration to be rescinded or annulled and stating that such notice is a
“
Notice of Default
” hereunder;
provided, however, that
, subject to the provisions of Sections 501 and 502, the Trustee shall not be deemed to have knowledge of such default unless either (A) a Responsible Officer of the
Trustee shall have actual knowledge of such default or (B) the Trustee shall have received at its Corporate Trust Office written notice thereof from the Company, from any Holder, from the holder of any such indebtedness or from the trustee
under any such mortgage, indenture or other instrument referencing this Indenture; or
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(5)
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the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or order adjudging the 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 any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding up
or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or
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(6)
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the commencement by the Company of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the taking of corporate action by the Company in furtherance of any such action.
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Upon receipt by the Trustee of any Notice of Default pursuant to this Section 401, a record date
shall automatically and without any other action by any Person be set for the purpose of determining the Holders of the Outstanding Notes entitled to join in such Notice of Default, which record date shall be the close of business on the day the
Trustee receives such Notice of Default. The Holders of the Outstanding Notes on such record date (or their duly appointed agents), and only such Persons, shall be entitled to join in such Notice of Default, whether or not such Holders remain
Holders after such record date;
provided that
, unless such Notice of Default shall have become effective by virtue of Holders of the requisite principal amount of the Outstanding Notes on such record date (or their duly appointed agents)
having joined therein on or prior to the 90th day after such record date, such Notice of Default shall automatically and without any action by any Person be cancelled and of no further effect. Nothing in this paragraph shall prevent a Holder (or a
duly appointed agent thereof) from giving, before or after the expiration of such 90-day period, a Notice of Default contrary to or different from, or, after the expiration of such period, identical to, a Notice of Default that has been cancelled
pursuant to the proviso to the preceding sentence, in which event a new record date in respect thereof shall be set pursuant to this paragraph.
Section 402.
Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Notes may declare the principal amount of all of the Notes 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 amount) shall become immediately due and payable.
At any time after such a declaration of acceleration 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 Notes, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if all Events of Default with respect to the Notes, other than the non-payment of the principal of the Notes which have become due solely by such declaration of acceleration, have been cured or waived as
provided in Section 413.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Upon receipt by the Trustee of any declaration of acceleration, or any rescission and annulment of any such declaration pursuant to this Section 402, a
record date shall automatically and without any other action by any Person be set for the purpose of determining the Holders of the Outstanding Notes entitled to join in such declaration, or rescission and annulment, as the case may be, which record
date shall be the close of business on the day the Trustee receives such declaration, or rescission and annulment, as the case may be. The Holders of the Outstanding Notes on such record date (or their duly appointed agents), and only such Persons,
shall be entitled to join in such declaration, or rescission and annulment, as the case may be, whether or not such Holders remain Holders after such record date;
provided that
, unless such declaration, or rescission an annulment, as the case
may be, shall have become effective by virtue of Holders of the requisite principal amount of the Outstanding Notes on such record date (or their duly appointed agents) having joined therein on or prior to the 90th day after such record date, such
23
declaration, or rescission and annulment, as the case may be, shall automatically and without any action by any Person be cancelled and of no further effect. Nothing in this paragraph shall
prevent a Holder (or a duly appointed agent thereof) from giving, before or after the expiration of such 90-day period, a declaration of acceleration, or a rescission and annulment of any such declaration, contrary to or different from, or, after
the expiration of such period, identical to, a declaration, or rescission and annulment, as the case may be, that has been cancelled pursuant to the proviso to the preceding sentence, in which event a new record date in respect thereof shall be set
pursuant to this paragraph.
Section 403.
Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
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(1)
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default is made in the payment of any interest on any Note when such interest becomes due and payable and such default continues for a period of 30 days, or
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(2)
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default is made in the payment of the principal of (or premium, if any, on) any Note at the Maturity thereof,
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the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of the Notes, the whole amount then due and payable on the Notes for
principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in the Notes,
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 an Event of Default with respect to the Notes occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Holders of the Notes by such appropriate judicial proceedings as the Trustee shall deem most effective to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 404.
Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other obligor upon the Notes), its property or its creditors, the Trustee shall be entitled
and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee
shall be authorized 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 507.
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No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding;
provided, however, that
the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
Section 405.
Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or
the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Notes in respect of which such judgment has been recovered.
Section 406.
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:
FIRST: To the
payment of all amounts due the Trustee under Section 507; and
SECOND: To the payment of the amounts then due and unpaid for principal of and any
premium and interest on the Notes 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 the Notes for principal and any premium
and interest, respectively.
THIRD: To the Company or to such other person as a court of competent jurisdiction shall direct.
Section 407.
Limitation on Suits.
No Holder of any
Note 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
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(1)
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such Holder has previously given written notice to the Trustee of a continuing Event of Default;
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(2)
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the Holders of not less than 25% in principal amount of the Outstanding Notes shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
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(3)
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such Holder or Holders have offered to the Trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred in complying with such request in such amount as shall be reasonably acceptable
to the Trustee; and
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25
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(4)
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for 60 days after its receipt of such notice, the Trustee has failed to institute a proceeding and no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding Notes;
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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 disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of
such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
Section 408.
Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Note shall have the right, which is absolute and unconditional, to receive payment of
the principal of and any premium and (subject to Section 207) interest on such Note on the respective Stated Maturities expressed in such Note (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of
such right, and such right shall not be impaired without the consent of such Holder.
Section 409.
Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 410.
Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in the last paragraph of
Section 206, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 411.
Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Notes 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.
26
Section 412.
Control by Holders.
The Holders of a majority in principal amount of the Outstanding Notes shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercise any trust or power conferred on the Trustee, with respect to the Notes,
provided that
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(1)
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such direction shall not be in conflict with any rule of law or with this Indenture, and
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(2)
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such direction may not involve the Trustee in personal liability if the Trustee believes indemnity is not adequate.
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The Trustee may also take any other action deemed proper by the Trustee which is not inconsistent with such direction.
Upon receipt by the Trustee of any such direction with respect to the Notes, a record date shall automatically and without any other action by any
Person be set for determining the Holders of the Outstanding Notes entitled to join in such direction, which record date shall be the close of business on the day the Trustee receives such direction. The Holders of the Outstanding Notes on such
record date (or their duly appointed agents), and only such Persons, shall be entitled to join in such direction, whether or not such Holders remain Holders after such record date;
provided that
, unless such direction shall have become
effective by virtue of the Holders of the requisite principal amount of the Outstanding Notes on such record date (or their duly appointed agents having joined therein on or prior to the 90th day after such record date), such direction shall
automatically and without any action by any Person be cancelled and of no further effect. Nothing in this paragraph shall prevent a Holder (or a duly appointed agent thereof) from giving, before or after the expiration of such 90-day period, a
direction contrary to or different from, or, after the expiration of such period, identical to, a direction that has been cancelled pursuant to the proviso to the preceding sentence, in which event a new record date in respect thereof shall be set
pursuant to this paragraph.
Section 413.
Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Notes may on behalf of the Holders of all the Notes waive any past default
hereunder and its consequences, except a default
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(1)
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in the payment of the principal of or any premium or interest on any Note, or
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(2)
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in respect of a covenant or provision hereof which under Article Eight cannot be amended without the consent of the Holder of each Outstanding Note affected.
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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 impair any right consequent thereon.
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Section 414.
Undertaking for Costs.
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, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit (including attorneys’ fees and expenses), and may assess costs against any such party litigant, in the manner and
to the extent provided in the Trust Indenture Act;
provided that
neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by
the Trustee, a suit by a Holder pursuant to Section 408 hereof, or a suit by Holders of more than 10% in principal amount of the then Outstanding Notes.
Section 415.
Waiver of Usury, 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 usury, stay or extension 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 FIVE
The Trustee
Section 501.
Certain
Duties and Responsibilities.
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(a)
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Except during the continuance of an Event of Default,
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(1)
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the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
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(2)
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in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
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(b)
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In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
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(c)
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No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that
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(1)
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this Subsection shall not be construed to limit the effect of Subsection (a) of this Section;
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(2)
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the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
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(3)
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the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Notes,
determined as provided in Sections 101, 104 and 412, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with
respect to the Notes; and
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(4)
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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.
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(d)
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Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this
Section.
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Section 502.
Notice of Defaults.
The Trustee shall give notice of any default actually known to a Responsible Officer the Trustee when, as and to the extent required by the Trust
Indenture Act and in the manner provided by Section 106;
provided, however, that
in the case of any default of the character specified in Section 401(3), no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term “
default
” means any event which is, or after notice or lapse of time or both would become, an Event of Default.
Section 503.
Certain Rights of Trustee.
Subject to
the provisions of Section 501:
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(1)
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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;
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(2)
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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 shall be sufficiently evidenced by a Board
Resolution;
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(3)
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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;
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(4)
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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;
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(5)
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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 pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
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(6)
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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 at the sole cost of the Company and shall incur no liability or additional liability of any
kind by reason of such inquiry or investigation;
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(7)
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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;
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(8)
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the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by
this Indenture;
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(9)
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in no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee
has been advised of the likelihood of such loss or damage and regardless of the form of action;
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(10)
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the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture;
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(11)
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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; and
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(12)
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the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.
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Section 504.
Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and
the Trustee or any Authenticating Agent assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Notes. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Notes or the proceeds thereof.
Section 505.
May Hold Notes.
The Trustee, any Authenticating Agent, any Paying Agent, any Note Registrar or any other agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Notes and, subject to Sections 508 and 513, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Note Registrar or such other agent.
Section 506.
Money Held in Trust.
Money held by
the Trustee, or by any Paying Agent (other than the Company if the Company shall act as Paying Agent), 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 507.
Compensation and
Reimbursement.
The Company agrees
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(1)
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to pay to the Trustee from time to time such compensation as agreed to in writing 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);
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31
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(2)
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to reimburse the Trustee upon its request for all 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 shall be determined to have been caused by its own negligence or willful misconduct; and
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(3)
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to indemnify the Trustee for, and to hold it harmless against, any loss, claim, damage, liability or expense incurred without negligence or willful misconduct on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder or performance of its duties hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.
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As security for the performance of the obligations of the Company under this Section, the Trustee shall have a
claim prior to the Notes upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (and premium, if any) or interest on the Notes.
When the Trustee renders services or incurs expenses after the occurrence of an Event of Default specified in Sections 401(5) or 401(6) hereof, the
compensation for services and expenses are intended to constitute expenses of administration under any applicable bankruptcy or insolvency law or law applicable to creditors’ rights to the extent permitted by applicable law.
The provisions of this Section shall survive the satisfaction, discharge and termination of this Indenture or the earlier resignation or removal of the
Trustee.
Section 508.
Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture and the Company shall take prompt action to have a successor Trustee appointed in the manner provided herein.
Section 509.
Corporate Trustee Required; Eligibility.
There shall at all times be one Trustee hereunder, which shall be a Person that (i) is eligible pursuant to the Trust Indenture Act to act as
such, and (ii) has a combined capital and surplus of at least $50,000,000;
provided, however, that
if the Trustee shall be a member of a bank holding company group, such bank holding company group shall have combined capital and surplus
of at least $50,000,000 and the Trustee shall have a combined capital and surplus of at least $10,000,000. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
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Section 510.
Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable requirements of Section 511.
The Trustee may resign at any time by giving
written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 511 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Notes.
The Trustee may be removed
at any time by Act of the Holders of a majority in principal amount of the Outstanding Notes, delivered to the Trustee and to the Company.
If at any
time:
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the Trustee shall fail to comply with Section 508 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Note for at least six months, or
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(2)
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the Trustee shall cease to be eligible under Section 509 and shall fail to resign after written request therefor by the Company or by any such Holder, or
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(3)
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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,
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then, in any such case, (A) the
Company by a Board Resolution may remove the Trustee, or (B) subject to Section 414, any Holder who has been a bona fide Holder of a Note 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 and the appointment of a successor Trustee.
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, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees (it being understood that at any time there shall be only one
Trustee) and shall comply with the applicable requirements of Section 511.
If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Notes delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 511, become the successor Trustee with respect to the Notes and to that extent supersede the successor Trustee appointed by the Company.
If no successor Trustee with respect to the Notes shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 511, any Holder who has been a bona fide Holder of a Note for at least six
months or the Trustee at the
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expense of the Company 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
Notes.
The Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee to all Holders in
the manner provided in Section 106. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office.
Section 511.
Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to the Notes, every such successor Trustee so appointed 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; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
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 such rights, powers and trusts referred to in this Section, as the case may be.
No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
Section 512.
Merger, Conversion,
Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder,
provided
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
Notes 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 Notes so authenticated with the
same effect as if such successor Trustee had itself authenticated such Notes. In the event any Notes shall not have been authenticated by such predecessor Trustee, any such successor Trustee may authenticate and deliver such Notes, in either its own
name or that of its predecessor Trustee, with the full force and effect which this Indenture provides for the certificate of authentication of the Trustee.
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Section 513.
Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Notes), 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).
Section 514.
Appointment of
Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to the Notes which shall be authorized to act on behalf
of the Trustee to authenticate the Notes issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 206, and Notes so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Notes by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the 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 Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with
the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to 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 provide notice of such appointment to the Holders of the
Notes with respect to which such Authenticating Agent will serve, in the manner provided 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.
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The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services
under this Section.
If an appointment is made pursuant to this Section, the Notes may have endorsed thereon, in addition to the Trustee’s
certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Notes referred to in the
within-mentioned Indenture.
, As Trustee
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By
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As Authenticating Agent
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Date:
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By
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Authorized Officer
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ARTICLE SIX
Holders’ Lists and Reports by Trustee and Company
Section 601.
Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
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(1)
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semi-annually, not more than 15 days after each Regular Record Date, a list for the Notes, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of the Notes as of such Regular
Record Date, and
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(2)
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at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
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excluding from any such list names and addresses received by the Trustee in its capacity as Note Registrar.
Section 602.
Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished
to the Trustee as provided in Section 601 and the names and addresses of Holders received by the Trustee in its capacity as Note Registrar. The Trustee may destroy any list furnished to it as provided in Section 601 upon receipt of a new
list so furnished.
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The rights of the Holders to communicate with other Holders with respect to their rights under this Indenture or
under the Notes, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Notes, by
receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of
Holders made pursuant to the Trust Indenture Act.
Section 603.
Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
A copy of each such report shall, at the time of such transmission to Holders, be
filed by the Trustee with each stock exchange upon which any Notes are listed, with the Commission and with the Company. The Company will notify the Trustee when any Notes are listed or delisted on any stock exchange.
Section 604.
Reports by Company.
The
Company shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act;
provided that
any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the
same is required to be filed with the Commission.
Delivery of such reports, information and documents to the Trustee is for informational purposes
only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
ARTICLE SEVEN
Consolidation, Merger, Conveyance, Transfer or Lease
Section 701.
Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to
any Person, and the Company shall not permit any Person to consolidate with or merge into the Company, unless:
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(1)
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in case the Company shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, the Person formed by such consolidation or into which the Company
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is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety shall be a corporation, limited liability
company, partnership or trust, shall be organized and validly existing under the laws of the United States of America, any State thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest on all the Notes and the performance or observance of every covenant of this Indenture on the part of the
Company to be performed or observed;
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(2)
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immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company as a result of such transaction as having been incurred by the Company at the time of such
transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing;
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(3)
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if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Company would become subject to a mortgage, pledge, lien, security interest or other encumbrance
which would not be permitted by this Indenture, the Company or such successor Person, as the case may be, shall take such steps as shall be necessary effectively to secure the Notes equally and ratably with (or prior to) all indebtedness secured
thereby; and
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(4)
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the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture, comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
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Section 702.
Successor Substituted.
Upon any
consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance with Section 701, the successor
Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Notes.
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ARTICLE EIGHT
Amendments
Section 801.
Amendments Without Consent of Holders.
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:
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(1)
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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 Notes; or
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(2)
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to add one or more covenants of the Company or other provisions for the benefit of the Holders of the Notes or to surrender any right or power herein conferred upon the Company; or
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(3)
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to add any additional Events of Default; or
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(4)
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to evidence and provide for the acceptance of appointment hereunder by a successor Trustee pursuant to the requirements of Section 511; or
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(5)
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to cure any ambiguity or to correct or supplement any provision contained herein which may be defective or inconsistent with any other provision contained herein, make any other changes that do not adversely affect the
interests of the Holders of the Notes or to make such other provisions in regard to matters or questions arising under this Indenture,
provided that
no action under this clause (5) shall adversely affect the interests of the Holders of
the Notes, and
provided further that,
the Trustee shall receive, and (subject to Section 501) shall be fully protected in relying upon, an Opinion of Counsel and Officers’ Certificate stating that the execution of such supplemental
indenture will not adversely affect the interests of the Holders of the Notes; or
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(6)
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to conform the provisions of this Indenture or the Notes to any provision of the “Description of the Notes” section of the Prospectus; or
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(7)
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to provide for the issuance of Additional Notes in accordance with the limitations set forth in this Indenture.
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Section 802.
Amendment with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Notes affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of the Notes under this Indenture;
provided, however, that
no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Note affected thereby,
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change the Stated Maturity of the principal of, or any installment of interest on, any Note, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or
change the coin or currency in which any Note or any premium or interest thereon is payable or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or
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(2)
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reduce the percentage in principal amount of the Outstanding Notes, 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
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(3)
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modify any of the provisions of this Section or Section 413, 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 Note affected thereby,
provided, however, that
this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in
this Section, or the deletion of this proviso, in accordance with the requirements of Sections 511 and 801(4).
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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 803.
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 receive, and (subject to Section 501) shall be fully protected in relying upon, an Opinion of Counsel and Officers’ Certificate stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 804.
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 Notes theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
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Section 805.
Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.
Section 806.
Reference in Notes to Supplemental Indentures.
Notes 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 Notes 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 Notes.
ARTICLE NINE
Covenants
Section 901.
Payment of Principal, Premium and Interest.
The Company covenants and agrees that it will duly and punctually pay the principal of and any premium and interest on the Notes in accordance with the terms
of the Notes and this Indenture.
Section 902.
Maintenance of Office or Agency.
The Company will maintain in the Place of Payment for the Notes an office or agency where the Notes may be presented or surrendered for payment, where the
Notes may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any time the 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 Notes 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 the Place of Payment for the Notes for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
Section 903.
Money for Notes Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to the Notes, it will, on or before each due date of the principal of or any premium
or interest on any of the Notes, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
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Whenever the Company shall have one or more Paying Agents for the Notes, it will, prior to 10:00 a.m. New York
time on each due date of the principal of or any premium or interest on the Notes, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for the Notes other
than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (2) during the continuance of any default by the Company (or any other obligor upon the Notes) in the making of any payment in respect of the Notes, and upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Notes.
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 such 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 money.
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 or any premium or interest on any Note and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company on Company Request (including interest income accrued on said funds to
which the Company is otherwise entitled), or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note, as an unsecured general creditor, shall 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.
Section 904.
Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officers’
Certificate, stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
Section 905.
Existence.
Subject to Article Seven,
the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and
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franchises;
provided, however, that
the Company shall not be required to preserve any such right or franchise if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Holders of the Notes.
Section 906.
Maintenance of Properties.
The
Company will cause all properties used or useful in the conduct of its business to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times;
provided,
however, that
nothing in this Section shall prevent the Company from discontinuing the operation or maintenance of any of such properties if such discontinuance is, in the judgment of the Company, desirable in the conduct of its business and not
disadvantageous in any material respect to the Holders of the Notes.
Section 907.
Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (i) all taxes, assessments and governmental
charges levied or imposed upon the Company or upon the income, profits or property of the Company, and (ii) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a Lien upon the property of the Company;
provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate
proceedings or if such failure to pay or discharge could not reasonably be expected to have a material adverse effect on the business, operations, affairs, financial condition, assets or properties of the Company and its subsidiaries taken as a
whole or on the ability of the Company to pay the Notes in accordance with their terms.
Section 908.
Restrictions on Liens.
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The Company will not, at any time during which any Notes are Outstanding, issue, assume or guarantee any debt for money borrowed (hereinafter referred to as “
Debt
”) secured by any Lien upon any property
or asset of the Company (whether such property or asset is now owned or hereafter acquired), without in any such case effectively securing, prior to or concurrently with the issuance, assumption or guarantee of any such Debt, the Notes (together
with, if the Company shall so determine, any other indebtedness of or guarantee by the Company ranking equally with the Notes and then existing or thereafter created) equally and ratably with (or, at the Company’s option, prior to) such Debt,
provided
,
however
,
that
the foregoing restrictions shall not apply to or prevent the creation of:
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(A)
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Liens on any property acquired, constructed or improved by the Company after the Issue Date that are created or assumed contemporaneously with,
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or within 120 days after, such acquisition or completion of the construction or improvement, or within six months thereafter pursuant to a firm commitment for financing arranged with a lender or
investor within such
120-day
period, to secure or provide for the payment of all or any part of the purchase price of such property or the cost of such construction or improvement incurred after the Issue
Date, or, in addition to Liens contemplated by clauses (1)(B) and (1)(C) below, Liens on any property existing at the time of acquisition thereof,
provided that
the Liens do not apply to any property theretofore owned by the Company
other than, in the case of any such construction or improvement, any theretofore unimproved property on which the property so constructed or the improvement is located;
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(B)
|
existing Liens on any property or indebtedness of a Person that is merged with or into or consolidated with the Company;
provided that
the Liens shall not apply to any property theretofore owned by the Company;
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(C)
|
Liens in favor of the United States of America, any state or any foreign country or any department, agency or instrumentality or political subdivision of any such jurisdiction to secure partial, progress, advance or
other payment pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price or cost of constructing or improving the property subject to such Liens, including, without
limitation, Liens to secure Debt of the pollution control or industrial revenue bond type;
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(D)
|
Liens on current assets of the Company to secure loans which mature within 12 months from the creation thereof and which are made in the ordinary course of business;
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(E)
|
Liens on any property (including any natural gas, oil or other mineral property) of the Company to secure all or part of the cost of exploration or drilling for or development of oil or gas reserves or laying a pipeline
or to secure Debt incurred to provide funds for any such purpose;
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(F)
|
any Lien existing on the Issue Date;
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(G)
|
Liens on moneys or government obligations deposited with a trustee or agent for holders of Debt to defease such Debt; and
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(H)
|
Liens for the sole purposes of extending, renewing or replacing, in whole or in part, Liens securing Debt of the type referred to in the foregoing clauses (1)(A) through (1)(G), inclusive, or this
clause (1)(H);
provided
,
however
,
that
the principal amount of Debt so secured at the time of such extension, renewal or replacement may not be increased, and that such extension, renewal or replacement is limited to all or
part of the property or indebtedness which secured the Lien so extended, renewed or replaced (plus improvements on such property).
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44
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(2)
|
The provisions of Section 908(1) shall not apply to the issuance, assumption or guarantee by the Company of Debt secured by a Lien which would otherwise be subject to such restrictions up to an aggregate amount
that, together with all other Indebtedness of the Company (other than Debt secured by Liens permitted by Section 908(1)) that would otherwise be subject to such restrictions and the Value of all Sale and
Lease-back
Transactions in existence at such time (other than any Sale and
Lease-back
Transaction that, if such Sale and
Lease-back
Transaction had been a Lien, would have been permitted by Section 908(1)(A) and other than Sale and
Lease-back
Transactions as to which application of
amounts have been made in accordance with Section 909(2)), does not at the time the Company issues, assumes or guarantees Debt secured by such Lien exceed 10% of Total Capitalization.
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(3)
|
“
Value
” means, with respect to a Sale and
Lease-back
Transaction, as at any time, the amount equal to the greater of:
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(A)
|
the net proceeds from the sale or transfer of the property leased pursuant to such Sale and
Lease-back
Transaction; and
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(B)
|
the fair value, in the opinion of the Board of Directors of the Company, of such property at the time of entering into such Sale and
Lease-back
Transaction,
|
in either case divided first by the number of full years of the term of the lease and then multiplied by the number of full years of such term
remaining at the time of determination, without regard to any renewal or extension options contained in the lease.
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(4)
|
If at any time the Company shall issue, assume or guarantee any Debt secured by any Lien and if Section 908(1) requires that the Notes be secured equally and ratably with such Debt, the Company will promptly
deliver to the Trustee:
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(A)
|
an Officers’ Certificate stating that the covenant of the Company contained in Section 908(1) has been complied with; and
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(B)
|
an Opinion of Counsel to the effect that such covenant has been complied with, and that any instrument executed by the Company in the performance of such covenant complies with such covenant.
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(5)
|
In the event that the Company shall hereafter secure the Notes equally and ratably with (or prior to) any other Debt or obligation pursuant to the
provisions of this Section 908, the Trustee is hereby authorized to enter into an indenture or agreement supplemental hereto and to take such action, if any, as it may deem advisable to enable it to enforce effectively the rights of the holders
so secured, equally and ratably with such Debt and other obligations;
provided
,
however
,
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45
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|
that
if such indenture or agreement affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture or agreement.
|
Section 909.
Restrictions on Sale and
Lease-back
Transactions.
The Company will not enter into any direct or indirect arrangement with any Person
providing for the lease to the Company of any property of the Company (except for temporary leases for a term, including any renewal thereof, of not more than three years), which property has been or is to be sold or transferred by the Company to
such Person or to any other Person by whom funds have been or are to be advanced on the security of such property (a
“
Sale and
Lease-back
Transaction
”
) unless the proceeds of
such sale are at least equal to the fair value of such property being sold and leased-back and either:
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(1)
|
the Company would be entitled, pursuant to the provisions of Section 908(1)(A) or Section 908(2) to incur Debt secured by a Lien on such property without equally and ratably securing the Notes; or
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|
(2)
|
within 180 days of the effective date of the Sale and
Lease-back
Transaction, the Company applies, or covenants that it will apply, an amount not less than the fair value of such
property to one or more of:
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(A)
|
the payment or other retirement of Funded Debt incurred or assumed by the Company which ranks senior to or
pari passu
with the Notes (other than Funded Debt owned by the Company), or
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(B)
|
the purchase of property of the Company at not more than its fair value (other than the property involved in such sale).
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ARTICLE TEN
Redemption
of Notes
Section 1001.
Optional Redemption.
The Notes shall be redeemable, at the option of the Company, in whole or in part, at the Redemption Price at any time upon notice sent by the Company through
the mail, postage prepaid, at least 30 days and not more than 60 days prior to the date fixed for redemption, to the registered Holder of each Note to be redeemed in whole or in part, addressed to such Holder as such address shall appear in the Note
Register. Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes or the portions of the Notes called for redemption.
The Trustee shall not be responsible for the computation of the Redemption Price with respect to any redemption occurring prior to April 1, 2043. The
Quotation Agent shall compute such Redemption Price. The Company shall promptly notify the Trustee of such Redemption Price and the computation thereof.
46
Section 1002.
Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of less
than all the Notes, the Company shall, at least 45 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 Notes
to be redeemed.
Section 1003.
Selection by Trustee of Notes to Be Redeemed.
If less than all the Notes are to be redeemed, the particular Notes to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Notes 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 (equal to the minimum authorized denomination
for the Notes or any integral multiple thereof) of the principal amount of the Notes of a denomination larger than the minimum authorized denomination for the Notes.
The Trustee shall promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Notes 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 Notes shall relate, in the case of any Notes redeemed or to be redeemed only in part, to the portion of the principal amount of such Notes which has been or is to be redeemed.
If the Notes are represented by Global Notes, the beneficial interests therein shall be selected by the Depository in accordance with its customary
procedures.
Section 1004.
Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106, at least 30 and not more than 60 days prior to the Redemption Date, to each
Holder of Notes to be redeemed.
All notices of redemption shall state:
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(2)
|
the Redemption Price (or the computation method to determine the Redemption Price),
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|
|
(3)
|
if less than all the Outstanding Notes are to be redeemed, the identification (and, in the case of partial redemption of any Notes, the principal amounts) of the particular Notes to be redeemed,
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|
(4)
|
that on the Redemption Date the Redemption Price will become due and payable upon each such Note to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
|
47
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|
(5)
|
the place or places where such Notes are to be surrendered for payment of the Redemption Price, and
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|
(6)
|
the CUSIP numbers of the Notes to be redeemed.
|
Notice of redemption of the Notes to be redeemed at the
election of the Company shall be given by the Company or, at the Company’s request and provision of such notice information, by the Trustee in the name and at the expense of the Company. Notices of redemption shall be irrevocable.
Section 1005.
Deposit of Redemption Price.
On or
before 10:00 a.m. New York time on 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 903) an amount
of money sufficient to pay the Redemption Price of all the Notes which are to be redeemed on that date.
Section 1006.
Notes Payable on Redemption
Date.
Notice of redemption having been given as aforesaid, the Notes so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price, and from and after such date (unless the Company shall default in the payment of the Redemption Price) such Notes shall cease to bear interest and, except as provided below, shall be void. Upon surrender of any such Note for
redemption in accordance with said notice, such Note shall be paid by the Company at the Redemption Price;
provided, however, that
installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Notes, or one or more Predecessor Notes, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 207.
If any Note called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the Note.
Section 1007.
Notes Redeemed in Part.
Any Note which is to be redeemed only in part shall be surrendered at the Place of Payment therefor (with, if the 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 his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall, upon
receipt of an Authentication Order, authenticate and deliver to the Holder of such Note without service charge, a new Note or Notes, 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 Note so surrendered.
48
ARTICLE ELEVEN
Defeasance and Covenant Defeasance
Section 1101.
Company’s Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option by Board Resolution at any time, to have either Section 1102 or Section 1103 applied to the Outstanding Notes
upon compliance with the conditions set forth below in this Article Eleven.
Section 1102.
Defeasance and Discharge.
Upon the Company’s exercise of the option provided in Section 1101 to have this Section 1102 applied to the Outstanding Notes, the Company
shall be deemed to have been discharged from its obligations with respect to the Outstanding Notes as provided in this Section on and after the date the conditions set forth in Section 1104 are satisfied (hereinafter called
“
Defeasance
”). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Notes and to have satisfied all its other obligations under
the Notes and this Indenture (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the
rights of Holders of the Notes to receive, solely from the trust fund described in Section 1104 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on such Notes when payments are
due, (2) the Company’s obligations with respect to the Notes under Sections 204, 205, 206, 902 and 903, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (4) this Article Eleven. Subject to
compliance with this Article Eleven, the Company may exercise its option provided in Section 1101 to have this Section 1102 applied to the Outstanding Notes notwithstanding the prior exercise of its option provided in Section 1101 to
have Section 1103 applied to the Outstanding Notes.
Section 1103.
Covenant Defeasance.
Upon the Company’s exercise of the option provided in Section 1101 to have this Section 1103 applied to the Outstanding Notes, (i) the
Company shall be released from its obligations under Sections 905, 906, 907, 908, 909 and Clauses 2 and 3 of Section 701, and (2) the occurrence of any event specified in Sections 401(3) (with respect to Section 905, 906, 907, 908,
909 or Clauses 2 or 3 of Section 701) and 401(4) shall be deemed not to be or result in an Event of Default on and after the date the conditions set forth in Section 1104 are satisfied (hereinafter called “
Covenant
Defeasance
”). For this purpose, such Covenant Defeasance means that 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 specified Section (to the extent so
specified in the case of Section 401(3)), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document,
but the remainder of this Indenture and the Notes shall be unaffected thereby.
49
Section 1104.
Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 1102 or Section 1103 to the Outstanding Notes:
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(1)
|
The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee that satisfies the requirements contemplated by Section 509 and agrees to comply with the provisions of
this Article Eleven applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Outstanding Notes, (A) money in an
amount, or (B) U.S. Government Obligations that 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, money in an
amount, or (C) a combination thereof, in each case, sufficient, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and any premium and interest on the
Notes on the respective Stated Maturities, in accordance with the terms of this Indenture and the Notes. Unless such deposit consists solely of money, the Company shall provide an opinion of a nationally recognized firm of independent public
accountants expressed in a written certification delivered to the Trustee to the effect that such deposit is sufficient to pay and discharge the principal of and any premium and interest on the Notes on the respective Stated Maturities, in
accordance with the terms of this Indenture and the Notes. As used herein, “
U.S. Government Obligation
” means (x) any security that is (i) a direct obligation of the United States of America for the payment of which the
full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of America, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to any U.S. Government Obligation specified in Clause (x) and held by such custodian for the account of the holder of such depositary receipt,
or with respect to any specific payment of principal of or interest on any such U.S. Government Obligation,
provided that
(except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder
of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
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(2)
|
In the case of an election under Section 1102, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable Federal income tax law, in either case (A) or (B) to the effect
that, and based thereon such opinion
|
50
|
|
shall confirm that, the Holders of the Outstanding Notes will not recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with
respect to the Notes and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur.
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(3)
|
In the case of an election under Section 1103, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Notes will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to the Notes and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if
such deposit and Covenant Defeasance were not to occur.
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(4)
|
The Company shall have delivered to the Trustee an Officers’ Certificate to the effect that the Notes, if then listed on any securities exchange, will not be delisted as a result of such deposit.
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(5)
|
No Event of Default or event that (after notice or lapse of time or both) would become an Event of Default shall have occurred and be continuing at the time of such deposit or, with regard to any Event of Default or any
such event specified in Sections 401(5) and (6), at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day).
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(6)
|
Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act).
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(7)
|
Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound.
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(8)
|
The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
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(9)
|
Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended, unless such trust
shall be qualified under such Act or exempt from regulation thereunder.
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Section 1105.
Deposited Money and U.S. Government
Obligations to be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 903, all money and
U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 1106, the Trustee and any such other
51
trustee are referred to collectively as the “
Trustee
”) pursuant to Section 1104 in respect of the Notes shall be held in trust and applied by the Trustee, in accordance with
the provisions of the Notes and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of the Notes, of all sums due and to
become due thereon in respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 1104 or the principal and interest received in respect thereof other than any such tax, fee or other charge that by law is for the account of the Holders of the Outstanding Notes.
Anything in this Article Eleven to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 1104 with respect to the Notes that, 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 that would then be required to be deposited to effect an equivalent Defeasance or Covenant Defeasance with respect to the Notes.
Section 1106.
Reinstatement.
If the Trustee or the
Paying Agent is unable to apply any money in accordance with this Article Eleven with respect to the Notes by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application,
then the Company’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to this Article Eleven with respect to the Notes until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 1105 with respect to the Notes in accordance with this Article Eleven;
provided, however, that
if the Company makes any payment of principal of or any premium or interest on
any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of the Notes to receive such payment from the money so held in trust.
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
52
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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SOUTHWEST GAS CORPORATION
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By:
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/s/ Kenneth J. Kenny
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Name: Kenneth J. Kenny
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Title: Vice President/Finance/Treasurer
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
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By:
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R. Tarnas
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Name: R. Tarnas
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Title: Vice President
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53
EXHIBIT A
[FORM OF FACE OF NOTE]
[Insert
Global Note Legend, if applicable pursuant to the provisions of the Indenture]
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REGISTERED
|
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REGISTERED
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NO.
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PRINCIPAL AMOUNT
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CUSIP No. 844895 AW2
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$
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ISIN No. US844895AW27
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SOUTHWEST GAS CORPORATION
4.875% SENIOR NOTE DUE 2043
Interest Payment Dates: April 1 and October 1
Place of Payment: Office of the Trustee
Regular Record Dates: March 15 and September 15
SOUTHWEST GAS CORPORATION, a California corporation (hereinafter called the “Company,” which term includes any successor corporation
under the Indenture), for value received, hereby promises to pay to or registered assigns, the principal sum of
Dollars ($ ) on October 1, 2043 and to pay interest thereon from October 4, 2013, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, on April 1 and October 1 in each year, beginning on April 1, 2014, at the rate of 4.875% per annum, until the principal hereof shall have become due and payable,
and on any overdue principal and (without duplication and to the extent that payment of such interest is enforceable under applicable law) on any overdue interest at the same rate per annum compounded
semi-annually.
The amount of interest payable on any Interest Payment Date shall be computed on the basis of a
360-day
year of twelve
30-day
months. In the event that any date on which interest is payable on this Note is not a Business Day, then payment of interest payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of such delay). The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose
name this Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be the March 15 or September 15 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may, upon election by the Company following notice to the Trustee,
be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, by giving notice to Holders of
A-1
Notes not less than 10 days prior to such Special Record Date and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment or as otherwise specified in the
Indenture.
Payment of the principal of and interest on this Note will be made at the office of the Trustee, initially at 2 N. LaSalle
Street, Suite 1020, Chicago, Illinois 60602, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts;
provided, however
,
that
at the option of the
Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Note Register on the Regular Record Date, except that in the event that this Note is registered in the name of
the nominee of a clearing agency, interest payments will be made in the form of immediately available funds.
Reference is hereby made to
the additional provisions of this Note set forth on the reverse hereof, which additional provisions shall for all purposes have the same effect as if set forth on the face hereof.
Unless the certificate of authentication below has been executed by the Trustee referred to on the reverse hereof, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
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Dated:
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SOUTHWEST GAS CORPORATION
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By:
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Attest:
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By:
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[Assistant] Secretary
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TRUSTEE’S CERTIFICATE OF AUTHENTICATION
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Dated:
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THE BANK OF NEW YORK MELLON
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TRUST COMPANY, N.A., as Trustee, as
Authenticating Agent
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By:
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Authorized Officer
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A-2
[FORM OF REVERSE SIDE OF THE NOTE
]
This Note is one of a duly authorized issue of obligations of the Company (herein called the “
Notes
”), issued and to be
issued under an Indenture (the “
Indenture
”) dated as of October 4, 2013 between the Company and The Bank of New York Mellon Trust Company, N.A., as Trustee (herein called the “
Trustee
”, which term includes any
successor trustee under the Indenture). Reference to the Indenture is hereby made for a statement of the respective rights, limitations of rights, duties and immunities of the Company, the Trustee and the Holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered. Subject to the terms of the Indenture, the Company shall be entitled to issue Additional Notes pursuant to Section 201 of the Indenture.
All or a portion of the Notes (including any Additional Notes) are subject to redemption at the option of the Company upon not less than 30
days’ and not more than 60 days’ notice by mail (i) at any time prior to April 1, 2043, at a Redemption Price equal to the greater of (a) 100% of the principal amount of the Notes to be redeemed on the Redemption Date
specified in the notice of redemption, plus accrued and unpaid interest on such Notes up to, but excluding, such Redemption Date, or (b) as determined by the Quotation Agent, the sum of the present values of the remaining scheduled payments of
principal and interest on the Notes to be redeemed on such Redemption Date (not including any portion of payments of interest accrued to such Redemption Date) discounted to such Redemption Date on a
semi-annual
basis (assuming a
360-day
year consisting of twelve
30-day
months) at the Adjusted Treasury Rate, plus 20 basis
points, plus accrued and unpaid interest thereon up to, but excluding such Redemption Date, or (ii) at any time on or after April 1, 2043 (six months prior to the maturity date of the Notes), 100% of the principal amount of the Notes to be
redeemed on the Redemption Date specified in the notice of redemption, plus accrued and unpaid interest on such Notes up to, but excluding, such Redemption Date.
In the event of redemption of this Note in part only, a new Note or Notes for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon cancellation of this Note.
In certain circumstances described in the Indenture, the Company’s obligations in
respect of the Notes or in respect of certain covenants made for the benefit of the Notes may be discharged prior to payment upon depositing with the Trustee cash and/or U.S. Government Obligations in the required amount and upon compliance with
certain other provisions of the Indenture.
If an Event of Default with respect to Notes occurs and is continuing, the principal of the
Notes may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture contains provisions
permitting the Company and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes affected at the time outstanding to execute supplemental indentures for the purpose of adding any
provisions to, changing in any manner, or eliminating any of the provisions of the Indenture, or for the purpose of modifying in any manner the rights of the Holders of the Notes;
provided
,
A-3
however
,
that
no supplemental indenture shall (i) change the stated maturity of the principal or interest on any Note, (ii) reduce the principal amount of or the interest
or premium payable on any Note, (iii) change the currency in which any Note is payable, (iv) impair the right of any Holder of any Note to bring suit to enforce any payment, (v) reduce the percentage of registered Holders of Notes,
the Holders of which are required to consent to any amendment, modification or waiver or (vi) modify certain of the provisions in the indenture relating to supplemental indentures, in each case, without the consent of the registered Holder of
each Note affected thereby. The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Notes outstanding and affected thereby, on behalf of all of the Holders of the Notes, to waive any past
default in the performance of any of the covenants contained in the Indenture, or established pursuant to the Indenture, and its consequences, except a default (i) in the payment of the principal of, premium or interest on any of the Notes, or
(ii) in respect of a provision contained in the Indenture which cannot be modified or amended without the consent of the Holders of each outstanding Note affected thereby. Any consent or waiver by the registered Holder of this Note (unless
revoked as provided in the Indenture) shall be conclusive and binding upon that Holder and upon all future Holders and owners of this Note and of any Note issued in exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of the consent or waiver is made upon this Note.
In certain limited
circumstances, the Indenture may be amended, and the rights and obligations of the Company and the rights of the Holders may be modified, at any time by the Company and the Trustee without notice to or consent of the Holders.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on this Note at the times, places and rate, and in the coin or currency, described herein.
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note is registrable in the Note
Register upon surrender of this Note for registration of transfer at the office or agency of the Company in any place where the principal of and interest on this Note are payable, if duly endorsed by, or if accompanied by a written instrument of
transfer (in a form that is satisfactory to the Company and the Note Registrar) duly executed by, the Holder hereof or his attorney duly authorized in writing; thereupon one or more new Notes, of authorized denominations and like aggregate principal
amount, will be issued to the designated transferee or transferees. The Notes are issuable only in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture
and subject to certain limitations therein set forth, the Notes are exchangeable for other Notes, as requested by the Holder surrendering the same. No service charge shall be made for any such registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith to the extent provided in the Indenture.
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note is overdue, and neither the Company, the Trustee nor any agent shall be affected by notice to the contrary.
A-4
No recourse shall be had for the payment of the principal of or the interest on this Note, or for
any claim based hereon or on the Indenture, against any incorporator, shareholder, officer or director, past, present or future, as such, of the Company or of any predecessor or successor Corporation, under any rule of law, statute or constitution
or by the enforcement of any assessment or otherwise, all such liability being released by the Holder by accepting this Note and being likewise waived and released by the terms of the Indenture.
All capitalized terms used in this Note without definitions that are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
A-5
[FORM OF ASSIGNMENT]
For value received, the undersigned hereby sells, assigns and transfers unto
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[Please insert Social Security Number or Tax Identification Number of Assignee]
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[Please print or type name of Assignee]
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the within Note of Southwest Gas Corporation and does hereby irrevocably constitute and appoint
Attorney to transfer said Note on the books of the
within-named
corporation, with full power of substitution in the premises.
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Dated:
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By:
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Authorized Officer
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Signature Guarantee:
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A-6
EXHIBIT B
THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS GLOBAL NOTE IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
EVERY SECURITY DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS GLOBAL NOTE SHALL BE A GLOBAL NOTE SUBJECT TO THE FOREGOING, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED ABOVE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
(“
DTC
”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS TO BE MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
B-1
