INDENTURE, dated as of January 1, 1996, between PUBLIC SERVICE
COMPANY OF NORTH CAROLINA, INCORPORATED, a North Carolina corporation (the
"Company"), and FIRST UNION NATIONAL BANK OF NORTH CAROLINA, as trustee (the
"Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness ("Securities"), to be
issued in one or more series as herein provided and to rank as to priority of
payment equally with all other outstanding unsubordinated and unsecured
indebtedness of the Company.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders (as defined below) thereof, it is mutually
covenanted and agreed as follows for the equal and ratable benefit of the
Holders of the Securities:
ARTICLE
1.
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1. 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 GAAP;
(4) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision; and
(5) all references to any law shall include such law or any
successor law as amended, supplemented or otherwise modified and
in effect from time to time, and any other law in substance
substitute therefor.
"Act" shall have the meaning set forth in Section 1.4(a).
"Affiliate" of any specified Person means any Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For 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.
"Agent" means any Paying Agent or Registrar.
"Attributable Debt" means, as to a lease under which any Person is
at the time liable that is required to be classified and accounted for as a
Capitalized Lease Obligation on a Person's balance sheet under GAAP, at any
date as of which the amount thereof is to be determined, the total net amount
of rent required to be paid by such Person under such lease during the
remaining primary term thereof, discounted from the respective due dates
thereof to such date at the rate per annum equal to the interest rate
implicit in such lease. The net amount of rent required to be paid under any
such lease for such period shall be the aggregate amount of rent payable by
lessee with respect to such period after excluding amounts required to be
paid on account of maintenance and repairs, insurance, taxes, assessments,
water rates and similar expenses or any amount required to be paid by such
lessee thereunder contingent upon the amount of revenues (or other similar
contingent amounts). In the case of any lease which is terminable by the
lessee upon the payment of a penalty, such net amount shall also include the
amount of such penalty, but no rent shall be considered as required to be
paid under such lease subsequent to the first date upon which it may be so
terminated. Notwithstanding the foregoing, the term Attributable Debt
excludes any amounts in respect of any Sale and Leaseback Transaction which
the Company or a Subsidiary is permitted to enter into in accordance with the
last sentence of Section 9.9 of this Indenture.
"Authenticating Agent" means any authenticating agent appointed by
the Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general circulation, in
the official language of the country of publication or in the English
language, customarily published on each Business Day whether or not published
on Saturdays, Sundays or holidays. Whenever successive publications in an
Authorized Newspaper are required hereunder they may be made (unless
otherwise expressly provided herein) on the same or different days of the
week and in the same or different Authorized Newspapers.
"Bankruptcy Law" shall have the meaning set forth in Section 5.1.
"Bearer Security" means any Security issued hereunder which is
payable to bearer.
"Board" or "Board of Directors" means the Board of Directors of the
Company, or any other duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board of
Directors, 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 the certificate, and delivered to the
Trustee.
"Business Day" when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment or
particular location are authorized or obligated by law or executive order to
close.
"Capitalized Lease Obligation" means, as applied to any Person, the
rental obligation under any lease of any Property (whether real, personal or
mixed) the discounted present value of the rental obligations of such Person
as lessee under which, in conformity with GAAP, is required to be capitalized
on the balance sheet of that Person.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
or, if at any time after the execution of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the party named as the Company in the first
paragraph of this Indenture until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
means such successor.
"Company Order" and "Company Request" mean, respectively, a written
order or request signed in the name of the Company by two Officers, one of
whom must be the Chairman of the Board, the President, the Chief Financial
Officer, the Treasurer, the Assistant Treasurer, the Controller or a Vice-
President of the Company.
"Consolidated Net Tangible Assets" means, with respect to the
Company as of any date, the total assets of the Company as they appear on the
most recently prepared consolidated balance sheet of the Company as of the
end of a fiscal quarter, less (i) all liabilities shown on such consolidated
balance sheet that are classified and accounted for as current liabilities or
that otherwise would be considered current liabilities under GAAP; and (ii)
all assets shown on such consolidated balance sheet that are classified and
accounted for as intangible assets of the Company or that otherwise would be
considered intangible assets under GAAP, including, without limitation,
franchises, licenses, patents and patent applications, trademarks, brand
names and goodwill.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at 230 South Tryon
Street, 9th Floor, Charlotte, North Carolina 28288-1179, Attention:
Corporate Trust Administration.
"Custodian" shall have the meaning set forth in Section 5.1.
"Default" means any event which is, or after notice or passage of
time, or both, would be, an Event of Default.
"Defaulted Interest" shall have the meaning set forth in Section
3.7(b).
"Depository" when used with respect to the Securities of or within
any series issuable or issued in whole or in part in global form, means the
Person designated as Depository by the Company pursuant to Section 3.1 until
a successor Depository shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each
Person which is then a Depository hereunder, and if at any time there is more
than one such Person, shall be a collective reference to such Persons.
"Dollar" means the currency of the United States as at the time of
payment is legal tender for the payment of public and private debts.
"Event of Default" shall have the meaning set forth in Section 5.1.
"Fiscal Year" means the fiscal year of the Company, which as of the
date hereof consists of the 12 month period ending September 30.
"Funded Debt" means all indebtedness for borrowed money owed or
guaranteed by the Company or any of its Subsidiaries and any other
indebtedness which, under GAAP, would appear as indebtedness on the most
recent consolidated balance sheet of the Company, which matures by its terms
more than 12 months from the date of such consolidated balance sheet or which
matures by its terms in less than 12 months but by its terms is renewable or
extendible beyond 12 months from the date of such consolidated balance sheet
at the option of the borrower.
"GAAP" means generally accepted accounting principles in the United
States as in effect on the date of application thereof.
"Government Obligations" means securities which are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment
of which is unconditionally guaranteed as a full faith and credit obligation
by the United States, which, in either case, are not callable or redeemable
at the option of the issuer thereof, and shall also include a depository
receipt issued by a bank or trust company subject to federal or state
supervision or examination with a combined capital and surplus of at least
$50,000,000, as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government
Obligation held by such custodian for the account of the holder of a
depository receipt, provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of interest on
or principal of the Government Obligation evidenced by such depository
receipt.
"Holder" means, with respect to a Bearer Security, a bearer thereof
or of a coupon appertaining thereto and, with respect to a Registered
Security, a person in whose name a Security is registered on the Register.
"Indenture" means this Indenture as originally executed or as
amended or supplemented from time to time and shall include the forms and
terms of particular series of Securities established as contemplated
hereunder.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"interest" when used with respect to an Original Issue Discount
Security which by its terms bears interest only after maturity, means
interest payable after maturity.
"Interest Payment Date" when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Lien" means any mortgage, pledge, lien, charge, security interest,
trust arrangement, conditional sale or other title retention agreement or
other encumbrance of any nature whatsoever.
"Maturity" when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the President, any Vice-
President, the Chief Financial Officer, the Treasurer, the Assistant
Treasurer, the Controller, the Secretary or any Assistant Secretary of the
Company.
"Officer's Certificate," when used with respect to the Company,
means a certificate signed by an Officer who must be the Chairman of the
Board, the President, the Chief Financial Officer, the Treasurer, the
Assistant Treasurer, the Controller or a Vice-President of the Company.
"Opinion of Counsel" means a written opinion from the general
counsel of the Company or other legal counsel who is reasonably acceptable to
the Trustee. Such counsel may be an employee of or counsel to the Company.
"Original Issue Discount Security" means any Security which provides
for an amount less than the stated principal amount thereof to be due and
payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
"Outstanding," when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment 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 Securities and any
coupons appertaining thereto, provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provisions therefor satisfactory to the Trustee have been
made;
(iii) Securities, except to the extent provided in Sections 4.4
and 4.5, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article 4; and
(iv) Securities which have been paid pursuant to Section 3.6 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, or
whether sufficient funds are available for redemption or for any other
purpose, and for the purpose of making the calculations required by Section
313 of the Trust Indenture Act, (a) the principal amount of any Original
Issue Discount Securities that may be counted in making such determination or
calculation and that shall be deemed to be Outstanding for such purpose shall
be equal to the amount of principal thereof that would be (or shall have been
declared to be) due and payable, at the time of such determination, upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.2,
and (b) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such calculation or in
relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities on behalf of the
Company.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest or formula for determining the rate
or rates of interest thereon, if any, the Maturity thereof and the redemption
provisions, if any, with respect thereto, are to be determined by the Company
upon the issuance of such Securities.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment," when used with respect to the Securities of or
within any series, means the place or places where the principal of, premium,
if any, and interest on such Securities are payable as specified or
contemplated by Sections 3.1 and 9.2.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.6 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"principal amount," when used with respect to any Security, means
the amount of principal, if any, payable in respect thereof at Maturity;
provided, however, that when used with respect to an Indexed Security in any
context other than the making of payments at Maturity, "principal amount"
means the principal face amount of such Indexed Security at original
issuance.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Register" shall have the meaning set forth in Section 3.5.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.
"Registrar" shall have the meaning set forth in Section 3.5.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of or within any series means the date
specified for that purpose as contemplated by Section 3.1.
"Responsible Officer," when used with respect to the Trustee, shall
mean the chairman or any vice-chairman of the board of directors, the
chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any senior
vice president, any vice president, any assistant vice president, the
secretary, the treasurer, any assistant treasurer, the cashier, any assistant
cashier, any senior trust officer, any trust officer, the controller, any
assistant controller, or any officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with a particular
subject.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Subsidiary of any Property, whether owned
at the date of this Indenture or thereafter acquired, which has been or is to
be sold or transferred by the Company or such Subsidiary to such Person or to
any other Person to whom funds have been or are to be advanced by such Person
on the security of such Property.
"Secured Debt" shall have the meaning set forth in Section 9.8(a).
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means a Security or
Securities of the Company issued, authenticated and delivered under this
Indenture.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security or in a coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" of any Person means any Person of which at least a
majority of capital stock having ordinary voting power for the election of
directors or other governing body of such Person is owned by such Person
directly or through one or more Subsidiaries of such Person.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
effect on the date of this Indenture, except as provided in Section 8.3.
"Trustee" means the party named as such in the first paragraph of
this Indenture until a successor Trustee replaces it pursuant to the
applicable provisions of this Indenture, and thereafter means such successor
Trustee and if, at any time, there is more than one Trustee, "Trustee" as
used with respect to the Securities of any series shall mean the Trustee with
respect to the Securities of that series.
"United States" means, unless otherwise specified with respect to
the Securities of any series as contemplated by Section 3.1, the United
States of America (including the States and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.
"U.S. Person" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.1, a citizen, national
or resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any
political subdivision thereof, or an estate or trust, the income of which is
subject to United States federal income taxation regardless of its source.
"Yield to Maturity" means the yield to maturity, calculated by the
Company at the time of issuance of a series of Securities or, if applicable,
at the most recent determination of interest on such series, in accordance
with accepted financial practice.
Section 1.2. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need
be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Sections 2.3 and 9.7) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not
such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. 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 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 as 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 1.4. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the 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 shall be
sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(b). The fact and date of the execution by any Person of any such
instrument or writing may be proved 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.
(c). The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed
by any trust company, bank, banker or other depository, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depository, or exhibited to it,
the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding
such Bearer Securities, if such certificate or affidavit is
deemed by the Trustee to be satisfactory. The Trustee and the Company
may assume that such ownership of any Bearer Security continues until
(i) another such certificate or affidavit bearing a later date issued in
respect of the same Bearer Security is produced, (ii) such Bearer
Security is produced to the Trustee by some other Person, (iii) such
Bearer Security is surrendered in exchange for a Registered Security
or (iv) such Bearer Security is no longer Outstanding. The
ownership of Bearer Securities may also be proved in any other
manner which the Trustee deems sufficient.
(d). The ownership of Registered Securities shall be proved by the
Register.
(e). Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in
lieu thereof in respect of anything done, omitted or
exchange suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action ish
made upon such Security.
(f) Until such time as written instruments shall have been
delivered with respect to the requisite percentage of principal amount of
Securities for the action contemplated by such instruments, any such
instrument executed and delivered by or on behalf of a Holder may be revoked
with respect to any or all of such Holder's Securities by written notice by
such Holder or any subsequent Holder, delivered in the manner in which such
instrument was delivered.
(g) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so. If such a record
date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date,
but only the Holders of record at the close of business on such record date
shall be deemed to be Holders for the purpose of determining whether Holders
of the requisite proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the Outstanding
Securities shall be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such record date shall
be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
Section 1.5. Notices, etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company, shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Trustee at First Union National Bank of North
Carolina, 230 South Tryon Street, 9th Floor, Charlotte, North
Carolina 28288-1179, Attention: Corporate Trust Administration,
or
(2) 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 at Public Service Company
of North Carolina, Incorporated, 400 Cox Road, P.O. Box 1398,
Gastonia, North Carolina 28053-1398, Attention: Chief Financial
Officer, or at any other address previously furnished in writing
to the Trustee by the Company.
Section 1.6. Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, (i) if any of the Securities
affected by such event are Registered Securities, such notice to the
Holders thereof shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to each such Holder affected by such event, at his address
as it appears in the Register, within the time prescribed for the
giving of such notice, and (ii) if any of the Securities affected by
such event are Bearer Securities, notice to the Holders thereof
shall be sufficiently given (unless otherwise herein or in the terms
of such Bearer Securities expressly provided) if published once in
an Authorized Newspaper in New York, New York, and in such other
city or cities, if any, as may be specified as contemplated by Section 3.1.
In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. In any case where
notice is given to Holders by publication, neither the failure to publish
such notice, nor any defect in any notice so published, shall affect the
sufficiency of such notice with respect to other Holders of Bearer Securities
or the sufficiency of any notice to Holders of Registered Securities given as
provided herein.
If by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice as provided
above, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder. If it is impossible or, in the opinion of the Trustee,
impracticable to give any notice by publication in the manner herein
required, then such publication in lieu thereof as shall be made with the
approval of the Trustee shall constitute a sufficient publication of such
notice.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
Section 1.7. 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 1.8. 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 1.9. Separability. In case any provision of this Indenture
or the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 1.10. Benefits of Indenture. Nothing in this Indenture or in
the Securities, expressed or implied, shall give to any Person, other
than the parties hereto and their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 1.11. Gocerning Law. THIS INDENTURE, THE SECURITIES AND ANY
COUPONS APPERTAINING THERETO SHALL, PURSUANT TO SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW, BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE
TO THE CHOICE OF LAW PROVISIONS THEREOF (OTHER THAN SUCH SECTION 5-
1401). This Indenture is subject to the Trust Indenture Act and if
any provision hereof limits, qualifies or conflicts with the Trust
Indenture Act, the Trust Indenture Act shall control.
Section 1.12. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or
Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture
or of any Security or coupon other than a provision in the
Securities of any series which specifically states that such
provision shall apply in lieu of this Section), payment of
principal, premium, if any, or interest need not be made at such
Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force
and effect as if made on such date; provided that if such payment is
timely made, no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date, Redemption
Date, sinking fund payment date, Stated Maturity or Maturity, as the
case may be, until such next succeeding Business Day.
ARTICLE
2.
SECURITY FORMS
Section 2.1
Forms Generally. The Securities of each series and the coupons,
if any, to be attached thereto shall be in substantially such form
as shall be established by or pursuant to a Board Resolution or in
one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently
herewith, be determined by the officers executing such Securities
and coupons, if any, as evidenced by their execution of the
Securities and coupons, if any. Unless otherwise provided as
contemplated in Section 3.1, Securities will be issued only in
registered, certificated form without coupons or in the form of one
or more global securities. If temporary Securities of any series
are issued as permitted by Section 3.4, the form thereof also shall
be established as provided in the preceding sentence. If the forms
of Securities and coupons, if any, of any series are established by,
or by action taken pursuant to, a Board Resolution, a copy of the
Board Resolution together with an appropriate record of any such
action taken pursuant thereto, including a copy of the approved form
of Securities or coupons, if any, shall be certified by the
Corporate Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.3 for the authentication and
delivery of such Securities.
Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
coupons, if any, as evidenced by their execution of such Securities and
coupons, if any.
Section 2.2
Form of Trustee's Certificate of Authentication. The Trustee's
certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series described in the within-
mentioned Indenture.
First Union National Bank of North Carolina,
as Trustee
By___________________________
Authorized Signatory
Section 2.3
Securities in Global Form. If Securities of or within a series
are issuable in whole or in part in global form, any such Security
may provide that it shall represent the aggregate or specified
amount of Outstanding Securities from time to time endorsed thereon
and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to
reflect exchanges. Any endorsement of a Security in global form to
reflect the amount, or any increase or decrease in the amount, or
changes in the rights of Holders, of Outstanding Securities
represented thereby, shall be made in such manner and by such Person
or Persons as shall be specified therein or in the Company Order to
be delivered to the Trustee pursuant to Section 3.3 or 3.4. Subject
to the provisions of Section 3.3 and, if applicable, Section 3.4,
the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person
or Persons specified therein or in the applicable Company Order.
Any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 1.2 hereof and need not be
accompanied by an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall apply to
any Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 1.2
and need not be accompanied by an Opinion of Counsel) with regard to the
reduction in the principal amount of Securities represented thereby, together
with the written statement contemplated by the last paragraph of Section 3.3.
Notwithstanding the provisions of Sections 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal of,
premium, if any, and interest on any Security in permanent global form shall
be made to the Person or Persons specified therein.
Section 2.4
Form of Legend for Securities in Global Form. Any Security in
global form authenticated and delivered hereunder shall bear a
legend in substantially the following form:
This Security is in global form within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depository or a
nominee of a Depository. Unless and until it is exchanged in whole or in
part for Securities in certificated form, this Security may not be
transferred except as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
ARTICLE
3.
THE SECURITIES
Section 3.1
Amount Unlimited; Issuable in Series. (a) The aggregate principal
amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued from time
to time in one or more series.
(b) The following matters shall be established with respect to each
series of Securities issued hereunder (i) by a Board Resolution,
(ii) by action taken pursuant to a Board Resolution and (subject
to Section 3.3) set forth, or determined in the manner provided,
in an Officer's Certificate or (iii) in one or more indentures
supplemental hereto:
(1) the title of the Securities of the series (which title shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (which limit shall not pertain to Securities
authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series
pursuant to Section 3.4, 3.5, 3.6, 8.6, or 10.7);
(3) the date or dates on which the principal of and premium, if
any, on the Securities of the series is payable or the method of
determination thereof;
(4) the rate or rates (which may be fixed, variable or zero) at
which the Securities of the series shall bear interest, if any,
or the method of calculating such rate or rates of interest;
(5) the date or dates from which interest, if any, shall accrue or
the method by which such date or dates shall be determined;
(6) the Interest Payment Dates on which any such interest shall be
payable and, with respect to Registered Securities, the Regular
Record Date, if any, for the interest payable on any Registered
Security on any Interest Payment Date;
(7) the place or places where the principal of, premium, if any,
and interest, if any, on Securities of the series shall be
payable;
(8) the period or periods within which, the price or prices at
which, the currency in which, and the other terms and conditions
upon which, Securities of the series may be redeemed, in whole or
in part, at the option of the Company and, if other than as
provided in Section 10.3, the manner in which the particular
Securities of such series (if less than all Securities of such
series are to be redeemed) are to be selected for redemption;
(9) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event
or at the option of a Holder thereof and the period or periods
within which, the price or prices at which, and the other terms
and conditions upon which, Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(10) if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and if other than the
denomination of $5,000, if Bearer Securities, the denominations
in which Securities of the series shall be issuable;
(11) if other than Dollars, the currency for which the
Securities of the series may be purchased or in which the
Securities of the series shall be denominated and/or the currency
in which the principal of, premium, if any, and interest, if any,
on the Securities of the series shall be payable and the
particular provisions applicable thereto in accordance with, in
addition to, or in lieu of the provisions of this Indenture;
(12) if the amount of payments of principal of, premium, if any,
and interest, if any, on the Securities of the series shall be
determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation,
on a currency or currencies (including currency unit or units)
other than that in which the Securities of the series are
denominated or designated to be payable), the index, formula or
other method by which such amounts shall be determined;
(13) if the amount of payments of principal, premium, if any,
and interest, if any, on the Securities of the series shall be
determined with reference to an index, formula or other method
based on the prices of securities or commodities, with reference
to changes in the prices of securities or commodities or
otherwise by application of a formula, the index, formula or
other method by which such amounts shall be determined;
(14) if other than the entire principal amount thereof, the
portion of the principal amount of such Securities of the series
which shall be payable upon declaration of acceleration thereof
pursuant to Section 5.2 or the method by which such portion shall
be determined;
(15) if other than as provided in Section 3.7, the Person to
whom any interest on any Registered Security of the series shall
be payable and the manner in which, or the Person to whom, any
interest on any Bearer Securities of the series shall be payable;
(16) provisions, if any, granting special rights to the Holders
of Securities of the series upon the occurrence of such events as
may be specified;
(17) any addition to or modification or deletion of any Events
of Default set forth in Section 5.1 or covenant of the Company
set forth in Article 9 pertaining to the Securities of the
series;
(18) under what circumstances, if any, the Company will pay
additional amounts on the Securities of that series held by a
Person who is not a U.S. Person in respect of taxes or similar
charges withheld or deducted and, if so, whether the Company will
have the option to redeem such Securities rather than pay such
additional amounts (and the terms of any such option);
(19) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without
interest coupons), or both, and any restrictions applicable to
the offering, sale or delivery of Bearer Securities and, if other
than as provided in Section 3.5, the terms upon which Bearer
Securities of a series may be exchanged for Registered Securities
of the same series and vice versa;
(20) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the date of
original issuance of the first Security of the series to be
issued;
(21) the forms of the Securities and coupons, if any, of the
series;
(22) the applicability, if any, to the Securities of or within
the series of Sections 4.4 and 4.5, or such other means of
defeasance or covenant defeasance as may be specified for the
Securities and coupons, if any, of such series;
(23) if other than the Trustee, the identity of the Registrar
and any Paying Agent;
(24) if the Securities of the series shall be issued in whole or
in part in global form, (i) the Depository for such global
Securities, (ii) whether beneficial owners of interests in any
Securities of the series in global form may exchange such
interests for certificated Securities of such series and of like
tenor of any authorized form and denomination and (iii) if other
than as provided in Section 3.5, the circumstances under which
any such exchange may occur; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture) including any
terms which may be required by or advisable under United States
laws or regulations or advisable in connection with the marketing
of Securities of the series.
(c) All Securities of any one series and coupons, if any,
appertaining to any Bearer Securities of such series shall be
substantially identical except, in the case of Registered
Securities, as to denomination and except as may otherwise be
provided (i) by a Board Resolution, (ii) by action taken pursuant
to a Board Resolution and (subject to Section 3.3) set forth, or
determined in the manner provided, in the related Officer's
Certificate or (iii) in an indenture supplemental hereto. All
Securities of any one series need not be issued at the same time
and, if permitted by the terms of a series as established pursuant
to Section 3.1(b), such series may be reopened, without the consent
of the Holders, for issuances of additional Securities of such
series.
(d) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy
of such Board Resolution shall be certified by the Corporate
Secretary or an Assistant Secretary of the Company and delivered to
the Trustee at or prior to the delivery of the Officer's
Certificate setting forth, or providing the manner for
determining, the terms of the Securities of such series, and an
appropriate record of any action taken pursuant thereto in
connection with the issuance of any Securities of such series
shall be delivered to the Trustee prior to the authentication and
delivery thereof.
Section 3.2
Denominations. Unless otherwise provided as contemplated by
Section 3.1, any Registered Securities of a series shall be issuable
in denominations of $1,000 and any integral multiple thereof.
Section 3.3
Execution, Authentication, Delivery and Dating. Securities shall
be executed on behalf of the Company by an Officer (other than the
Corporate Secretary or the Assistant Secretary) under the Company's
seal affixed thereto or reproduced thereon attested by the Corporate
Secretary or the Assistant Secretary. The signatures of any of
these Officers on the Securities may be manual or facsimile. The
coupons, if any, of Bearer Securities shall bear the facsimile
signature of two Officers.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper Officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time, the Company may deliver
Securities, together with any coupons appertaining thereto, of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver
such Securities; provided, however, that in the case of Securities offered in
a Periodic Offering, the Trustee shall authenticate and deliver such
Securities from time to time in accordance with such other procedures
(including, without limitation, the receipt by the Trustee of oral or
electronic instructions from the Company or its duly authorized agents,
promptly confirmed in writing) acceptable to the Trustee as may be specified
by or pursuant to a Company Order delivered to the Trustee prior to the time
of the first authentication of Securities of such series.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 2.1 and 3.1, in authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to section
315(a) through (d) of the Trust Indenture Act) shall be fully protected in
relying upon, an Opinion of Counsel, or a letter addressed to the Trustee
permitting it to rely upon on an Opinion of Counsel, substantially to the
effect that:
(1) if the forms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by
Section 2.1, that such forms have been established in conformity
with the provisions of this Indenture;
(2) if the terms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by
Section 3.1, that such terms have been, or in the case of
Securities of a series offered in a Periodic Offering, will be,
established in conformity with the provisions of this Indenture,
subject, in the case of Securities offered in a Periodic
Offering, to any conditions specified in such Opinion of Counsel;
(3) that such Securities together with any coupons appertaining
thereto, when authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar
laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity
principles; and
(4) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities have been complied with.
Notwithstanding that such form or terms have been so established,
the Trustee shall have the right to decline to authenticate such Securities
if, in the written opinion of counsel to the Trustee, the issue of such
Securities pursuant to this Indenture will adversely affect the Trustee's own
rights, duties or immunities under this Indenture or otherwise, in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the two
preceding paragraphs, if all of the Securities of any series are not to be
issued at one time, it shall not be necessary to deliver the Officer's
Certificate otherwise required pursuant to Section 3.1 or the Company Order
and Opinion of Counsel otherwise required pursuant to the two preceding
paragraphs in connection with the authentication of each Security of such
series if such documents, with appropriate modifications to cover such future
issuances, are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
With respect to Securities of a series offered in a Periodic
Offering, the Trustee may rely, as to the authorization by the Company of any
of such Securities, the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel and
the other documents delivered pursuant to Sections 2.1 and 3.1 and this
Section, as applicable, in connection with the first authentication of
Securities of such series, unless and until such Opinion of Counsel or other
documents have been suspended or revoked.
If the Company shall establish pursuant to Section 3.1 that the
Securities of a series are to be issued in whole or in part in global form,
then the Company shall execute and the Trustee shall, in accordance with this
Section and the Company Order with respect to such series, authenticate and
deliver one or more Securities in global form that (i) shall represent and
shall be denominated in an amount equal to the aggregate principal amount of
the Outstanding Securities of such series to be represented by such Security
or Securities in global form, (ii) shall be registered, if a Registered
Security, in the name of the Depository for such Security or Securities in
global form or the nominee of such Depository, (iii) shall be delivered by
the Trustee to such Depository or pursuant to such Depository's instruction
and (iv) shall bear the legend set forth in Section 2.4.
Each Depository designated pursuant to Section 3.1 for a Registered
Security in global form must, at the time of its designation and at all times
while it serves as Depository, be a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable statute or
regulation. The Trustee shall have no responsibility to determine if the
Depository is so registered. Each Depository shall enter into an agreement
with the Trustee governing the respective duties and rights of such
Depository and the Trustee with regard to Securities issued in global form.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date
specified as contemplated by Section 3.1.
No Security or coupon appertaining thereto shall be entitled to any
benefits under this Indenture or be valid or obligatory for any purpose until
authenticated by the manual signature of one of the authorized signatories of
the Trustee or an Authenticating Agent and no coupon shall be valid until the
Security to which it appertains has been so authenticated. Such signature
upon any Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered under this Indenture
and is entitled to the benefits of this Indenture. Except as permitted by
Section 3.6 or 3.7, the Trustee shall not authenticate and deliver any Bearer
Security unless all appurtenant coupons for interest then matured have been
detached and cancelled.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9 together with a written statement
(which need not comply with Section 1.2 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold
by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall not
be entitled to the benefits of this Indenture.
Section 3.4
Temporary Securities. Pending the preparation of definitive
Securities of any series, the Company may execute and, upon Company
Order, the Trustee shall authenticate and deliver temporary
Securities of such series which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor and form, with or without
coupons, of the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions,
substitutions and other variations as the Officers executing such
Securities may determine, as conclusively evidenced by their
execution of such Securities and coupons, if any. In the case of
Securities of any series, such temporary Securities may be in global
form, representing all or a portion of the Outstanding Securities of
such series.
Except in the case of temporary Securities in global form, each of
which shall be exchanged in accordance with the provisions thereof, if
temporary Securities of any series are issued, the Company will cause
definitive Securities of such series to be prepared without unreasonable
delay. After preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company pursuant to Section 9.2 in a
Place of Payment for such series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured coupons appertaining thereto), the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of the
same series of authorized denominations and of like tenor; provided, however,
that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided further that no definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security
unless the Trustee shall have received from the person entitled to receive
the definitive Bearer Security a certificate substantially in the form
approved in the Board Resolutions relating thereto and such delivery shall
occur only outside the United States. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series except
as otherwise specified as contemplated by Section 3.1.
Section 3.5
Registration, Transfer and Exchange. The Company shall cause to
be kept at the Corporate Trust Office of the Trustee or in any
office or agency to be maintained by the Company in accordance with
Section 9.2 in a Place of Payment a register (the "Register") in
which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Registered
Securities and the registration of transfers of Registered
Securities. The Register shall be in written form or any other form
capable of being converted into written form within a reasonable
time. The Trustee is hereby appointed "Registrar" for the purpose
of registering Registered Securities and transfers of Registered
Securities as herein provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency maintained pursuant to Section
9.2 in a Place of Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of the same
series, of any authorized denominations and of a like aggregate principal
amount containing identical terms and provisions.
Bearer Securities or any coupons appertaining thereto shall be
transferable by delivery.
At the option of the Holder, Registered Securities of any series
(except a Registered Security in global form) may be exchanged for other
Registered Securities of the same series, of any authorized denominations and
of a like aggregate principal amount containing identical terms and
provisions, upon surrender of the Registered Securities to be exchanged at
such office or agency. Whenever any Registered Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate
and deliver, the Registered Securities which the Holder making the exchange
is entitled to receive. Unless otherwise specified as contemplated by
Section 3.1, Bearer Securities may not be issued in exchange for Registered
Securities.
Unless otherwise specified as contemplated by Section 3.1, at the
option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series
are issuable in more than one denomination and such exchanges are permitted
by such series) of the same series, of any authorized denominations and of
like tenor and aggregate principal amount, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the
Holder of a Bearer Security is unable to produce any such unmatured coupon or
coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company and the Trustee in an amount equal to the face
amount of such missing coupon or coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to any Paying Agent any such missing coupon in
respect of which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; provided, however, that,
except as otherwise provided in Section 9.2, interest represented by coupons
shall be payable only upon presentation and surrender of those coupons at an
office or agency located outside the United States. Notwithstanding the
foregoing, in case any Bearer Security of any series is surrendered at any
such office or agency in exchange for a Registered Security of the same
series after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date of payment, as the case may be (or, if such coupon is so
surrendered with such Bearer Security, such coupon shall be returned to the
person so surrendering the Bearer Security), and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment
Date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon, when due in accordance with the
provisions of this Indenture.
Notwithstanding any other provision of this Section, unless and
until it is exchanged in whole or in part for Securities in definitive
certificated form, a Security in global form representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depository for such series to a nominee of such Depository or by a nominee of
such Depository to such Depository or another nominee of such Depository or
by such Depository or any such nominee to a successor Depository for such
series or a nominee of such successor Depository.
If at any time the Depository for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depository
for the Securities of such series or if at any time the Depository for the
Securities of such series shall no longer be eligible under Section 3.3, the
Company shall appoint a successor Depository with respect to the Securities
of such series. If a successor Depository for the Securities of such series
is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such ineligibility, the Company's election
pursuant to Section 3.1(b)(24) shall no longer be effective with respect to
the Securities of such series and the Company shall execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
certificated Securities of such series of like tenor, shall authenticate and
deliver, Securities of such series of like tenor in certificated form, in
authorized denominations and in an aggregate principal amount equal to the
principal amount of the Security or Securities of such series of like tenor
in global form in exchange for such Security or Securities in global form.
The Company may at any time in its sole discretion determine that
Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Company shall
execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of certificated Securities of such series of like
tenor, shall authenticate and deliver, Securities of such series of like
tenor in certificated form, in authorized denominations and in an aggregate
principal amount equal to the principal amount of the Security or Securities
of such series of like tenor in global form in exchange for such Security or
Securities in global form.
If specified by the Company pursuant to Section 3.1 with respect to
a series of Securities, the Depository for such series may surrender a
Security in global form of such series in exchange in whole or in part for
Securities of such series in certificated form on such terms as are
acceptable to the Company and such Depository. Thereupon, the Company shall
execute, and the Trustee shall authenticate and deliver, without service
charge,
(i) to each Person specified by such Depository a new
certificated Security or Securities of the same series of like
tenor, of any authorized denomination as requested by such Person
in aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Security in global form; and
(ii) to such Depository a new Security in global form of like
tenor in a denomination equal to the difference, if any, between
the principal amount of the surrendered Security in global form
and the aggregate principal amount of certificated Securities
delivered to Holders thereof.
Upon the exchange of a Security in global form for Securities in
certificated form, such Security in global form shall be cancelled by the
Trustee. Unless expressly provided with respect to the Securities of any
series that such Security may be exchanged for Bearer Securities, Securities
in certificated form issued in exchange for a Security in global form
pursuant to this Section shall be registered in such names and in such
authorized denominations as the Depository for such Security in global form,
pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such
Securities to the Persons in whose names such Securities are so registered.
Whenever any Securities are surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or upon any
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every Registered Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company, the
Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Registrar and
the Trustee 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
for any exchange of Securities, 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 or transfer or exchange of Securities,
other than exchanges pursuant to Section 3.4 or 10.7 not involving any
transfer.
The Company shall not be required (i) to issue, register the
transfer of, or exchange any Securities for a period beginning at the opening
of business 15 days before any selection for redemption of Securities of like
tenor and of the series of which such Security is a part and ending at the
close of business on the earliest date on which the relevant notice of
redemption is deemed to have been given to all Holders of Securities of like
tenor and of such series to be redeemed; (ii) to register the transfer of or
exchange any Registered Security so selected for redemption, in whole or in
part, except the unredeemed portion of any Security being redeemed in part;
or (iii) to exchange any Bearer Security so selected for redemption, except
that such a Bearer Security may be exchanged for a Registered Security of
that series and like tenor; provided that such Registered Security shall be
simultaneously surrendered for redemption.
Section 3.6
Replacement Securities. If a mutilated Security or a Security
with a mutilated coupon appertaining to it is surrendered to the
Trustee, together with, in proper cases, such security or indemnity
as may be required by the Company or the Trustee to save each of
them harmless, the Company shall execute and the Trustee shall
authenticate and deliver a replacement Registered Security, if such
surrendered Security was a Registered Security, or a replacement
Bearer Security with coupons corresponding to the coupons
appertaining to the surrendered Security, if such surrendered
Security was a Bearer Security, of the same series and date of
maturity, if the Trustee's requirements are met.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or Security with a destroyed, lost or stolen coupon 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 Security or coupon has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver in lieu of any such destroyed, lost or stolen
Security or in exchange for the Security to which a destroyed, lost or stolen
coupon appertains (with all appurtenant coupons not destroyed, lost or
stolen), a replacement Registered Security, if such Holder's claim appertains
to a Registered Security, or a replacement Bearer Security with coupons
corresponding to the coupons appertaining to the destroyed, lost or stolen
Bearer Security or the Bearer Security to which such lost, destroyed or
stolen coupon appertains, if such Holder's claim appertains to a Bearer
Security, of the same series and principal amount, containing identical terms
and provisions and bearing a number not contemporaneously outstanding with
coupons corresponding to the coupons, if any, appertaining to the destroyed,
lost or stolen Security.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new security or coupon, pay such
Security or coupon; provided, however, that payment of principal of and any
premium or interest on Bearer Securities shall, except as otherwise provided
in Section 9.2, be payable only at an office or agency located outside the
United States and, unless otherwise specified as contemplated by Section 3.1,
any interest on Bearer Securities shall be payable only upon presentation and
surrender of the coupons appertaining thereto.
Upon the issuance of any new Security 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 Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security,
or in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupon, if any, or the destroyed, lost or stolen coupon, shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of
that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
Section 3.7
Payment of Interest; Interest Rights Preserved. (a) Unless
otherwise provided as contemplated by Section 3.1, interest, if any,
on any Registered Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to
the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency maintained for
such purpose pursuant to 9.2; provided, however, that at the option
of the Company, interest on any series of Registered Securities that
bear interest may be paid (i) by check mailed to the address of the
Person entitled thereto as it shall appear on the Register of
Holders of Securities of such series or (ii) by wire transfer to an
account maintained by the Person entitled thereto as specified in
the Register of Holders of Securities of such series.
Unless otherwise provided as contemplated by Section 3.1, (i)
interest, if any, on Bearer securities shall be paid only against
presentation and surrender of the coupons for such interest installments as
are evidenced thereby as they mature and (ii) original issue discount, if
any, on Bearer Securities shall be paid only against presentation and
surrender of such Securities; in either case at the office of a Paying Agent
located outside the United States, unless the Company shall have otherwise
instructed the Trustee in writing, provided that any such instruction for
payment in the United States does not cause any Bearer Security to be treated
as a "registration-required obligation" under United States laws and
regulations. The interest, if any, on any temporary Bearer Security shall be
paid, as to any installment of interest evidenced by a coupon attached
thereto only upon presentation and surrender of such coupon and, as to other
installments of interest, only upon presentation of such Security for
notation thereon of the payment of such interest. If at the time a payment
of principal of or interest, if any, on a Bearer Security or coupon shall
become due, the payment of the full amount so payable at the office or
offices of all the Paying Agents outside the United States is illegal or
effectively precluded because of the imposition of exchange controls or other
similar restrictions on the payment of such amount in Dollars, then the
Company may instruct the Trustee in writing to make such payments at a Paying
Agent located in the United States, provided that provision for such payment
in the United States would not cause such Bearer Security to be treated as a
"registration-required obligation" under United States laws and regulations.
(b) Unless otherwise provided as contemplated by Section 3.1, any
interest on Registered Securities of any series which is payable,
but is not punctually paid or duly provided for, on any interest
payment date (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holders on the relevant Regular Record
Date by virtue of their having been such Holders, and such
Defaulted Interest may be paid by the Company, at its election in
each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of such Defaulted
Interest to the Persons in whose names such Registered Securities
(or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following
manner. The Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause (1) 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 such Registered Securities at his address as it appears
in the 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 such Registered Securities (or their respective
Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of such Defaulted Interest to
the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered at the close of
business on a specified date in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Registered Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment
pursuant to this clause (2), such manner of payment shall be
deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and Section
3.5, each Security delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 3.8
Persons Deemed Owners. Prior to due presentment of any Registered
Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in
whose name such Registered Security is registered as the owner of
such Registered Security for the purpose of receiving payment of
principal of, premium, if any, and (subject to Section 3.7) interest
on such Registered Security and for all other purposes whatsoever,
whether or not such Registered Security 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.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as
the absolute owner of such Bearer Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Security or coupon 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 or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Security in global form,
nothing herein shall prevent the Company or the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any Depository (or its nominee), as
a Holder, with respect to such Security in global form or impair, as between
such Depository and owners of beneficial interests in such Security in global
form, the operation of customary practices governing the exercise of the
rights of such Depository (or its nominee) as Holder of such Security in
global form.
Section 3.9
Cancellation. The Company at any time may deliver Securities and
coupons to the Trustee for cancellation. The Registrar and any
Paying Agent shall forward to the Trustee any Securities and coupons
surrendered to them for replacement, for registration of transfer,
or for exchange or payment. The Trustee shall cancel all Securities
and coupons surrendered for replacement, for registration of
transfer, or for exchange, payment, redemption or cancellation and
may, but shall not be required to, dispose of cancelled Securities
and coupons and issue a certificate of destruction to the Company.
The Company may not issue new Securities to replace Securities that
it has paid or delivered to the Trustee for cancellation.
Section 3.10
Computation of Interest. Except as otherwise specified as
contemplated by Section 3.1, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve
30-day months.
Section 3.11
CUSIP Numbers. The Company in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, in such case, the
Trustee shall use "CUSIP" numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state that
no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of
a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of
such numbers.
Section 3.12
Currency of Payment in Respect of Securities. Unless otherwise
specified with respect to any Securities pursuant to Section 3.1,
payment of the principal of, premium, if any, and interest, if any,
on any Registered or Bearer Security of such series will be made in
Dollars.
ARTICLE
4.
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1
Termination of Company's Obligations Under the Indenture. (a) This
Indenture shall upon a Company Request cease to be of further effect
with respect to Securities of or within any series and any coupons
appertaining thereto (except as to any surviving rights of
registration of transfer or exchange of such Securities and
replacement of such Securities which may have been lost, stolen or
mutilated as herein expressly provided for) and the Trustee, at the
expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with
respect to such Securities and any coupons appertaining thereto when
(1) either
(A) all such Securities previously authenticated and delivered
and all coupons appertaining thereto (other than (i) such coupons
appertaining to Bearer Securities surrendered in exchange for
Registered Securities and maturing after such exchange, surrender
of which is not required or has been waived as provided in
Section 3.5, (ii) such Securities and coupons which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.6, (iii) such coupons appertaining to
Bearer Securities called for redemption and maturing after the
relevant Redemption Date, surrender of which has been waived as
provided in Section 10.6 and (iv) such Securities and coupons 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 9.3) have been delivered to the Trustee for cancellation;
or
(B) all Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount in the currency in
which the Securities of such series are payable, sufficient to pay
and discharge the entire indebtedness on such Securities and such
coupons not theretofore delivered to the Trustee for cancellation,
for principal, premium, if any, and interest, with respect thereto,
to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligation of the Company to the Trustee and any predecessor Trustee
under Section 6.9, the obligations of the Company to any Authenticating Agent
under Section 6.14 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 4.2 and the last paragraph of Section 9.3 shall
survive.
Section 4.2
Application of Trust Funds. Subject to the provisions of the last
paragraph of Section 9.3, all money deposited with the Trustee
pursuant to Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons 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, premium, if any and any interest for whose payment
such money has been deposited with or received by the Trustee, but
such money need not be segregated from other funds except to the
extent required by law.
Section 4.3
Applicability of Defeasance Provisions; Company's Option to Effect
Defeasance or Covenant Defeasance. If pursuant to Section 3.1
provision is made for either or both of (i) defeasance of the
Securities of or within a series under Section 4.4 or (ii) covenant
defeasance of the Securities of or within a series under Section
4.5, then the provisions of such Section or Sections, as the case
may be, together with the provisions of Sections 4.6 through 4.9
inclusive, with such modifications thereto as may be specified
pursuant to Section 3.1 with respect to any Securities, shall be
applicable to such Securities and any coupons appertaining thereto,
and the Company may at its option by Board Resolution, at any time,
with respect to such Securities and any coupons appertaining
thereto, elect to have Section 4.4 (if applicable) or Section 4.5
(if applicable) be applied to such Outstanding Securities and any
coupons appertaining thereto upon compliance with the conditions set
forth below in this Article.
Section 4.4
Defeasance and Discharge. Upon the Company's exercise of the
option specified in Section 4.3 applicable to this Section with
respect to the Securities of or within a series, the Company shall
be deemed to have been discharged from its obligations with respect
to such Securities and any coupons appertaining thereto on the date
the conditions set forth in Section 4.6 are satisfied (hereinafter
"defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and any coupons
appertaining thereto which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 4.7 and the other
Sections of this Indenture referred to in clause (ii) of this
Section, and to have satisfied all its other obligations under such
Securities and any coupons appertaining thereto and this Indenture
insofar as such Securities and any coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Company, shall on
Company Order execute proper instruments acknowledging the same),
except the following which shall survive until otherwise terminated
or discharged hereunder: (i) the rights of Holders of such
Securities and any coupons appertaining thereto to receive, solely
from the trust funds described in Section 4.6(a) and as more fully
set forth in such Section, payments in respect of the principal of,
premium, if any, and interest, if any, on such Securities or any
coupons appertaining thereto when such payments are due; (ii) the
Company's obligations with respect to such Securities under Sections
3.5, 3.6, 9.2 and 9.3 and with respect to the payment of additional
amounts, if any, payable with respect to such Securities as
specified pursuant to Section 3.1(b)(18); (iii) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (iv) this
Article 4. Subject to compliance with this Article 4, the Company
may exercise its option under this Section notwithstanding the prior
exercise of its option under Section 4.5 with respect to such
Securities and any coupons appertaining thereto. Following a
defeasance, payment of such Securities may not be accelerated
because of an Event of Default.
Section 4.5
Covenant Defeasance. Upon the Company's exercise of the option
specified in Section 4.3 applicable to this Section with respect to
any Securities of or within a series, the Company shall be released
from its obligations under Sections 7.1, 9.4, 9.5, 9.8 and 9.9 and,
if specified pursuant to Section 3.1, its obligations under any
other covenant, with respect to such Securities and any coupons
appertaining thereto on and after the date the conditions set forth
in Section 4.6 are satisfied (hereinafter, "covenant defeasance"),
and such Securities and any coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with Sections 7.1, 9.4,
9.5, 9.8 and 9.9 or such other covenant, but shall continue to be
deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such
Securities and any coupons appertaining thereto, 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 Section or such
other covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other
covenant or by reason of reference in any such Section or such other
covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event
of Default under Section 5.1(3) or 5.1(7) or otherwise, as the case
may be, but, except as specified above, the remainder of this
Indenture and such Securities and any coupons appertaining thereto
shall be unaffected thereby.
Section 4.6
Conditions to Defeasance or Covenant Defeasance. The following
shall be the conditions to application of Section 4.4 or Section 4.5
to any Securities of or within a series and any coupons appertaining
thereto:
(a) (i) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee (or another trustee satisfying the
requirements of Section 6.12 who shall agree to comply with, and
shall be entitled to the benefits of, the provisions of Sections
4.3 through 4.9 inclusive and the last paragraph of Section 9.3
applicable to the Trustee, for purposes of such Sections also a
"Trustee") as trust funds in trust for the purpose of making the
payments referred to in clauses (x) and (y) of this Section
4.6(a), specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities and any
coupons appertaining thereto, with instructions to the Trustee as
to the application thereof, (A) money in an amount (in such
currency in which such Securities and any coupons appertaining
thereto are then specified as payable at Maturity), or (B) if
Securities of such series are not subject to repayment at the
option of Holders, Government Obligations which through the
payment of interest and principal in respect thereof in
accordance with their terms (and without any regard to
reinvestment thereof) will provide, not later than one day before
the due date of any payment referred to in clause (x) or (y) of
this Section 4.6(a), money in an amount or (C) a combination
thereof in an amount, sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the
Trustee to pay and discharge, (x) the principal of, premium, if
any, and interest, if any, on such Securities and any coupons
appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest and (y) any mandatory
sinking fund payments applicable to such Securities on the day on
which such payments are due and payable in accordance with the
terms of this Indenture and such Securities and any coupons
appertaining thereto. Before such a deposit the Company may make
arrangements satisfactory to the Trustee for the redemption of
Securities at a future date or dates in accordance with Article
10 which shall be given effect in applying the foregoing, in
which case, notwithstanding anything in Section 4.4 or Section
4.5 to the contrary, the provisions of such Article 10 shall
survive to the extent they apply to the redemption to be made on
such Redemption Date; and (ii) ninety-one or more days shall have
elapsed from the date of the deposit referred to in clause (i).
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a Default or Event of Default
under, this Indenture or result in a breach or violation of, or
constitute a default under, any other material agreement or
instrument to which the Company is a party or by which it is bound.
(c) In the case of an election under Section 4.4, the Company
shall have delivered to the Trustee an Officer's Certificate and an
Opinion of Counsel to the effect that (i) the Company has received
from, or there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of execution of this Indenture, there
has been a change in the applicable federal income tax law, in
either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of such Securities and any coupons
appertaining thereto will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to federal income tax on the same
amount, in the same manner and at the same times as would have been
the case if such deposit, defeasance and discharge had not occurred.
(d) In the case of an election under Section 4.5, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities and any coupons appertaining
thereto will not recognize income, gain or loss for federal income
tax purposes as a result of such covenant defeasance and will be
subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
covenant defeasance had not occurred.
(e) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the trust resulting from the deposit referred to in
subparagraph (a) does not constitute an investment company under the
Investment Company Act of 1940.
(f) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 4.4 or the covenant defeasance
under Section 4.5 (as the case may be) have been complied with.
(g) Such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith as
contemplated by Section 3.1.
If each of the conditions set forth above shall have been satisfied with
respect to any Securities of or within a series, but the ninety-one day
period referenced in subparagraph (a)(ii) shall not have elapsed, such
condition shall be deemed to be satisfied if the Company shall have delivered
to the Trustee an opinion of qualified nationally recognized bankruptcy
counsel acceptable to the Trustee to the effect that the use by the Trustee
of such monies in accordance with this Indenture would not constitute an
avoidable preference or be subject to the provisions of Section 544 and 547,
would not be recoverable under Section 550 and would not be subject to the
provisions of Section 362(a), in each case of Title 11, U.S. Code or similar
federal or state laws for the relief of debtors, if a Default relating to
Section 5.1(5) or (6) were to occur.
Section 4.7 Deposited Money and Government Obligations to Be Held
in Trust. Subject to the provisions of the last
paragraph of Section 9.3, all money and Government
Obligations (or other property as may be provided
pursuant to Section 3.1) (including the proceeds
thereof) deposited with the Trustee pursuant to Section
4.6 in respect of any Securities of any series and any
coupons appertaining thereto shall be held in trust and
applied by the Trustee, in accordance with the
provisions of such Securities and any coupons
appertaining thereto and this Indenture, to the
payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such
Securities and any coupons appertaining thereto of all
sums due and to become due thereon in respect of
principal, premium, if any, and interest, if any, but
such money need not be segregated from other funds
except to the extent required by law.
Section 4.8. Repayment to Company. The Trustee (and any Paying
Agent) shall promptly pay to the Company upon Company
Request any excess money or securities held by them at
any time.
Section 4.9 Indemnity for Government Obligations. The Company
shall pay, and shall indemnify the Trustee against, any
tax, fee or other charge imposed on or assessed against
Government Obligations deposited pursuant to this
Article or the principal and interest received on such
Government Obligations.
ARTICLE 5.
DEFAULTS AND REMEDIES
Section 5.1 Events of Default. An "Event of Default" occurs with
respect to the Securities of any series if:
(1) the Company defaults in the payment of interest on any
Security of that series or any coupon appertaining thereto
or any additional amount payable with respect to any
Security of that series as specified pursuant to Section
3.1(b)(18) when the same becomes due and payable and such
default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of or
any premium on any Security of that series when the same
becomes due and payable at its Maturity, or in the making of
a mandatory sinking fund payment when and as due by the
terms of the Securities of that series;
(3) the Company fails to comply in any material respect with
any of its agreements or covenants in, or any of the
provisions of, this Indenture or any supplemental indenture
or board resolution referred to therein with respect to any
Security of that series (other than an agreement, covenant
or provision for which non-compliance is elsewhere in this
Section specifically dealt with), and such non-compliance
continues for a period of 90 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 33 1/3% in principal amount of the Outstanding
Securities of the series, a written notice specifying such
default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
(4) an event of default as defined in any mortgage, indenture
or instrument under which there may be issued, or by which
there may be secured or evidenced, any indebtedness for
borrowed money of the Company (including this Indenture),
whether such indebtedness now exists or shall hereafter be
created, in a principal amount then outstanding of
$20,000,000 or more, shall happen, which default shall
constitute a failure to pay any portion of the principal of,
premium, if any, or interest on such indebtedness when due
and payable after the expiration of any applicable grace
period or shall result in such indebtedness becoming or
being declared due and payable prior to the date on which it
would otherwise become due and payable, and such
acceleration shall not be rescinded or annulled and such
indebtedness shall not be paid in full within a period of 30
days; provided, however, that 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 33 1/3% in aggregate principal amount of the
Outstanding Securities of that series a written notice
specifying such event of default and requiring the Company
to cause such acceleration to be rescinded or annulled or to
pay in full such indebtedness and stating that such notice
is a "Notice of Default" hereunder (it being understood,
however, that the Trustee shall not be deemed to have
knowledge of such default under such agreement or instrument
unless either (A) a Responsible Officer of the Trustee shall
have actual knowledge of such default or (B) a Responsible
Officer of the Trustee shall have received written notice
thereof from the Company, from any Holder, from the holder
of any such indebtedness or from the trustee under any such
agreement or other instrument); provided, further, that if,
prior to any declaration of acceleration by the Holders of
Securities or the Trustee under Section 5.2 hereof, such
default under such agreement or instrument is remedied or
cured by the Company or waived by the holders of such
indebtedness and any acceleration is rescinded or annulled,
then the Event of Default hereunder by reason thereof shall
be deemed likewise to have been thereupon remedied, cured or
waived without further action upon the part of either the
Trustee or any of such Holders;
(5) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case, (B) accepts
in writing any petition filed against it, or otherwise
consents to the entry of an order for relief against it, in
an involuntary case, (C) consents to the appointment of a
Custodian of, or the taking of possession by, it or for all
or a substantial part of its property; (D) makes a general
assignment for the benefit of its creditors; or (E) admits
in writing of its inability to pay its debts generally as
they become due.
(6) an involuntary case within the meaning of any Bankruptcy
Law is commenced against the Company in a court of competent
jurisdiction and continues undismissed for 60 days, or such
court enters an order or decree under any Bankruptcy Law
that (A) adjudges the Company a bankrupt or insolvent, or
approves a petition filed by one or more Persons other than
the Company seeking reorganization, arrangement, adjustment
or composition of the Company, (B) is for relief against the
Company in an involuntary case, (C) appoints a Custodian of
the Company or for a substantial part of its property, or
(D) orders the liquidation of the Company, and the order or
decree remains unstayed and in effect for 60 days; or
(7) any other Event of Default provided as contemplated by
Section 3.1 with respect to Securities of that series.
The term "Bankruptcy Law" means Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors, including any other law
relating to bankruptcy, insolvency, reorganization, dissolution, arrangement,
winding-up or readjustment of debts. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
Section 5.2 Acceleration; Rescission and Annulment. If an Event
of Default with respect to the Securities of any series
at the time Outstanding occurs and is continuing, the
Trustee or the Holders of at least 33 1/3% in aggregate
principal amount of all of the Outstanding Securities
of that series, by written notice to the Company (and,
if given by the Holders, to the Trustee), may declare
the principal (or, if the Securities of that series are
Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount as may
be specified in the terms of that series) of and
accrued interest, if any, on all the Securities of that
series to be due and payable and upon any such
declaration such principal (or, in the case of Original
Issue Discount Securities or Indexed Securities, such
specified amount) and interest, if any, shall be
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in aggregate principal
amount of the Outstanding Securities of that series, by written notice to the
Trustee, may rescind and annul such declaration and its consequences if all
existing Defaults and Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of that
series which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 5.7. No such rescission shall
affect any subsequent default or impair any right consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee. The Company covenants that if:
(1) default is made in the payment of any interest on any
Security or coupon, if any, when such interest becomes due
and payable and such default continues for a period of 30
days; or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities or coupons, if any, the whole amount then due
and payable on such Securities for principal, premium, if any, and interest
and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal, premium, if any, and on any
overdue interest, at the rate or rates prescribed therefor in such Securities
or coupons, if any, 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 Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to secure any other proper remedy.
Section 5.4 Trustee May File Proofs of Claim. The Trustee may
file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the
claims of the Trustee and the Holders of Securities
allowed in any judicial proceedings relating to the
Company, its creditors or its property.
Section 5.5 Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this
Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any
of the Securities or the production thereof in any
proceeding relating thereto.
Section 5.6 Delay or Omission Not Waiver. No delay or omission
by the Trustee or any Holder of any Securities to
exercise any right or remedy accruing upon an Event of
Default shall impair any such right or remedy or
constitute a waiver of or acquiescence in any such
Event of Default.
Section 5.7 Waiver of Past Defaults. The Holders of a majority
in aggregate principal amount of outstanding Securities
of any series by written notice to the Trustee may
waive on behalf of the Holders of all Securities of
such series a past Default or Event of Default with
respect to that series and its consequences except (i)
a Default or Event of Default in the payment of the
principal of, premium, if any, or interest on any
Security of such series or any coupon appertaining
thereto or (ii) in respect of a covenant or provision
hereof which pursuant to Section 8.2 cannot be amended
or modified without the consent of the Holder of each
Outstanding Security of such series adversely affected.
Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this
Indenture.
Section 5.8 Control by Majority. The Holders of a majority in
aggregate principal amount of the Outstanding
Securities of each series affected (with each such
series voting as a class) shall have the right to
direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it with
respect to Securities of that series; provided,
however, that (i) the Trustee may refuse to follow any
direction that conflicts with law or this Indenture,
(ii) the Trustee may refuse to follow any direction
that is unduly prejudicial to the rights of the Holders
of Securities of such series not consenting, or that
would in the good faith judgment of the Trustee have a
substantial likelihood of involving the Trustee in
personal liability and (iii) the Trustee may take any
other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 5.9 Limitation on Suits by Holders. No Holder of any
Security of any series or any coupons appertaining
thereto shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(1) the Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities of that series have made a
written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee against any loss,
liability or expense to be, or which may be, incurred by the
Trustee in pursuing the remedy;
(4) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute
any such proceedings; and
(5) during such 60 day period, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of
that series have not given to the Trustee a direction
inconsistent with such written request.
No one or more Holders shall have any right in any manner whatever by
virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or to obtain or
to seek to obtain priority or preference over any other of such Holders or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all of such Holders.
Section 5.10 Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, but subject to
Section 9.2, the right of any Holder of a Security or
coupon to receive payment of principal of, premium, if
any, and, subject to Sections 3.5 and 3.7, interest on
the Security, on or after the respective due dates
expressed in the Security (or, in case of redemption,
on the Redemption Dates), and the right of any Holder
of a coupon to receive payment of interest due as
provided in such coupon, or to bring suit for the
enforcement of any such payment on or after such
respective dates, shall not be impaired or affected
without the consent of such Holder.
Section 5.11 Application of Money Collected. If the Trustee
collects any money pursuant to this Article, it shall
pay out the money in the following order, at the date
or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal,
premium, if any, or interest, upon presentation of the
Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully
paid:
First: to the Trustee for amounts due under Section 6.9;
Second: to Holders of Securities and coupons in respect of which or
for the benefit of which such money has been collected for amounts due and
unpaid on such Securities for principal of, premium, if any, and interest,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal, premium, if any,
and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 5.11. At least 15 days before such record
date, the Trustee shall mail to each holder and the Company a notice that
states the record date, the payment date and the amount to be paid.
Section 5.12 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 5.13 Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the
last paragraph of Section 3.6, no right or remedy
herein conferred upon or reserved to the Trustee or 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.
ARTICLE 6.
THE TRUSTEE
Section 6.1 Certain Duties and Responsibilities of the Trustee.
(a) Except during the continuance of an Event of Default,
the Trustee's duties and responsibilities under this
Indenture shall be governed by Section 315(a) of the
Trust Indenture Act.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this
Indenture, and shall use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
Section 6.2 Rights of Trustee. Subject to the provisions of the
Trust Indenture Act:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any document believed by it to be
genuine and to have been signed or presented by the proper party
or parties. The Trustee need not investigate any fact or matter
stated in the document.
(b) Any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order
(other than delivery of any Security, together with any coupons
appertaining thereto, to the Trustee for authentication and
delivery pursuant to Section 3.3, which shall be sufficiently
evidenced as provided therein) and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution.
(c) Before the Trustee acts or refrains from acting, it may consult
with counsel or require an Officer's Certificate. The Trustee
shall not be liable for any action it takes or omits to take in
good faith in reliance on a Board Resolution, the written advice
of counsel acceptable to the Company and the Trustee, a
certificate of an Officer delivered pursuant to Section 1.2, an
Officer's Certificate or an Opinion of Counsel.
(d) The Trustee may act through agents or attorneys and shall not
be responsible for the misconduct or negligence of any agent or
attorney appointed with due care.
(e) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or
within its rights or powers.
(f) The Trustee shall not be required 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
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.
Section 6.3 Trustee May Hold Securities. The Trustee, any Paying
Agent, any Registrar or any other agent of the Company,
in its individual or any other capacity, may become the
owner or pledgee of Securities and coupons and, subject
to Sections 310(b) and 311 of the Trust Indenture Act,
may otherwise deal with the Company, an Affiliate or
Subsidiary with the same rights it would have if it
were not Trustee, Paying Agent, Registrar or such other
agent.
Section 6.4 Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee
shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed
upon in writing with the Company.
Section 6.5 Trustee's Disclaimer. The recitals contained herein
and in the Securities, except the Trustee's certificate
of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility
for their correctness. The Trustee makes no
representation as to the validity or adequacy of this
Indenture or the Securities or any coupon. The Trustee
shall not be accountable for the Company's use of the
proceeds from the Securities or for monies paid over to
the Company pursuant to the Indenture.
Section 6.6 Notice of Defaults. If a Default known to the
Trustee occurs and is continuing with respect to the
Securities of any series, the Trustee shall, within 90
days after it occurs, transmit by mail, in the manner
and to the extent provided in Section 313(c) of the
Trust Indenture Act, notice of all such Defaults unless
such Default shall have been cured or waived; provided,
however, that in the case of a Default in payment of
the principal of or interest on the Securities of any
series, the Trustee may withhold the notice if and so
long as the board of directors, the executive committee
or a committee of its Responsible Officers in good
faith determines that withholding such notice is in the
interests of Holders of Securities of that series; and
provided, further, that in the case of any Default of
the character specified in Section 5.1(3) with respect
to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the
occurrence thereof.
Section 6.7 Reports by Trustee to Holders. Within 60 days after
each May 15 of each year commencing with the first May
15 after the first issuance of Securities pursuant to
this Indenture, the Trustee shall transmit by mail to
all Holders of Securities as provided in Section 313(c)
of the Trust Indenture Act a brief report dated as of
such May 15 if required by and in compliance with
Section 313(a) of the Trust Indenture Act.
Section 6.8 Securityholder Lists. The Trustee shall preserve in
as current a form as is reasonably practicable the most
recent list available to it of the names and addresses
of Holders of Securities of each series. If the
Trustee is not the Registrar, the Company shall furnish
to the Trustee semiannually on or before the last day
of June and December in each year, and at such other
times as the Trustee may request in writing, a list, in
such form and as of such date as the Trustee may
reasonably require, containing all the information in
the possession or control of the Registrar, the Company
or any of its Paying Agents other than the Trustee as
to the names and addresses of Holders of Securities of
each such series. If there are Bearer Securities of
any series outstanding, even if the Trustee is the
Registrar, the Company shall furnish to the Trustee
such a list containing such information with respect to
Holders of such Bearer Securities only.
Section 6.9 Compensation and Indemnity. (a) The Company shall pay
to the Trustee such compensation as the Company and the
Trustee shall from time to time agree in writing for
all services rendered by it hereunder. The Trustee's
compensation shall not be limited by any law on
compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for
all reasonable out-of-pocket expenses incurred by it in
connection with the performance of its duties under
this Indenture, except any such expense as may be
attributable to its gross negligence or bad faith.
Such expenses shall include the reasonable compensation
and expenses of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee for, and hold it
harmless against, any loss or liability, damage, claim or
reasonable expense including taxes (other than taxes based upon
or determined or measured by the income of the Trustee) incurred
by it arising out of or in connection with its acceptance or
administration of the trust or trusts hereunder, including the
reasonable costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder. The Trustee shall
notify the Company promptly of any claim for which it may seek
indemnity. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any
settlement made without its consent.
(c) The Company need not reimburse any expense or indemnify against
any loss or liability incurred by the Trustee through gross
negligence or bad faith.
(d) To secure the payment obligations of the Company pursuant to
this Section, the Trustee shall have a lien prior to the
Securities of any series on all money or property held or
collected by the Trustee, except that held in trust to pay
principal, premium, if any, and interest on particular
Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1(5) or Section 5.1(6), the
expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency
or other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 6.10 Replacement of Trustee. (a) The resignation or removal
of the Trustee and the appointment of a successor
Trustee shall become effective only upon the successor
Trustee's acceptance of appointment as provided in
Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of any series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee
required by Section 6.11 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 Securities of such series.
(c) The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may remove the Trustee with
respect to that series by so notifying the Trustee and the
Company and may appoint a successor Trustee for such series with
the Company's consent.
(d) If at any time:
(1) the Trustee fails to comply with Section 310(b) of the
Trust Indenture Act after written request therefor by the
Company or by any Holder who has been a bona fide Holder of
a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
310(a) of the Trust Indenture Act and shall fail to resign
after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a
Security for at least six months; or
(3) the Trustee becomes incapable of acting, is adjudged a
bankrupt or an insolvent, or a receiver or public officer
takes charge of the Trustee or its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution
may remove the Trustee with respect to all Securities, or (ii) subject to
Section 315(e) of the Trust Indenture Act, any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities
and the appointment of a successor Trustee or Trustees.
(e) If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, with respect to Securities
of one or more series, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee with
respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect
to the Securities of any particular series) and shall comply with
the applicable requirements of Section 6.11. If, within one year
after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to
the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner
required by Section 6.11, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may,
on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
Section 6.11 Acceptance of Appointment by Successor. (a) In case of
the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee
shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting
such appointment. Thereupon, the resignation or
removal of the retiring Trustee shall become effective,
and the successor Trustee, without further act, deed or
conveyance, shall become vested with all the rights,
powers 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.
(b) in case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and such successor
Trustee shall execute and deliver an indenture supplemental
hereto wherein such successor Trustee shall accept such
appointment and which (i) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to vest
in, such successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates, (ii) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the
retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (iii) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such
Trustee and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in paragraph (a) or (b) of
this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified
and eligible under the Trust Indenture Act.
(e) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect
to the Securities of any series in the manner provided for
notices to the Holders of Securities in Section 1.6. Each notice
shall include the name of the successor Trustee with respect to
the Securities of such series and the address of its Corporate
Trust office.
Section 6.12 Eligibility Disqualification. There shall at all
times be a Trustee hereunder which shall be eligible to
act as Trustee under Section 310(a)(1) of the Trust
Indenture Act and shall have, at all times, a combined
capital and surplus of at least $75,000,000. If such
corporation publishes reports of condition at least
annually, pursuant to law or the requirements of
federal, state, territorial or District of Columbia
supervising or examining authority, then for the
purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most
recent report of condition so published. 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.
Section 6.13 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 Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such
authentication and deliver the Securities so
authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
Section 6.14 Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon
original issue, exchange, registration of transfer or
partial redemption thereof, and Securities so
authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder.
Any such appointment shall be evidenced by an
instrument in writing signed by a Responsible Officer
of the Trustee, a copy of which instrument shall be
promptly furnished to the Company. Wherever reference
is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the 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, except as may otherwise be provided pursuant to
Section 3.1, shall at all times be a bank or trust
company or corporation organized and doing business and
in good standing under the laws of the United States of
America or of any state or the District of Columbia,
authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not
less than $1,500,000 and subject to supervision or
examination by federal or state authorities. If such
Authenticating Agent publishes reports of condition at
least annually, pursuant to law or the requirements of
the aforesaid 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. In case 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
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination 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 for such series may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall give notice of such appointment to all Holders of Securities of the
series with respect to which such Authenticating Agent will serve in the
manner set forth in Section 1.6. 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 herein. No successor
Authenticating Agent shall be appointed unless eligible under the provisions
of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable
expenses for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series described in the within-mentioned
Indenture.
First Union National Bank of North Carolina,
as Trustee
By______________________________
as Authenticating Agent
By______________________________
Authorized Signatory
ARTICLE 7.
CONSOLIDATION, MERGER OR SALE BY THE COMPANY
Section 7.1 Consolidation, Merger or Sale of Assets Permitted.
The Company shall not consolidate or merge with or
into, or transfer or lease all or substantially all of
its assets to, any Person unless:
(1) the Person formed by or surviving any such consolidation
or merger (if other than the Company), or which acquires the
Company's assets, is organized and existing under the laws
of the United States, any state thereof or the District of
Columbia;
(2) the Person formed by or surviving any such consolidation
or merger (if other than the Company), or which acquires the
Company's assets, assumes by supplemental indenture all the
obligations of the Company under the Securities and this
Indenture; and
(3) immediately after giving effect to the transaction no
Default or Event of Default shall have occurred and be
continuing.
The Company shall deliver to the Trustee prior to the proposed
transaction an Officer's Certificate to the foregoing effect and an Opinion
of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture and that all conditions precedent to the
consummation of the transaction under this Indenture have been met.
ARTICLE 8.
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures 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
indentures supplemental hereto, in form reasonably
satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series
of Securities, stating that such covenants are expressly
being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default with respect to
all or any series of Securities; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate
the issuance of Bearer Securities (including, without
limitation, to provide that Bearer Securities may be
registrable as to principal only) or to facilitate the
issuance of Securities in global form; or
(5) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination
shall become effective only when there is no Security
Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
as permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any
of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the
requirements of Section 6.11; or
(9) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States
(including any of the states and the District of Columbia),
its territories, its possessions and other areas subject to
its jurisdiction of principal, premium, if any, or interest,
if any, on Bearer Securities or coupons, if any; or
(10) to correct or supplement any provision herein which may be
inconsistent with any other provision herein or to make any
other provisions with respect to matters or questions
arising under this Indenture, provided such action shall not
adversely affect the interests of any Holder of Securities
of any series or the Trustee; or
(11) to cure any ambiguity or correct any mistake, provided
such action shall not adversely affect the interests of any
Holder of Securities of any series or the Trustee.
Section 8.2 Supplemental Indentures With Consent of Holders.
With the written consent of the Holders of a majority
of the aggregate principal amount of the Outstanding
Securities adversely affected by such supplemental
indenture (with the Securities of all series voting as
one class), the Company and the Trustee may enter into
an indenture or indentures supplemental hereto to add
any provisions to or to change or eliminate any
provisions of this Indenture or of any other indenture
supplemental hereto or to modify the rights of the
Holders of such Securities; provided, however, that
without the consent of the Holder of each Outstanding
Security affected thereby, an amendment under this
Section may not:
(1) change the Stated Maturity of the principal of or premium,
if any, or any installment of principal of or premium, if
any, or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or change the
manner in which the amount of any principal thereof or
premium, if any, or interest thereon is determined, or
reduce the amount of the principal of any Original Issue
Discount Security or Indexed Security that would be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, or change the currency in
which any Securities or any premium or the interest thereon
is payable, change the index, securities or commodities with
reference to which or the formula by which the amount of
principal or any premium or the interest thereon is
determined, 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);
(2) reduce the percentage in principal amount of the
Outstanding Securities affected thereby, the consent of
whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for
any waiver (or compliance with certain provisions of this
Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture;
(3) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in
Section 9.2; or
(4) make any change in Section 5.7 or this 8.2 except to
increase any percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived
without the consent of the Holders of each Outstanding
Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities or such series with respect
to such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
It is not necessary under this Section 8.2 for the Holders to consent
to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
Section 8.3 Compliance with Trust Indenture Act. Every amendment
to this Indenture or the Securities of one or more
series shall be set forth in a supplemental indenture
that complies with the Trust Indenture Act as then in
effect.
Section 8.4 Execution of Supplemental Indentures. In executing,
or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the
modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Section 8.5 Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter
authenticated and delivered hereunder and of any coupon
appertaining thereto shall be bound thereby.
Section 8.6 Reference in Securities to Supplemental Indentures.
Securities, including any coupons, of any series
authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation
in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the
Company shall so determine, new Securities including
any coupons of any series so modified as to conform, in
the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities
including any coupons of such series.
ARTICLE 9.
COVENANTS
Section 9.1 Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly
and punctually pay the principal of, premium, if any,
and interest on the Securities of that series in
accordance with the terms of the Securities of such
series, any coupons appertaining thereto and this
Indenture. An installment of principal, premium, if
any, or interest shall be considered paid on the date
it is due if the Trustee or Paying Agent holds on that
date money designated for and sufficient to pay the
installment.
Section 9.2 Maintenance of Office or Agency. If Securities of a
series are issued as Registered Securities, the Company
will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of
that series may be presented or surrendered for
payment, where Securities of that series may be
surrendered for registration of transfer or exchange
and where notices and demands to or upon the Company in
respect of the Securities of that series and this
Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Company will
maintain, (i) subject to any laws or regulations
applicable thereto, an office or agency in a Place of
Payment for that series which is located outside the
United States where Securities of that series and
related coupons may be presented and surrendered for
payment; provided, however, that if the Securities of
that series are listed on any stock exchange located
outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent
for the Securities of that series in any other required
city located outside the United States, as the case may
be, so long as the Securities of that series are listed
on such exchange, and (ii) subject to any laws or
regulations applicable thereto, an office or agency in
a Place of Payment for that series which is located
outside the United States, where Securities of that
series may be surrendered for exchange and where
notices and demands to or upon the Company in respect
of the Securities of that series 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 any 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, and the
Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and
demands.
Unless otherwise specified as contemplated by Section 3.1, no payment
of principal, premium or interest on Bearer Securities shall be made at any
office or agency of the Company in the United States, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or coupon for payment, even if the payment would be credited to an
account located outside the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium or interest on any such Bearer Security shall be
made at the office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, if (but only if) payment in Dollars of the full amount
of such principal, premium or interest, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company
in accordance with this Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities (including any coupons, if any) of
one or more series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in each Place
of Payment for Securities (including any coupons, if any) of any series 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.
Unless otherwise specified as contemplated by Section 3.1, the Trustee
shall initially serve as Paying Agent.
Section 9.3 Money for Securities Payments to Be Held in Trust;
Unclaimed Money. If the Company shall at any time act
as its own Paying Agent with respect to any series of
Securities, it will, on or before each due date of the
principal of, premium, if any, or interest on any of
the Securities of that series, segregate and hold in
trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal, premium, if any,
or 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 in
writing of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of, premium, if any, or interest on Securities of that
series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the
making of any payment of principal, premium, if any, or
interest on the Securities; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which 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 any principal, premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium, if any, or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
and coupon, if any, shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense and at the direction of the Company cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day
and of general circulation in The City of New York, or cause to be mailed to
such Holder, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
Section 9.4 Corporate Existence. Subject to Article 7, the
Company will at all times do or cause to be done all
things necessary to preserve and keep in full force and
effect its corporate existence and its rights and
franchises; provided that nothing in this Section 9.4
shall prevent the abandonment or termination of any
right or franchise of the Company if, in the opinion of
the Company (evidenced by a Board Resolution), such
abandonment or termination is in the best interests of
the Company and not prejudicial in any material respect
to the Holders of the Securities.
Section 9.5 Insurance. The Company covenants and agrees that it
will maintain, and cause each of its Subsidiaries to
maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and
covering such risks as are consistent with sound
business practice for corporations engaged in the same
or similar business similarly situated against loss by
fire and the extended coverage perils. In lieu of the
foregoing or in combination therewith, in case of
itself or of any one or more of its Subsidiaries, the
Company will maintain or cause to be maintained a
system or systems of self-insurance which will accord
with the financially sound and approved practices of
companies owning or operating properties of a similar
character and maintaining such systems. The Trustee
shall not be required to see that such insurance is
effected or maintained.
Section 9.6 Reports by the Company. The Company covenants:
(a) to file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended; or, if the Company
is not required to file information, documents or reports
pursuant to either of such Sections, then to 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
Securities Exchange Act of 1934, as amended, 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;
(b) to file with the Trustee and the Commission, in accordance with
the rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture, as may be required from
time to time by such rules and regulations; and
(c) to transmit to all Holders of Securities, within 30 days after
the filing thereof with the Trustee, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act,
such summaries of any information, documents and reports required
to be filed by the Company pursuant to subsections (a) and (b) of
this Section 9.6, as may be required by the rules and regulations
prescribed from time to time by the Commission.
Section 9.7 Annual Review Certificate; Notice of Defaults or
Events of Default. (a) The Company covenants and agrees
to deliver to the Trustee, within 120 days after the
end of each Fiscal Year of the Company, a certificate
from the principal executive officer, principal
financial officer or principal accounting officer as to
his or her knowledge of the Company's compliance with
all conditions and covenants under this Indenture. For
purposes of this Section 9.7, such compliance shall be
determined without regard to any period of grace or
requirement of notice provided under this Indenture.
(b) The Company covenants and agrees to deliver to the Trustee,
within a reasonable time after the Company becomes aware of the
occurrence of a Default or an Event of Default of the character
specified in (i) Section 5.1(4) hereof, or (ii) 5.1(3) hereof,
but only as it relates to a Default or Event of Default in the
observance of Sections 9.08 or 9.09 hereof) written notice of the
occurrence of such Default or Event of Default.
Section 9.8 Limitation on Liens. (a) If the Company or any of its
Subsidiaries shall incur, assume or guarantee any
indebtedness for borrowed money secured by a Lien (any
such indebtedness being herein referred to as "Secured
Debt") on any Property or assets of the Company or any
of its Subsidiaries, the Company shall secure, or cause
such Subsidiary to secure, the Securities equally and
ratably with (or, at the option of the Company, prior
to) such Secured Debt, unless after giving effect
thereto the sum, without duplication, of (i) the
aggregate principal amount of all such Secured Debt,
and (ii) all Attributable Debt in respect of Sale and
Leaseback Transactions (other than Sale and Leaseback
Transactions as to which the Company would be entitled
to incur Secured Debt, in an amount at least equal to
the Attributable Debt in respect of such Sale and
Leaseback Transaction, on the Property to be leased,
without equally and ratably securing the Securities,
pursuant to the exclusions from the computation of
Secured Debt contained below in subclauses (i)-(vii) of
Section 9.8(b) and other than Sale and Leaseback
Transactions the proceeds of which have been applied in
accordance with clause (b) of Section 9.9), would not
exceed 15% of the Consolidated Net Tangible Assets of
the Company.
(b) The restriction of Section 9.8(a) will not apply to, and there
shall be excluded in computing the aggregate amount of Secured
Debt for the purpose of such restriction, indebtedness secured
by:
(i) (A) Liens existing as of the date of this
Indenture or (B) Liens relating to a contract that
was entered into by the Company or any Subsidiary
prior to the date of this Indenture, provided that
in no case shall the liens excluded pursuant to
this clause (i) include the lien of the Indenture
dated as of January 1, 1952 between the Company
and the Marine Midland Trust Company of New York,
as trustee, as supplemented and amended;
(ii) Liens on any Property existing at the time of
acquisition thereof (whether such acquisition is
direct or by acquisition of stock, assets or
otherwise) by the Company or any of its
Subsidiaries, provided that no such Lien extends
or shall extend to or cover any Property other
than the Property being acquired and fixed
improvements then or thereafter erected thereon;
(iii) Liens upon or with respect to any Property
(including any contract rights relating thereto)
acquired, constructed, refurbished or improved by
the Company or any of its Subsidiaries (including,
but not limited to, Liens to secure all or any
part of the cost of construction, alteration or
repair of any building, equipment, facility or
other improvement on, all or any part of such
property, including any pipeline financing) after
the date of this Indenture which are created,
incurred or assumed contemporaneously with, or
within 360 days after, the latest to occur of the
acquisition (whether by acquisition of stock,
assets or otherwise), completion of construction,
refurbishment or improvement, or the commencement
of commercial operation, of such Property (or, in
the case of Liens on contract rights, the
completion of construction or the commencement of
commercial operation of the facility to which such
contract rights relate, regardless of the date
when such contract was entered into) to secure or
provide for the payment of any part of the
purchase price of such Property or the cost of
such construction, refurbishment or improvement;
provided, however, that in the case of any such
acquisition, construction, refurbishment or
improvement, the Lien shall relate only to
indebtedness reasonably incurred to finance such
acquisition, construction, refurbishment or
improvement, and shall not extend to or cover any
other Property other than fixed improvements then
or thereafter existing thereon;
(iv) Liens securing indebtedness owing by any
Subsidiary to the Company or to any other
Subsidiary;
(v) Liens in connection with the sale or other
transfer in the ordinary course of business of (A)
crude oil, natural gas, other petroleum
hydrocarbons or other minerals in place for a
period of time until, or in an amount such that,
the purchaser or other transferee will realize
therefrom a specified amount of money (however
determined) or a specified amount of such
minerals, or (B) any other interest in property of
the character commonly referred to as a
"production payment";
(vi) Liens on current assets to secure any
indebtedness maturing (including any extensions or
renewals thereof) not more than one year from the
date of the creation of such Lien; and
(vii) Liens for the sole purpose of extending,
renewing or replacing in whole or in part the
indebtedness secured thereby referred to in the
foregoing subclauses (i) to (vi), inclusive, or in
this clause (vii); provided, however, that the
Liens excluded pursuant to this clause (vii) shall
be excluded only in an amount not to exceed the
principal amount of indebtedness so secured at the
time of such extension, renewal or replacement,
and that such extension, renewal or replacement
shall be limited to all or part of the Property
subject to the lien so extended, renewed or
replaced (plus refurbishment of or improvements on
or to such Property).
Section 9.9 Limitation on Sale and Leaseback Transactions.
Neither the Company nor any of its Subsidiaries may
enter into, assume, guarantee or otherwise become
liable with respect to any Sale and Leaseback
Transaction involving any Property, if the latest to
occur of the acquisition, the completion of
construction or the commencement of commercial
operation of such Property shall have occurred more
than 180 days prior thereto, unless (a) the Company or
such Subsidiary could create Secured Debt secured by
such Property under the restrictions described in
Section 9.8 in an amount equal to the Attributable Debt
with respect to the Sale and Leaseback Transaction
without equally and ratably securing the Securities or
(b) the Company or such Subsidiary, within 180 days
from the effective date of such Sale and Leaseback
Transaction, applies an amount not less than the
greater of (i) the net proceeds of the sale of such
Property leased pursuant to such arrangement or (ii)
the fair value, in the opinion of the Board of
Directors, of such Property (as of the time of entering
into such Sale and Leaseback Transaction) to (x) the
retirement of its Funded Debt, including, for this
purpose, any currently maturing portion of such Funded
Debt, or (y) the purchase of other property having a
fair value (as of the time of such purchase), in the
opinion of the Board of Directors, at least equal to
the fair value, in the opinion of the Board of
Directors, of the Property leased in such Sale and
Leaseback Transaction (as of the time of entering into
such Sale and Leaseback Transaction). This restriction
will not apply to any Sale and Leaseback Transaction
(1) between the Company and any Subsidiary or between
any Subsidiaries, (2) entered into prior to the date of
this Indenture or (3) for which, at the time the
transaction is entered into, the term of the related
lease to the Company or such Subsidiary of the Property
sold pursuant to such transaction is three years or
less.
Section 9.10 Books of Record and Account; Compliance with Law.
(a) The Company will keep, and will cause each Subsidiary
to keep, proper books of record and account, either on
a consolidated or individual basis. The Company shall
cause its books of record and account to be examined by
one or more firms of independent public accountants not
less frequently than annually. The Company shall
prepare its financial statements in accordance with
GAAP.
(b) The Company shall, and shall cause each of its Subsidiaries
to, comply with all statutes, laws, ordinances, or government
rules and regulations to which it is subject, non-compliance with
which would materially adversely affect the business, prospects,
earnings, properties, assets or condition, financial or
otherwise, of the Company and its Subsidiaries taken as a whole.
Section 9.11 Taxes. The Company shall, and shall cause each of
its Subsidiaries to, pay or discharge or cause to be
paid or discharged prior to delinquency all taxes,
assessments and governmental levies the non-payment of
which could materially adversely affect the business,
prospects, earnings, properties, assets or condition,
financial or otherwise, of the Company and its
Subsidiaries taken as a whole except those taxes,
assessments and governmental levies whose amount,
applicability or validity is being contested in good
faith and by appropriate proceedings.
ARTICLE 10.
REDEMPTION
Section 10.1 Applicability of Article. Securities (including
coupons, if any) of any series which are redeemable
before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise
specified as contemplated by Section 3.1 for Securities
of any series) in accordance with this Article.
Section 10.2 Election to Redeem; Notice to Trustee. The election
of the Company to redeem any Securities, including
coupons, if any, shall be evidenced by or pursuant to a
Board Resolution. In the case of any redemption at the
election of the Company of less than all the Securities
or coupons, if any, of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by
the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of
such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities
(i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or
elsewhere in this Indenture or (ii) pursuant to an
election of the Company which is subject to a condition
specified in the terms of such Securities, the Company
shall furnish the Trustee with an Officer's Certificate
evidencing compliance with such restriction or
condition.
Section 10.3 Selection of Securities to Be Redeemed. Unless
otherwise specified as contemplated by Section 3.1, if
less than all the Securities (including coupons, if
any) of a series with the same terms are to be
redeemed, the Trustee, not more than 45 days prior to
the redemption date, shall select the Securities of the
series to be redeemed pro rata or by lot or by any
other method utilized by the Trustee. The Trustee
shall make the selection from Securities of the series
that are Outstanding and that have not previously been
called for redemption and may provide for the selection
for redemption of portions (equal to the minimum
authorized denomination for Securities, including
coupons, if any, of that series or any integral
multiple thereof) of the principal amount of
Securities, including coupons, if any, of such series
of a denomination larger than the minimum authorized
denomination for Securities of that series. The
Trustee shall promptly notify the Company in writing of
the Securities selected by the Trustee for redemption
and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be
redeemed.
For purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities (including coupons,
if any) shall relate, in the case of any Securities (including coupons, if
any) redeemed or to be redeemed only in part, to the portion of the principal
amount of such Securities (including coupons, if any) which has been or is to
be redeemed.
Section 10.4 Notice of Redemption. Unless otherwise specified as
contemplated by Section 3.1, notice of redemption shall
be given in the manner provided in Section 1.6 not less
than 30 days nor more than 60 days prior to the
Redemption Date to the Holders of the Securities to be
redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of a series
are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular
Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall state that
on and after the Redemption Date, upon surrender of such
Security, the holder will receive, without a charge, a new
Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed;
(5) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption
Date, are to be surrendered for payment for the Redemption
Price;
(6) that Securities of the series called for redemption and
all unmatured coupons, if any, appertaining thereto must be
surrendered to the Paying Agent to collect the Redemption
Price;
(7) that, on the Redemption Date, the Redemption Price will
become due and payable upon each such Security, or the
portion thereof, to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said
date;
(8) that the redemption is for a sinking fund, if such is
the case;
(9) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption
must be accompanied by all coupons maturing subsequent to
the Redemption Date or the amount of any such missing coupon
or coupons will be deducted from the Redemption Price,
unless security or indemnity satisfactory to the Company,
the Trustee and any Paying Agent is furnished; and
(10) the CUSIP number, if any, of the Securities.
Notice of redemption of Securities to be redeemed shall be given by
the Company or, at the Company's request, by the Trustee in the name and at
the expense of the Company.
Section 10.5 Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, which it may not do in
the case of a sinking fund payment under Article 11,
segregate and hold in trust as provided in Section 9.3)
an amount of money in the currency in which the
Securities of such series are payable (except as
otherwise specified pursuant to Section 3.1 for the
Securities of such series) sufficient to pay on the
Redemption Date the Redemption Price of, and (unless
the Redemption Date shall be an Interest Payment Date)
interest accrued to the Redemption Date on, all
Securities or portions thereof which are to be redeemed
on that date.
Unless any Security by its terms prohibits any sinking fund payment
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
Section 10.6 Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless
the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities
shall cease to bear interest and the coupons for any
such interest appertaining to any Bearer Security so to
be redeemed, except to the extent provided below, shall
be void. Except as provided in the next succeeding
paragraph, upon surrender of any such Security,
including coupons, if any, for redemption in accordance
with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however,
that installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption
Date shall be payable only at an office or agency
located outside the United States and its possessions
(except as otherwise provided in Section 9.2) and,
unless otherwise specified as contemplated by Section
3.1, only upon presentation and surrender of coupons
for such interest; and provided, further, that, unless
otherwise specified as contemplated by Section 3.1,
installments of interest on Registered Securities whose
Stated Maturity is on or prior to the Redemption Date
shall be payable to the Holders of such Securities, or
one or more Predecessor Securities, registered as such
at the close of business on the relevant Record Dates
according to their terms and the provisions of Section
3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date,
such Bearer Security may be paid after deducting from the Redemption Price an
amount equal to the face amount of all such missing coupons, or the surrender
of such missing coupon or coupons may be waived by the Company and the
Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Bearer Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall
have been made from the Redemption Price, such Holder shall be entitled to
receive the amount so deducted; provided, however, that interest represented
by coupons shall be payable only at an office or agency located outside of
the United States (except as otherwise provided pursuant to Section 9.2) and,
unless otherwise specified as contemplated by Section 3.1, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 10.7 Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part at any Place of
Payment therefor (with, if the Company or the Trustee
so required, 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),
the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of that
Security, without service charge, a new Security or
securities of the same series, having the same form,
terms and Stated Maturity, in any authorized
denomination equal in aggregate principal amount to the
unredeemed portion of the principal amount of the
Security surrendered.
ARTICLE 11.
SINKING FUNDS
Section 11.1 Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the
retirement of Securities of a series except as
otherwise specified as contemplated by Section 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 11.2. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 11.2 Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding
Securities of a series (other than any previously
called for redemption) together, in the case of Bearer
Securities of such series, with all unmatured coupons
appertaining thereto and (ii) may apply as a credit
Securities of a series which have been redeemed either
at the election of the Company pursuant to the terms of
such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or
any part of any sinking fund payment with respect to
the Securities of such series required to be made
pursuant to the terms of such Securities as provided
for by the terms of such series; provided that such
Securities have not been previously so credited. Such
Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through
operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
Section 11.3 Redemption of Securities for Sinking Fund. Not less
than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver
to the Trustee an Officer's Certificate specifying the
amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which
is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 11.2 and
will also deliver to the Trustee any Securities to be
so delivered. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 10.3
and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the
manner provided in Section 10.4. Such notice having
been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated
in Sections 10.6 and 10.7. This Indenture may be
executed in any number of counterparts, each of which
shall be an original, but such counterparts shall
together constitute but one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
PUBLIC SERVICE COMPANY OF NORTH
CAROLINA, INCORPORATED
By:/s/ Charles E. Zeigler, Jr.
Title: Chairman, President and Chief Executive
Officer
[Seal]
Attest:
/s/ J. Paul Douglas
Secretary
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, as Trustee
By: /s/ Karen Atkinson
Title:
[Seal]
Attest:
_____________________
Title:
Reconciliation and tie between Indenture, dated as of January 1, 1996 and the
Trust Indenture Act of 1939, as amended.
Trust Indenture Act
of 1939 Section
Indenture
Section
310(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.12
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.12
(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TIA
(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Not Applicable
(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TIA
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.10; TIA
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TIA
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TIA
Not Applicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.8
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TIA
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TIA
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.7; TIA
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TIA
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TIA
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TIA
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.6; 9.7; TIA
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Not Applicable
(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.2
(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.2
(c)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.2; TIA
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TIA
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.6
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.1
(d)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TIA
(d)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TIA
(d)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TIA
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TIA
316(a)(last sentence). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.1
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.2; 5.8
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.7
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.9; 5.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TIA
317(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.3
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.3
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TIA
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.11; TIA
_____________________________
This reconciliation and tie section does not constitute part
of the Indenture.
PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED
and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA, as Trustee
INDENTURE
Dated as of January 1, 1996
Providing for Issuance of
Debt Securities in Series
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
1.1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . 9
1.3. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . 9
1.4. Acts of Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.5. Notices, etc., to Trustee and Company. . . . . . . . . . . . . . . . . 11
1.6. Notice to Holders; Waiver. . . . . . . . . . . . . . . . . . . . . . . 12
1.7. Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . 12
1.8. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . 12
1.9. Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.10. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . 13
1.11. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.12. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 2
SECURITY FORMS
2.1. Forms Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.2. Form of Trustee's Certificate of Authentication. . . . . . . . . . . . 14
2.3. Securities in Global Form. . . . . . . . . . . . . . . . . . . . . . . 14
2.4. Form of Legend for Securities in Global Form . . . . . . . . . . . . . 15
ARTICLE 3
THE SECURITIES
3.1. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . 15
3.2. Denominations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.3. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . 18
3.4. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.5. Registration, Transfer and Exchange. . . . . . . . . . . . . . . . . . 21
3.6. Replacement Securities . . . . . . . . . . . . . . . . . . . . . . . . 25
3.7. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . 26
3.8. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . . . . . . 27
3.9. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.10. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . 28
3.11. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.12. Currency of Payment in Respect of Securities. . . . . . . . . . . . . 28
ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
4.1. Termination of Company's Obligations Under
the Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
4.2. Application of Trust Funds . . . . . . . . . . . . . . . . . . . . . . 30
4.3. Applicability of Defeasance Provisions;
Company's Option to Effect Defeasance or
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.4. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . 30
4.5. Covenant Defeasance. . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.6. Conditions to Defeasance or Covenant Defeasance. . . . . . . . . . . . 31
4.7. Deposited Money and Government Obligations to Be Held in Trust . . . . 33
4.8. Repayment to Company . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.9. Indemnity for Government Obligations . . . . . . . . . . . . . . . . . 33
ARTICLE 5
DEFAULTS AND REMEDIES
5.1. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . 34
5.2. Acceleration; Rescission and Annulment . . . . . . . . . . . . . . . . 35
5.3. Collection of Indebtedness and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5.4. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . 36
5.5. Trustee May Enforce Claims Without Possession
of Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5.6. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . 36
5.7. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . . . . . 37
5.8. Control by Majority. . . . . . . . . . . . . . . . . . . . . . . . . . 37
5.9. Limitation on Suits by Holders . . . . . . . . . . . . . . . . . . . . 37
5.10. Rights of Holders to Receive Payment. . . . . . . . . . . . . . . . . 38
5.11. Application of Money Collected. . . . . . . . . . . . . . . . . . . . 38
5.12. Restoration of Rights and Remedies. . . . . . . . . . . . . . . . . . 38
5.13. Rights and Remedies Cumulative. . . . . . . . . . . . . . . . . . . . 38
ARTICLE 6
THE TRUSTEE
6.1. Certain Duties and Responsibilities of the Trustee . . . . . . . . . . 39
6.2. Rights of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . 39
6.3. Trustee May Hold Securities. . . . . . . . . . . . . . . . . . . . . . 40
6.4. Money Held in Trust. . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.5. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.6. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.7. Reports by Trustee to Holders. . . . . . . . . . . . . . . . . . . . . 40
6.8. Securityholder Lists . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.9. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . 41
6.10. Replacement of Trustee. . . . . . . . . . . . . . . . . . . . . . . . 41
6.11. Acceptance of Appointment by Successor. . . . . . . . . . . . . . . . 43
6.12. Eligibility Disqualification. . . . . . . . . . . . . . . . . . . . . 44
6.13. Merger, Conversion, Consolidation or Succession to Business . . . . . 44
6.14. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . 44
ARTICLE 7
CONSOLIDATION, MERGER OR SALE BY THE COMPANY
7.1. Consolidation, Merger or Sale of Assets Permitted. . . . . . . . . . . 46
ARTICLE 8
SUPPLEMENTAL INDENTURES
8.1. Supplemental Indentures Without Consent of Holders . . . . . . . . . . 46
8.2. Supplemental Indentures With Consent of Holders. . . . . . . . . . . . 48
8.3. Compliance with Trust Indenture Act. . . . . . . . . . . . . . . . . . 49
8.4. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . 49
8.5. Effect of Supplemental Indentures. . . . . . . . . . . . . . . . . . . 49
8.6. Reference in Securities to Supplemental Indentures . . . . . . . . . . 49
ARTICLE 9
COVENANTS
9.1. Payment of Principal, Premium, if any, and Interest. . . . . . . . . . 49
9.2. Maintenance of Office or Agency. . . . . . . . . . . . . . . . . . . . 49
9.3. Money for Securities Payments to Be Held in Trust;
Unclaimed Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.4. Corporate Existence. . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.5. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.6. Reports by the Company . . . . . . . . . . . . . . . . . . . . . . . . 52
9.7. Annual Review Certificate; Notice of Defaults or
Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.8. Limitation on Liens. . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.9. Limitation on Sale and Leaseback Transactions. . . . . . . . . . . . . 54
9.10. Books of Record and Account; Compliance with Law. . . . . . . . . . . 55
9.11. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE 10
REDEMPTION
10.1. Applicability of Article. . . . . . . . . . . . . . . . . . . . . . . 56
10.2. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . 56
10.3. Selection of Securities to Be Redeemed. . . . . . . . . . . . . . . . 56
10.4. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . . . . 56
10.5. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . 57
10.6. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . 58
10.7. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE 11
SINKING FUNDS
11.1. Applicability of Article. . . . . . . . . . . . . . . . . . . . . . . 59
11.2. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . 59
11.3. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . 59