Attached files
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8-K - FORM 8-K - ATMOS ENERGY CORP | d82963e8vk.htm |
EX-4.2 - EX-4.2 - ATMOS ENERGY CORP | d82963exv4w2.htm |
Exhibit 4.1
ATMOS ENERGY CORPORATION
Officers Certificate Pursuant to Section 301 of the Indenture
June 10, 2011
Each of the undersigned, Fred E. Meisenheimer, Senior Vice President and Chief Financial
Officer, and Louis P. Gregory, Senior Vice President and General Counsel of Atmos Energy
Corporation (the Company) certifies, pursuant to the authority delegated to each of them, as an
officer of the Company, pursuant to the resolutions adopted on May 4, 2011 by the board of
directors of the Company (the Board) (copies of which resolutions are attached hereto as
Exhibit I), that pursuant to Section 301 of the Indenture dated as of March 26, 2009 (the
Indenture) between the Company and U.S. Bank National Association, as trustee (the Trustee), a
series of debt securities of the Company is hereby established with the following terms and
provisions (unless otherwise defined herein, capitalized terms used herein have the meaning given
thereto in the Indenture):
1. The title of the series of the securities is the 5.50% Senior Notes due 2041 (the
Notes).
2. The Notes are unsubordinated and will rank equally with all of the Companys other
unsecured and unsubordinated debt. Subordinated debt will rank junior to the Notes and the
Companys other senior debt.
3. The aggregate principal amount of the Notes that may be issued under the Indenture,
in connection with the Underwriting Agreement, dated as of June 7, 2011, between the Company
and certain underwriters named therein, is $400,000,000, and the Stated Maturity of the
Notes is June 15, 2041. The Notes shall be offered to the public at a price representing
99.678% of their principal amount.
4. The Notes shall bear interest at the rate of 5.50% per annum. Interest on the
Notes will be payable in arrears on June 15 and December 15 of each year (each, an Interest
Payment Date), beginning December 15, 2011. Interest payable on each Interest Payment Date
will include interest accrued from and including June 10, 2011, or from and including the
most recent Interest Payment Date to which interest has been paid or duly provided for, as
the case may be, to but excluding such Interest Payment Date. Interest will be computed on
the basis of a 360-day year of twelve 30-day months. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Holder in whose name the Notes are registered at the close of
business on the June 1 or December 1 (whether or not a Business Day) preceding the
respective Interest Payment Date. The payment of any Defaulted Interest on the Notes shall
be payable to the Holders of the Notes on a Special Record Date established therefor
pursuant to the Indenture, or shall be paid at any time in any other lawful manner, all as
more fully provided in the Indenture.
5. Payment of the principal of (and premium, if any) and interest on the Notes will be
made at the office or agency of the Company maintained for that purpose in the Borough of
Manhattan, the City of New York, or at such other office or agency of the
Company as may be maintained for such purpose, 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. So long as the Notes remain in book-entry form, all payments of principal
and interest will be made by the Company in immediately available funds.
6. The Company may redeem the Notes prior to maturity at its option, at any time in
whole or from time to time in part. Prior to December 15, 2040, the Redemption Price shall
be equal to the greater of:
(a) 100% of the principal amount of the Notes to be redeemed, and
(b) as determined by the Quotation Agent (as defined below), the sum of the present
values of the Remaining Scheduled Payments (as defined below) of principal and interest on
the Notes to be redeemed discounted to the Redemption Date on a semi-annual basis assuming a
360-day year consisting of twelve 30-day months at the Adjusted Treasury Rate (as defined
below) plus 20 basis points;
plus, in each case, accrued and unpaid interest on the principal amount of Notes being
redeemed to the Redemption Date.
At any time on or after December 15, 2040, the Redemption Price shall be equal to 100% of
the principal amount of the Notes to be redeemed, plus accrued and unpaid interest thereon
to the Redemption Date.
Adjusted Treasury Rate means, for any Redemption Date, the rate per annum equal to
the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a
price of the Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for that Redemption Date;
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 a selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Notes to be redeemed;
Comparable Treasury Price means, for any Redemption Date, the average of the
Reference Treasury Dealer Quotations for that Redemption Date;
Quotation Agent means the Reference Treasury Dealer appointed by the Company;
Reference Treasury Dealer means each of BNP Paribas Securities Corp., Morgan Stanley
& Co. LLC, UBS Securities LLC and a Primary Treasury Dealer (as defined below) selected by
Wells Fargo Securities, LLC, and any of their successors; provided, however, if any of the
foregoing ceases to be a primary U.S. government securities dealer in New York City (a
Primary Treasury Dealer), the Company will substitute therefor another Primary Treasury
Dealer;
Reference Treasury Dealer Quotation means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average, as determined by the
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Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed, in
each case, as a percentage of its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer by 5:00 p.m. on the third Business Day preceding such Redemption
Date; and
Remaining Scheduled Payments means, with respect to each Note to be redeemed, the
remaining scheduled payments of the principal and interest on such Note that would be due
after the related Redemption Date but for such redemption; provided, however, that if such
Redemption Date is not an Interest Payment Date, the amount of the next succeeding scheduled
interest payment on such Note will be reduced by the amount of interest accrued on such Note
to such Redemption Date.
7. In the case of a partial redemption of the Notes, the Notes to be redeemed shall be
selected 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 of the principal of the Notes. A partial redemption
shall not reduce the portion of the principal amount of a Note not redeemed to a principal
amount of less than $2,000. Notice of any redemption will be mailed by first class mail at
least 30 days but not more than 60 days before the Redemption Date to each Holder of the
Notes to be redeemed at its registered address. If any Notes are to be redeemed in part
only, the notice of redemption will state the portion of the principal amount of the Notes
to be redeemed. A new Note in a principal amount equal to the unredeemed portion of the
Note will be issued in the name of the Holder of the Note upon surrender for cancellation of
the original Note. 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.
8. Section 703 of the Indenture is replaced with the following in its entirety for
purposes of the Notes only:
The Company shall:
(1) file with the Trustee, within 30 days after the Company has filed the same with the
Commission, unless such reports are available on the Commissions EDGAR filing system (or
any successor thereto), copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the
Company is not required to file information, documents or reports pursuant to either of such
Sections, then the Company shall file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be required pursuant
to Section 13 of the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information,
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documents and reports with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit to all Holders, as their names and addresses appear in the Security
Register, within 30 days after the filing thereof with the Trustee, in the manner and to the
extent provided in TIA Section 313(c), such summaries of any information, documents and
reports required to be filed by the Company pursuant to Subsections (1) and (2) of this
Section 703 as may be required by rules and regulations prescribed from time to time by the
Commission.
9. The Company has no obligation to redeem, purchase or repay the Notes pursuant to any
mandatory redemption or sinking fund or analogous provisions or at the option of the Holder
thereof.
10. The entire $400,000,000 principal amount of the Notes shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to the Indenture.
11. The defeasance and covenant defeasance provisions of Article Fourteen of the
Indenture shall apply to the Notes.
12. The Trustee, the initial Paying Agent and the initial Security Registrar for the
Notes shall be U.S. Bank National Association. The Security Register for the Notes shall be
initially maintained at, and the place where such Notes may be surrendered for registration
of transfer or exchange shall be, the Trustees Corporate Trust Office located at 1349 West
Peachtree Street, Suite 1050, Atlanta, Georgia.
13. The Notes will be issued in registered permanent global form and each evidenced by
a global security (a Global Security) in substantially the form attached hereto as
Exhibit II, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by the Indenture, and may have imprinted or
otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with
the provisions of the Indenture, as may be required to comply with any law or with any rules
or regulations pursuant thereto, or with any rules of any securities exchange or to conform
to general usage, all as may be determined by the officers executing each such Global
Security, as evidenced by their execution of such Global Security. The beneficial owners of
interests in each of the Global Securities may exchange such interests for Notes, as
applicable, in certificated form (the Definitive Notes) only in limited circumstances as
provided in the Indenture. In the event that Definitive Notes are issued in exchange for a
Global Security, the form of certificate evidencing each Definitive Note shall be in
substantially the form of the attached Global Security, with such changes as are necessary
to evidence the Notes in definitive form rather than as a Global Security. The Company
initially appoints DTC to act as Depository with respect to the Notes.
14. The Notes are issuable in denominations of $2,000 and any integral multiples of
$1,000 in excess thereof.
15. The Events of Default set forth in the Indenture shall apply to the Notes.
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16. The Company will not pay Additional Amounts on the Notes held by any Holder who is
not a United States person in respect of any tax, assessment or governmental charge withheld
or deducted.
15. The Company may, at any time, without the consent of the Holders of the Notes,
create and issue additional securities having the same ranking, interest rate, maturity and
other terms as the Notes. Any such additional securities shall be consolidated and form the
same series of the Notes having the same terms as to status, redemption and otherwise as the
Notes under the Indenture.
Each of us further certifies that the form and terms of the Notes as established in this
certificate have been established pursuant to Section 301 of the Indenture and comply with the
Indenture.
[Signature page follows]
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IN WITNESS WHEREOF, I have executed this certificate as of the date first written above.
By: | /s/ Fred E. Meisenheimer | |||||
Title: Senior Vice President and Chief Financial Officer |
IN WITNESS WHEREOF, I have executed this certificate as of the date first written above.
By: | /s/ Louis P. Gregory | |||||
Title: Senior Vice President and General Counsel |