1
Exhibit 4.1
PIEDMONT NATURAL GAS COMPANY, INC.
and
CITIBANK, N.A., Trustee
____________
INDENTURE
Dated as of April 1, 1993
____________
Debt Securities
2
CROSS-REFERENCE SHEET*
between
Provisions of Sections 310 through 318 of the Trust Indenture Act of 1939, as
amended, and the within Indenture between Piedmont Natural Gas Company, Inc.
and Citibank, N.A., as Trustee:
_______________
SECTION OF ACT SECTION OF INDENTURE
310(a)(1) and (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.09
310(a)(3) and (4) . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
310(b) (except for (iii)) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08
310(b)(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10(b)(3)
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.13(a)
311(a) last paragraph . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.13(c)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.13(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.01 and 5.02(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.02(b)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.02(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04(a)
313(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
313(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04(c)
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04(d)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03 and 4.04
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
314(c)(1) and (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.04
314(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.04
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
315(a), (c) and (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.14
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.14
316(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.12
316(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Omitted
316(a) last sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.05
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.02
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.03 and 6.04
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.03(a)
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.06
________________________________
* This Cross-Reference Sheet is not part of the Indenture.
3
TABLE OF CONTENTS*
PAGE
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . 2
Book-Entry Debt Security . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company Request, Company Order
and Company Consent . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Officer . . . . . . . . . . . . . . . . . . . . . 3
Debt Security Register . . . . . . . . . . . . . . . . . . . . . 3
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . 4
Original Issue Discount Debt Securities . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . 6
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE TWO
ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF DEBT SECURITIES
SECTION 2.01. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . 6
SECTION 2.02. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . . . . . . 9
__________________________
* The Table of Contents is not part of the Indenture.
3
4
PAGE
SECTION 2.03 Form of Legend for Book-Entry
Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.04. Form and Delivery of Debt Securities . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.05. Denominations; Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.06. Execution of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.07. Registration; Exchange and Registration
of Transfer of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.08. Temporary Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen
Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.10. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.11. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE THREE
REDEMPTION OF DEBT SECURITIES
SECTION 3.01. Redemption of Debt Securities;
Applicability of Section . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.02. Notice of Redemption; Selection
of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.03. Payment of Debt Securities Called
for Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.04. Redemption Suspended During Event
of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . 19
SECTION 4.02. Offices for Notices and Payments, etc. . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.03. Provisions as to Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.04. Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 4.05. Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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PAGE
SECTION 4.06. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 4.07. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 4.08. Waiver of Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 4.09. Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. Securityholder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 5.02. Preservation and Disclosure of Lists . . . . . . . . . . . . . . . . . . . . . 26
SECTION 5.03. Reports by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.04. Reports by the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE SIX
REMEDIES
SECTION 6.01. Events of Default; Acceleration of Maturity . . . . . . . . . . . . . . . . . 30
SECTION 6.02. Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.03. Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.04. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.05. Trustee May Enforce Claims Without
Possession of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 6.06. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 6.07. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.08. Unconditional Right of Securityholders
to Receive Principal and Interest . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 6.09. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 6.10. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . 37
5
6
PAGE
SECTION 6.11. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 6.12. Control by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.13. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.14. Undertaking the Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.15. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. Duties and Responsibilities of Trustee . . . . . . . . . . . . . . . . . . . . 39
SECTION 7.02. Reliance on Documents, Opinions, etc. . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.03. No Responsibility for Recitals, etc. . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.04. Ownership of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.05. Moneys to be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.06. Compensation and Expenses of Trustee . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.07. Officers' Certificate as Evidence . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 7.08. Disqualifications; Conflicting Interest
of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 7.09. Eligibility of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 7.10. Resignation or Removal of Trustee . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 7.11. Acceptance by Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 7.12. Successor by Merger, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 7.13. Limitations on Rights of Trustee
as Creditor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 7.14. Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Action by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . 59
6
7
PAGE
SECTION 8.02 Record Date for Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.03. Proof of Execution by Securityholders . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.04. Who Are Deemed Absolute Owners . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.05. Company-Owned Debt Securities Disregarded . . . . . . . . . . . . . . . . . . 60
SECTION 8.06. Revocation of Consents; Future
Securityholders Bound . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
SECTION 9.01. Purposes of Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 9.02. Call of Meeting by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 9.03. Record Date for Securityholders' Meeting . . . . . . . . . . . . . . . . . . . 62
SECTION 9.04. Call of Meeting by Company or
Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 9.05. Qualifications for Voting . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 9.06. Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 9.07. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures without Consent
of Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 10.02. Supplemental Indentures with Consent
of Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 10.03. Compliance with Trust Indenture Act;
Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 10.04. Notation on Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . 67
7
8
PAGE
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 11.01. Company May Consolidate, etc.,
on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 11.02. Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 11.03. Opinion of Counsel and Officers'
Certificate to be Given Trustee . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 12.02. Satisfaction of Sinking Fund Payments
with Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 12.03. Redemption of Debt Securities
for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 13.01. Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 13.02. Deposited Moneys to be Held in Trust
by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 13.03. Paying Agent to Repay Moneys Held . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 13.04. Return of Unclaimed Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 13.05. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 14.01. Indenture and Debt Securities Solely
Corporate Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
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PAGE
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 15.01. Benefits of Indenture Restricted to
Parties and Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 15.02. Provisions Binding on Company's Successors . . . . . . . . . . . . . . . . . . 74
SECTION 15.03. Addresses for Notices, etc. . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 15.04. Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 15.05. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 15.06. Trust Indenture Act to Control . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 15.07. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 15.08. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 15.09. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
ACCEPTANCE OF TRUST BY TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
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10
THIS INDENTURE, dated as of the 1st day of April, 1993 between
PIEDMONT NATURAL GAS COMPANY, INC., a corporation duly organized and existing
under the laws of the State of New York (the "Company"), and CITIBANK, N.A., a
national banking association duly organized and existing under the laws of the
United States (the "Trustee", which term shall include any successor trustee
appointed pursuant to Article Seven of this Indenture).
W I T N E S S E T H:
WHEREAS, the Company deems it necessary to issue from time to time for
its lawful purposes securities (hereinafter called the "Debt Securities")
evidencing its unsecured indebtedness and has fully authorized the execution
and delivery of this Indenture to provide for the issuance of the Debt
Securities in one or more series, unlimited as to principal amount, to bear
such rates of interest, to mature at such time or times, and to have such other
provisions as shall be fixed as hereinafter provided; and
WHEREAS, the Company represents that all acts and things necessary to
constitute these presents a valid indenture and agreement according to its
terms have been done and performed, and the execution of this Indenture has in
all respects been duly authorized, and the Company, in the exercise of legal
right and power in it vested, is executing this Indenture;
NOW, THEREFORE, in order to declare the terms and conditions upon
which the Debt Securities are to be authenticated, issued and received, and in
consideration of the premises, of the purchase and acceptance of the Debt
Securities by the holders thereof and of the sum of One Dollar to it duly paid
by the Trustee at the execution of these presents, the receipt of which is
hereby acknowledged, the Company covenants and agrees with the Trustee, for the
equal and proportionate benefit of the respective holders from time to time of
the Debt Securities, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. DEFINITIONS.
The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the content otherwise clearly requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section. All other terms used in
this Indenture which are defined in the Trustee Indenture Act of 1939, as
amended (the "Trust Indenture Act"), or which are by reference therein defined
in the Securities Act of 1933, as amended (the "1933 Act"), shall have the
meanings (except as herein otherwise expressly
1
11
provided or unless the context otherwise clearly requires) assigned to such
terms in the Trust Indenture Act or in the 1933 Act as in force at the date of
this Indenture as originally executed.
BOARD OF DIRECTORS:
The term "Board of Directors" or "Board" shall mean the Board of
Directors of the Company or any duly authorized and empowered committee of such
Board.
BOARD RESOLUTION:
The term "Board Resolution" shall mean a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
BOOK-ENTRY DEBT SECURITY:
The term "Book-Entry Debt Security" shall mean a Debt Security bearing
the legend specified in Section 2.03, evidencing all or part of the Debt
Securities of a series and registered in the name of the Depository or its
nominee.
BUSINESS DAY:
The term "business day" shall mean any day which is not a Saturday, a
Sunday or a day on which banks and trust companies in New York, New York, or
Charlotte, North Carolina, are authorized or obligated by law, regulation or
executive order to remain closed.
CAPITAL STOCK:
The term "Capital Stock" shall mean, as to shares of a particular
corporation, outstanding shares of stock of any class, whether now or hereafter
authorized, irrespective of whether such class shall be limited to a fixed sum
or percentage in respect of the rights of the holders thereof to participate in
dividends and in the distribution of assets upon the voluntary liquidation,
dissolution or winding up of such corporation.
COMPANY:
The term "Company" shall mean the person named as the "Company" in the
first paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation.
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COMPANY REQUEST, COMPANY ORDER AND COMPANY CONSENT:
The terms "Company Request", "Company Order" and "Company Consent"
shall mean, respectively, a written request, order or consent signed in the
name of the Company by its Chairman of the Board, President, Chief Executive
Officer, Executive Vice President, Senior Vice President or any Vice President,
or Principal Financial Officer, and by its Principal Accounting Officer,
Controller, any Assistant Controller, Secretary or any Assistant Secretary, and
delivered to the Trustee.
CORPORATE TRUST OFFICE
The term "Corporate Trust Office" shall mean the principal corporate
trust office of the Trustee, at which at any particular time its corporate
trust business shall be administered, which office on the date of execution of
this Indenture is located at 120 Wall Street, 13th Floor, New York, New York,
10043, except that with respect to presentation of Debt Securities for payment
or for registration of transfer or exchange, such term shall mean the office or
agency of the Trustee at which, at any particular time, its corporate agency
business shall be conducted which office or agency on the date of execution of
this Indenture is located at 111 Wall Street, 5th Floor, New York, New York,
10043.
DEBT SECURITY REGISTER:
The terms "Debt Security Register" and "Debt Security Registrar" shall
have the respective meanings specified in Section 2.07.
DEFAULT:
The term "Default" shall mean an event or condition which with the
giving of notice or the passage of time or both would become an Event of
Default.
DEPOSITORY:
The term "Depository" shall mean, with respect to the Debt Securities
of any series issuable or issued in whole or in part in the form of one or more
Book-Entry Debt Securities, the clearing agent registered under the Securities
and Exchange Act of 1934, as amended, specified for that purpose as
contemplated by Section 2.01.
EVENT OF DEFAULT:
The term "Event of Default" has the meaning specified in Article Six.
HOLDER:
The terms "holder", "holder of Debt Securities", "securityholder" or
other similar term shall mean the registered holder of any security.
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INDENTURE:
The term "Indenture" shall mean this instrument as originally executed
or as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including without limitation, the terms of particular series
of Debt Securities established as contemplated by Article Two.
OFFICERS' CERTIFICATE:
The term "Officers' Certificate" shall mean a certificate signed by
the Chairman of the Board, President, Chief Executive Officer, Senior Vice
President, or any Vice President, or Principal Financial Officer, and by the
Principal Accounting Officer, the Controller, any Assistant Controller, the
Secretary or any Assistant Secretary of the Company, and delivered to the
Trustee.
OPINION OF COUNSEL:
The term "Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel, who may be an employee of or counsel to the Company and who
shall be reasonably satisfactory to the Trustee, or who may be other counsel
reasonably satisfactory to the Trustee.
ORIGINAL ISSUE DISCOUNT DEBT SECURITIES:
The term "Original Issue Discount Debt Securities" shall mean any Debt
Securities which are initially sold at a discount from the principal amount
thereof and which provide upon Event of Default for declaration of an amount
less than the principal amount thereof to be due and payable upon acceleration
thereof.
OUTSTANDING:
The term "outstanding", when used with reference to Debt Securities,
shall, subject to the provisions of Section 7.08 and Section 8.04, mean, as of
any particular time, all Debt Securities authenticated and delivered by the
Trustee under this Indenture, except:
(a) Debt Securities theretofore canceled by the Trustee
or delivered to the Trustee for cancellation;
(b) Debt Securities, or portions thereof, for the payment
or redemption of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any Paying Agent (other
than the Company) or shall have been set aside and segregated in trust
by the Company (if the Company shall act as its own Paying Agent),
provided, that if such Debt Securities are to be
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redeemed prior to the maturity thereof, notice of such redemption
shall have been given as provided in Article Three or other provision
satisfactory to the Trustee shall have been made for giving such
notice; and
(c) Debt Securities which have been paid pursuant to
Section 2.09, or Debt Securities in lieu of or in substitution for
which other Debt Securities shall have been authenticated and
delivered pursuant to the terms of Section 2.07 or Section 2.09,
unless proof satisfactory to the Trustee is presented that any such
Debt Securities are held by bona fide holders in due course;
provided, however, that in determining whether the holders of the
requisite principal amount of outstanding Debt Securities have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder, Debt Securities owned by the Company or any other
obligor upon the Debt Securities or any affiliate of the Company or
such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Debt Securities which the
Trustee knows to be so owned shall be so disregarded. Debt 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 Debt
Securities and that the pledgee is not the Company or any other
obligor upon the Debt Securities or any affiliate of the Company or
such other obligor.
PAYING AGENT:
The term "Paying Agent" shall mean any person authorized by the
Company to pay the principal, premium (if any) or interest on any Debt
Securities on behalf of the Company.
PERSON:
The term "person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, limited liability company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
RECORD DATE:
The term "record date" as used with respect to any interest payment
date shall have the meaning specified in Section 2.05.
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RESPONSIBLE OFFICER:
The term "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 vice
president, any assistant vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any assistant
cashier, any senior trust officer, any trust officer or assistant trust
officer, the controller or any assistant controller or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trustee matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
TRUST INDENTURE ACT:
Except as otherwise provided in Sections 10.01 and 10.02, the term
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as amended,
and as in force at the date of this Indenture as originally executed.
VICE PRESIDENT:
The term "Vice President" when used with respect to the Company or the
Trustee shall mean any vice president, whether or not designated by a number or
word or words added before or after the title "vice president."
ARTICLE TWO
ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF DEBT SECURITIES
SECTION 2.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Debt Securities of all series which
may be authenticated and delivered and outstanding under this Indenture is not
limited.
The Debt Securities may be issued in one or more series. There shall
be established in or pursuant to a Board Resolution and, subject to Section
2.04, set forth, or determined in the manner provided, in an Officer's
Certificate, or established in one or more indentures supplemental hereto,
prior to the issuance of Debt Securities of any series,
(1) the designation of the Debt Securities of the particular
series which shall distinguish the Debt
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Securities of the series from all other Debt Securities and from Debt
Securities of any other series;
(2) any limitation on the aggregate principal amount of Debt
Securities of the series which may be authenticated and delivered
under this Indenture (except for Debt Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Debt Securities of such series pursuant to Section
2.07, 2.08, 2.09, 3.03, or 10.04 and except for any Debt Securities
which are deemed never to have been authenticated and delivered
hereunder);
(3) the person to whom any interest on a Debt Security of the
series shall be payable, if other than the person in whose name that
Debt Security is registered at the close of business on the record
date for such interest;
(4) the date or dates on which the principal of the Debt
Securities of the series is payable;
(5) the rate or rates at which the Debt Securities of the
series shall bear interest, if any, or the method by which such rate
or rates will be determined, the date or dates from which such
interest shall accrue, the date or dates on which such interest shall
be payable and the record date or dates for the interest payable;
(6) the place or places at which the principal, premium (if
any) and interest on the Debt Securities of the series shall be
payable and the method of such payment;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which Debt Securities of the
series may be redeemed, in whole or in part, at the option of the
Company;
(8) the obligations, if any, of the Company to redeem or
purchase Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a holder thereof and the
period or periods within which, the price or prices at which, and the
terms and conditions upon which Debt Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Debt Securities of the
series shall be issuable;
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(10) if the amount of payments of principal, premium (if any)
or interest on any Debt Securities of the series may be determined
with reference to an index, the manner in which such amounts shall be
determined;
(11) whether the Debt Securities of the series shall be issued
in whole or in part in the form of one or more Book-Entry Debt
Securities and, in such case, the Depository or Depositories with
respect to such Book-Entry Debt Security or Securities and the
circumstances under which any such Book-Entry Debt Security may be
registered for transfer or exchange, or authenticated and delivered,
in the name of a person other than such Depository or its nominee, if
other than as set forth in Section 2.07;
(12) if other than the principal amount thereof, the portion
of the principal amount of the Debt Securities of the series which
shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.01;
(13) any modification, amendment or addition to the covenants
of the Company set forth in Article Four or Article Five of this
Indenture with respect to the Debt Securities of the series;
(14) whether the Debt Securities of the series are subject to
defeasance or covenant defeasance, or such other means of satisfaction
and discharge as may be specified for a series;
(15) any Events of Default with respect to Debt Securities of
the series, if not otherwise set forth herein; and
(16) any other terms or provisions of such series (which shall
not be inconsistent with the provisions of this Indenture, except as
permitted by Section 10.01(g));
All Debt Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to the Board Resolution referred to above and set forth, or determined
in the manner provided, in the Officers' Certificate referred to above or in
any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or Assistant Secretary of the Company and
delivered to the Trustee at
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or prior to the delivery of the Officers' Certificate setting forth the terms
of the series.
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's Certificate of authentication shall be in the
following form:
[Form of Trustee's Certificate of Authentication]
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
-----------------------------------
Citibank, N.A., as Trustee
By:
------------------------------
Authorized Signatory
SECTION 2.03. FORM OF LEGEND FOR BOOK-ENTRY DEBT SECURITIES
Any Book-Entry Debt Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
"This Debt Security is a Book-Entry Debt Security within the meaning
of the Indenture hereinafter referred to and is registered in the name
of a Depository or a nominee of a Depository. This Debt Security is
exchangeable for Debt Securities registered in the name of a person
other than the Depository or its nominee only in limited circumstances
described in the Indenture, and no transfer of this Debt Security
(other than a transfer of this Debt Security 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) may
be registered except in such limited circumstances."
SECTION 2.04. FORM AND DELIVERY OF DEBT SECURITIES.
The Debt Securities shall be in substantially the forms approved from
time to time 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
or designation and such legends or endorsements placed thereon as the officers
executing such Debt Securities may deem appropriate and as are not inconsistent
with the provisions of this Indenture, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of
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any stock exchange on which the Debt Securities may be listed, or to conform to
usage. If the form of Debt Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 2.01 for the authentication and delivery of such
Debt Securities.
The definitive Debt Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Debt Securities, as evidenced by
their execution of such Debt Securities.
Prior to the issuance, of Debt Securities of any new series, the
Company shall deliver to the Trustee the following:
(a) The Board Resolution by or pursuant to which the
terms of such series and such form of Debt Securities has been
approved;
(b) An Officers' Certificate concurrently dated stating
that all conditions precedent provided for in this Indenture relating
to the authentication and delivery of Debt Securities in such form
have been satisfied;
(c) An Opinion of Counsel stating that: (1) the form and
terms of such Debt Securities have been established by or pursuant to
a Board Resolution in conformity with the terms of this Indenture; (2)
the Debt Securities in such form, when completed by appropriate
insertions and executed and delivered by the Company to the Trustee
for authentication in accordance with this Indenture, authenticated
and delivered by the Trustee in accordance with this Indenture, and
sold in the manner specified in such Opinion of Counsel, will be valid
and legally binding obligations of the Company and enforceable in
accordance with their terms (subject to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance, or
other similar laws affecting the rights of creditors now or hereafter
in effect, and to equitable principles that may limit the right to
specific enforcement of remedies, and further subject to the
application of principles of public policy); and (3) such other
matters as the Trustee may reasonably request; and
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(d) A Company Order directing the authentication and
delivery of such Debt Securities.
Notwithstanding the provisions of the preceding paragraph, if all Debt
Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Officers' Certificate, Opinion of Counsel, or
Company Order otherwise required pursuant to such preceding paragraph at or
prior to the time of authentication of each Debt Security of such series if
such documents are delivered at or prior to the authentication upon original
issuance of the first Debt Security of such series to be issued.
The Trustee shall not be required to authenticate and deliver any such
Debt Securities if the issue of such Debt Securities pursuant to this Indenture
will affect the Trustee's own rights, duties or immunities under the Debt
Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
SECTION 2.05. DENOMINATIONS; RECORD DATE.
The Debt Securities of each series shall be issuable as registered
Debt Securities without coupons in such denominations as may be specified as
contemplated by Section 2.01. In the absence of any such provisions with
respect to the Debt Securities of any series, the Debt Securities of such
series shall be issuable in denominations of $1,000 and any integral multiple
thereof. Each Debt Security shall be dated the date of its authentication and
may be issued at a discount without interest or shall bear interest as set
forth in the form of such Debt Security.
The term "record date" as used with respect to an interest payment date
for any series shall mean such day or days as shall be specified as
contemplated by Section 2.01; provided, however, that in the absence of any
such provisions with respect to any series, such term shall mean (1) the last
day of the calendar month next preceding such interest payment date if such
interest payment date is the fifteenth day of a calendar month; or (2) the
fifteenth day of a calendar month next preceding such interest payment date if
such interest payment date is the first day of the calendar month.
SECTION 2.06. EXECUTION OF DEBT SECURITIES.
The Debt Securities shall be signed on behalf of the Company by its
President, Chief Executive Officer, Chief Financial Officer or Chief Accounting
Officer under its corporate seal and attested by its Secretary or one of its
Assistant Secretaries. Such signatures may be the manual or facsimile
signatures of the present
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or any future such officers. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Debt Securities.
Only such Debt Securities as shall bear thereon a certificate of
authentication substantially in the form hereinabove recited, executed by the
Trustee by manual signature of one of its authorized signatories, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate by the Trustee upon any Debt Security executed by
the Company shall be conclusive evidence that the Debt Security so
authenticated has been duly authenticated and delivered hereunder.
In case any officer of the Company who shall have signed any of the
Debt Securities shall cease to be such officer before the Debt Security so
signed shall be authenticated and delivered by the Trustee or issued and sold
by the Company, such Debt Security nevertheless may be authenticated and
delivered or issued and sold as though the person who signed such Debt Security
has not ceased to be such officer of the Company; and any Debt Security may be
signed on behalf of the Company by such persons as, at the actual date of the
execution of such Debt Security, shall be the proper officers of the Company,
although at the date of the execution of this Indenture any such person was not
such officer.
Upon the execution and delivery of this Indenture, the Company shall
deliver to the Trustee an Officers' Certificate as to the incumbency and
specimen signatures of officers authorized to execute and deliver the Debt
Securities and give instructions under this Section and, as long as Debt
Securities are outstanding under this Indenture, shall deliver a similar
Officers' Certificate each year on the anniversary of the date of the first
such Officers' Certificate. The Trustee may conclusively rely on the documents
delivered pursuant to this Section (unless revoked by superseding comparable
documents) and Section 2.04 thereof as to the authorization of the Board of
Directors of any Debt Securities delivered hereunder, and the form and terms
thereof, and as to the authority of the instructing officers referred to in
this Section so to act.
SECTION 2.07. REGISTRATION; EXCHANGE AND REGISTRATION OF TRANSFER OF DEBT
SECURITIES.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee or at an office or agency to be maintained by the Company in
accordance with Section 4.02, a register (the register maintained in such
office and in any other office or agency of the Company in a place of payment
being herein sometimes collectively referred to as the "Debt Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Debt Securities
and of transfers of Debt Securities. The Trustee is hereby appointed
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"Debt Security Registrar" for the purpose of registering Debt Securities and
transfers of Debt Securities as herein provided.
Such Debt Security Register shall be in written form or in any other
form capable of being converted into written form within a reasonable time. At
all reasonable times the Debt Security Register shall be open for inspection by
the Trustee. Upon due presentment for registration of transfer of any Debt
Security of a particular series at such office or agency, the Company shall
execute and register and the Trustee shall authenticate and make available for
delivery in the name of the transferee or transferees a new Debt Security or
Debt Securities of such series for an equal aggregate principal amount.
Debt Securities of any series may be exchanged for a like aggregate
principal amount of Debt Securities of other authorized denominations of such
series. Debt Securities to be exchanged shall be surrendered at the office or
agency to be designated and maintained by the Company for such purpose in
accordance with the provisions of Section 4.02, and the Company shall execute
and register and the Trustee shall authenticate and make available for delivery
in exchange therefor the Debt Security or Debt Securities which the
securityholder making the exchange shall be entitled to receive.
All Debt Securities issued upon any registration of transfer or
exchange of Debt Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered upon such registration of
transfer or exchange.
All Debt Securities presented for registration of transfer or for
exchange, redemption or payment, as the case may be, shall (if so required by
the Company or the Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Debt Security Registrar, and duly executed by, the holder or his attorney
duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Debt 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 therewith.
The Company shall not be required to exchange or register a transfer
of (a) any Debt Securities of any series for a period of fifteen (15) days next
preceding the mailing of the notice of any redemption of such Debt Securities
of such series to be redeemed, or (b) any such series selected, called or being
called for redemption except, in the case of any such series to be redeemed in
part, the portion thereof not to be so redeemed.
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Notwithstanding the foregoing and except as otherwise specified or
contemplated by Section 2.01, any Book-Entry Debt Security shall be
exchangeable pursuant to this Section or Sections 2.08, 3.03, and 10.04 for
Debt Securities registered in the name of, and a transfer of a Book-Entry Debt
Security of any series may be registered to, any person other than the
Depository for such Debt Security or its nominee only if (i) such Depository
notifies the Company that it is unwilling or unable to continue as Depository
for such Book-Entry Debt Security or if at any time such Depository ceases to
be a clearing agency registered under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), (ii) the Company executes and delivers to the Trustee
a Company Order that such Book-Entry Debt Security shall be so exchangeable and
the transfer thereof so registerable or (iii) there shall have occurred and be
continuing an Event of Default with respect to the Debt Securities of such
series. Upon the occurrence in respect of any Book-Entry Debt Security of any
series of any one or more of the conditions specified in clauses (i), (ii), or
(iii) of the preceding sentence or such other conditions as may be specified as
contemplated by Section 2.01 for such series, such Book-Entry Debt Security may
be exchanged for Debt Securities registered in the names of, and the transfer
of such Book-Entry Debt Security may be registered to, such persons (including
persons other than the Depository with respect to such series and its nominees)
as such Depository shall direct. Notwithstanding any other provision of this
Indenture, any Debt Security authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, any Book-Entry Debt Security
shall also be a Book-Entry Debt Security and shall bear the legend specified in
Section 2.03 except for any Debt Security which is not a Book-Entry Debt
Security authenticated and delivered in exchange for, or upon registration of
transfer of, a Book-Entry Debt Security pursuant to the preceding sentence.
SECTION 2.08. TEMPORARY DEBT SECURITIES.
Pending the preparation of definitive Debt Securities of any series,
the Company may execute and the Trustee shall, upon Company Order, authenticate
and make available for delivery temporary Debt Securities of such series which
are printed, lithographed, typewritten, mimeographed or otherwise produced.
Temporary Debt Securities of any series shall be issuable as registered Debt
Securities without coupons, of any authorized denomination, and in the form
approved from time to time by or pursuant to a Board Resolution but with such
omissions, insertions and variations as may be appropriate for temporary Debt
Securities, all as may be determined by the officers executing such temporary
Debt Securities, but not inconsistent with the terms of this Indenture or any
provision of applicable law. Every temporary Debt Security shall be executed
by the Company and be authenticated by the Trustee upon the same conditions and
in substantially the same manner, and with like effect, as the definitive Debt
Securities. Without unnecessary delay, the Company shall execute and shall
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furnish definitive Debt Securities of such series and thereupon temporary Debt
Securities of such series may be surrendered in exchange therefor without
charge at the office or agency to be designated and maintained by the Company
for such purpose in accordance with the provisions of Section 4.02, and the
Trustee shall authenticate and make available for delivery in exchange for such
temporary Debt Securities an equal aggregate principal amount of definitive
Debt Securities of the same series of authorized denominations. Until so
exchanged the temporary Debt Securities of any series shall be entitled to the
same benefits under this Indenture as definitive Debt Securities of such
series.
SECTION 2.09. MUTILATED, DESTROYED, LOST OR STOLEN DEBT SECURITIES.
In case any temporary or definitive Debt Security of any series shall
become mutilated or be destroyed, lost or stolen, the Company, in the case of a
mutilated Debt Security shall, and in the case of a lost, stolen or destroyed
Debt Security may in its discretion, execute and the Trustee shall authenticate
and make available for delivery, a new Debt Security of the same series,
bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Debt Security, or in lieu of and in substitution
for the Debt Security so destroyed, lost or stolen. In every case the
applicant for a substituted Debt Security shall furnish to the Company and to
the Trustee such security or indemnity as may be required by them to save each
of them harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Company and to the Trustee evidence to
their satisfaction of the destruction, loss or theft of such Debt Security and
of the ownership thereof. The Trustee may authenticate any such substituted
Debt Security and make available for delivery the same upon the written request
or authorization of any officer of the Company. Upon the issuance of any
substituted Debt Security, 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 connected therewith and in addition a
further sum not exceeding two dollars for each Debt Security so issued in
substitution. In case any Debt Security which has matured or is about to
mature shall become mutilated or be destroyed, lost or stolen, the Company may,
instead of issuing a substituted Debt Security, pay or authorize the payment of
the same (without surrender thereof except in the case of a mutilated Debt
Security) if the applicant for such payment shall furnish the Company and the
Trustee with such security or indemnity as they may require to save them
harmless and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft
of such Debt Security and of the ownership thereof.
Every substituted Debt Security issued pursuant to the provisions of
this Section by virtue of the fact that any Debt
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Security is destroyed, lost or stolen shall, with respect to such Debt
Security, constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Debt Security shall be restored,
found or recovered at any time, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Debt
Securities duly issued hereunder.
All Debt Securities shall be held and owned upon the express condition
that the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debt Securities and shall, to
the extent permitted by law, preclude any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
SECTION 2.10. CANCELLATION.
All Debt Securities surrendered for payment, redemption, exchange or
registration of transfer shall, if surrendered to the Company or any agent of
the Company or Trustee, be delivered to the Trustee and promptly canceled by it
or, if surrendered directly to the Trustee, be canceled by it, and no Debt
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. The Company may deliver to the Trustee for
cancellation any Debt Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Debt Securities so delivered shall be promptly canceled by the Trustee. Any
canceled Debt Securities held by the Trustee shall be destroyed unless otherwise
directed by the Company.
SECTION 2.11. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 2.01 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE THREE
REDEMPTION OF DEBT SECURITIES
SECTION 3.01. REDEMPTION OF DEBT SECURITIES; APPLICABILITY OF SECTION.
Redemption of Debt Securities of any series as permitted or required
by the terms thereof shall be made in accordance with such terms and this
Section; provided, however, that if any provision of any series of Debt
Securities shall conflict with any provision of
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this Section, the provision of such series of Debt Securities shall govern.
SECTION 3.02. NOTICE OF REDEMPTION; SELECTION OF DEBT SECURITIES.
In case the Company shall desire to exercise the right to redeem all or
any part of a series of Debt Securities pursuant to this Article Three, it shall
fix a date for redemption. Notice of redemption of Debt Securities to be
redeemed at the election of the Company 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. The Company or the Trustee, as the case may be, shall mail a notice of
such redemption at least thirty (30) and not more than sixty (60) days prior to
the date fixed for redemption to the holders of such Debt Securities, to be
redeemed as a whole or in part, at their last addresses as the same appear on
the Debt Security Register. Such mailing shall be by prepaid first class mail.
The notice if mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the holder receives such
notice. In any case, failure to give such notice by mail or any defect in the
notice to the holder of any such Debt Security designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other such Debt Security. If the Company requests the
Trustee to mail a notice of redemption, it shall make such request at least
ten days prior to the designated mailing date unless a shorter notice period is
satisfactory to the Trustee.
Each such notice of redemption shall specify the date fixed for
redemption, the redemption price at which such Debt Securities are to be
redeemed, the CUSIP numbers of such Debt Securities, the place of payment, that
payment will be made upon presentation and surrender of such Debt Securities,
that interest accrued to the date fixed for redemption will be paid as
specified in said notice, and that on and after said date interest thereon or
on the portions thereof to be redeemed will cease to accrue. If less than all
of a series are to be redeemed, the notice of redemption shall specify the
numbers of the Debt Securities to be redeemed. In case any Debt Security is to
be redeemed in part only, the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state that, upon
surrender of such Debt Security, a new Debt Security or Debt Securities in
principal amount equal to the unredeemed portion thereof will be issued of the
same series.
On or before the redemption date specified in the notice of redemption
given as provided in this Section, the Company will deposit in trust with the
Trustee or with one or more Paying Agents, (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 4.03) an
amount of money sufficient to redeem on the redemption date all the Debt
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Securities or portions of Debt Securities so called for mandatory redemption at
the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If less than all of a series are to be redeemed, the
Company will give the Trustee adequate written notice at least forty-five (45)
days in advance (unless a shorter notice shall be satisfactory to the Trustee)
as to the aggregate principal amount of Debt Securities to be redeemed.
If less than all of a series are to be redeemed, the Trustee shall
select in such manner as it shall deem appropriate and fair, not more than
sixty (60) days prior to the date of redemption, the numbers of the Debt
Securities or portions thereof not previously called for redemption, to be
redeemed in whole or in part. The portions of principal of Debt Securities so
selected for partial redemption shall be equal to $1,000 or any integral
multiple thereof. The Trustee shall notify the Company of the Debt Securities
to be so redeemed.
SECTION 3.03. PAYMENT OF DEBT SECURITIES CALLED FOR REDEMPTION.
If notice of redemption has been given as above provided, the Debt
Securities or portions of Debt Securities with respect to which such notice has
been given shall become due and payable on the date and at the place stated in
such notice at the applicable redemption price, together with interest accrued
to the date fixed for redemption, and on and after said date (unless the Company
shall default in the payment of such Debt Securities at the redemption price,
together with interest accrued to said date) interest on the Debt Securities or
portions of Debt Securities so called for redemption shall cease to accrue. On
presentation and surrender of such Debt Securities subject to redemption at said
place of payment in said notice specified, the said Debt Securities or the
specified portions thereof shall be paid and redeemed by the Company at the
applicable redemption price, together with interest accrued thereon to the date
fixed for redemption (but if the date fixed for redemption is an interest
payment date, the interest payable on such date shall be paid to the holders at
the close of business on the applicable record date subject to the provisions
hereof). At the option of the Company payment may be made by check to the
holders of the Debt Securities or other persons entitled thereto against
presentation and surrender of such Debt Securities.
Upon presentation of any Debt Security redeemed in part only, the
Company shall execute and the Trustee shall authenticate and make available for
delivery to the holder thereof, at the expense of the Company, a new Debt
Security or Debt Securities, of authorized denominations, in aggregate
principal amount equal to the unredeemed portion of the Debt Security so
presented and of the same series (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the
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holder thereof or such holder's attorney duly authorized in writing).
SECTION 3.04. REDEMPTION SUSPENDED DURING EVENT OF DEFAULT.
The Trustee shall not redeem any Debt Securities (unless all Debt
Securities then outstanding are to be redeemed) or commence the giving of any
notice or redemption of Debt Securities during the continuance of any Event of
Default of which a Responsible Officer of the Trustee has actual knowledge or
notice, except that where the giving of notice of redemption of any Debt
Securities shall theretofore have been made, the Trustee shall redeem such Debt
Securities, provided funds are deposited with it for such purpose. Except as
aforesaid, any moneys theretofore or thereafter received by the Trustee shall,
during the continuance of such Event of Default, be held in trust for the
benefit of the securityholders and applied in the manner set forth in Section
6.06; provided, however, that in case such Event of Default shall have been
waived as provided herein or otherwise cured, such moneys shall thereafter be
held and applied in accordance with the provision of this Article Three.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Debt Securities that it will duly and punctually pay or cause to be paid the
principal, premium (if any) and interest on each of the Debt Securities at the
place, at the respective times and in the manner provided in the terms of the
Debt Securities and in this Indenture.
The Company hereby initially designates the Trustee as its Paying
Agent. The Company may at any time designate additional Paying Agents or
rescind the designation of any Paying Agent or approve a change in the office
through which any Paying Agent acts.
The person in whose name any Debt Security is registered at the close
of business on the record date with respect to an interest payment date shall
be entitled to receive the interest payable on such interest payment date
notwithstanding the cancellation of such Debt Security upon any registration of
transfer or exchange thereof subsequent to such record date and prior to such
interest payment date; provided, however, that if and to the extent the Company
shall default in the payment of the interest due on such interest payment date,
such defaulted interest shall be paid to the persons in whose names the Debt
Securities are registered on a subsequent record date established by notice
given
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by mail by or on behalf of the Company to the holders of Debt Securities
of the series in default not less than fifteen (15) days preceding such
subsequent record date, such record date to be not less than five (5) days
preceding the date of payment of such defaulted interest or in any other lawful
manner acceptable to the Trustee.
The principal, redemption premium (if any) and interest (if any) on
the Debt Securities shall be payable at the office or agency of the Paying
Agent or Paying Agents, in New York Clearing House funds; provided, that at the
option of the Company interest may be paid by check mailed to the holders of
the Debt Securities entitled thereto at their last addresses as they appear on
the Debt Security Register.
SECTION 4.02. OFFICES FOR NOTICES AND PAYMENTS, ETC.
As long as any of the Debt Securities remain outstanding, the Company
will designate and maintain, in the Borough of Manhattan, the City of New York
(or in such other place or places as the Company may designate from time to time
by Company Order), an office or agency where the Debt Securities may be
presented for registration of transfer and for exchange as in this Indenture
provided, an office or agency where notices and demands to or upon the Company
in respect of the Debt Securities or of this Indenture may be served, and an
office or agency where the Debt Securities may be presented for payment. The
Company will give to the Trustee notice of the location of each such office or
agency and of any change in the location thereof. In the case the Company shall
fail to maintain any such office or agency in the Borough of Manhattan, the City
of New York, or in such other place or places as the Company may designate
pursuant to this Section, or shall fail to give such notice of the location or
of any change in the location thereof, presentations may be made and notices and
demands may be served at the principal corporate trust office of the Trustee.
The Company hereby initially designates the Corporate Trust Office of
Citibank, N.A. as the office of the Company in the Borough of Manhattan, the
City of New York, where the Debt Securities may be presented for payment, for
registration of transfer and for exchange as in this Indenture provided and
where notices and demands to or upon the Company in respect of the Debt
Securities or of this Indenture may be served.
SECTION 4.03. PROVISIONS AS TO PAYING AGENT.
(a) Whenever the Company shall appoint a Paying Agent
other than the Trustee with respect to the Debt Securities of any
series, it will cause such Paying Agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section:
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(1) that it will hold all sums held by it as
Paying Agent for the payment of the principal, premium (if
any) or interest on the Debt Securities of such series
(whether such sums have been paid to it by the Company or by
any other obligor on the Debt Securities of such series) in
trust for the benefit of the holders of the Debt Securities of
such series entitled thereto or the Trustee and will notify
the Trustee of the receipt of sums to be so held;
(2) that it will give the Trustee notice of any
default by the Company (or by any other obligor on the Debt
Securities of such series) in the making of any payment of the
principal, premium (if any) or interest on the Debt Securities
of such series when the same shall be due and payable; and
(3) that at any time when any such default has
occurred and is continuing, it will, upon the written request
of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such Paying Agent.
(b) If the Company shall act as its own Paying Agent, it
will, on or before each due date of the principal, premium (if any) or
interest on the Debt Securities of any series, set aside, segregate
and hold in trust for the benefit of the holders of the Debt
Securities of such series entitled thereto a sum sufficient to pay
such principal, premium (if any) or interest so becoming due. The
Company will promptly notify the Trustee of any failure to take such
action.
Whenever the Company shall have one or more Paying Agents, it
will, prior to each due date of the principal, premium (if any) or
interest on any Debt Securities, deposit with a Paying Agent a sum
sufficient to pay the principal, premium (if any) or interest, so
becoming due, such sum to be held in trust for the benefit of the
persons entitled to such principal, premium or interest, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
(c) Anything in this Section to the contrary
notwithstanding, the Company may, at any time, for the purpose of
obtaining a satisfaction and discharge with respect to one or more or
all series of Debt Securities
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hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for such series by it or any Paying
Agent hereunder as required by this Section, such sums to be held by
the Trustee upon the trusts herein contained.
(d) Anything in this Section to the contrary
notwithstanding, the agreement to hold sums in trust as provided in
this Section is subject to the provisions of Sections 12.03 and 12.04.
SECTION 4.04. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, within one hundred twenty
(120) days after the end of each fiscal year, a brief certificate from the
Chief 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
4.04, such compliance shall be determined without regard to any period of grace
or requirement of notice under this Indenture.
SECTION 4.05 PROPERTY.
The Company will cause (or, with respect to property owned in common
with others, make reasonable effort to cause) all its properties used or useful
in the conduct of its business to be maintained and kept in good condition,
repair and working order and will cause (or with respect to property owned in
common with others make reasonable effort to cause) to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as,
in the judgment of the Company, may be necessary so that the business carried
on in conjunction therewith may be properly conducted; provided, however, that
the foregoing shall not prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any of its properties if
such discontinuance is, in the judgment of the Company, desirable in the
conduct of its business.
SECTION 4.06. CORPORATE EXISTENCE.
Subject to the provisions of Article Eleven, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights (charter and statutory) and franchises
and the corporate existence, rights (charter and statutory) and franchises of
its subsidiaries; provided, however, that the Company shall not be required to,
or to cause any subsidiary to, preserve any right or franchise or to keep in
full force and effect the corporate existence of any subsidiary if the Company
shall determine that the keeping in existence or preservation thereof is no
longer desirable in the conduct of the business of the Company and that the
loss thereof is not
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disadvantageous in any material respect to the holders of any series of Debt
Securities.
SECTION 4.07. LIMITATION ON LIENS.
Except as in this Section expressly permitted, so long as any of the
Debt Securities of any series shall be outstanding, the Company will not at any
time directly or indirectly create, assume or suffer to exist, and will not
cause, suffer or permit any subsidiary, as long as it remains a subsidiary,
directly or indirectly to create, assume or suffer to exist, except in favor of
the Company, any mortgage, pledge or other lien or encumbrance of or upon any of
its properties or assets, real, personal or mixed (including stock and other
securities of subsidiaries), whether owned at the date of this Indenture or
thereafter acquired, or of or upon any income or profits therefrom, without
making effective provision (and the Company covenants that in such case it will
make or cause to be made effective provision) whereby the Debt Securities then
outstanding together with any other indebtedness of the Company then entitled
thereto shall be secured by such mortgage, pledge, lien or encumbrance equally
and ratably with any and all other obligations and indebtedness thereby secured,
so long as any such other obligations or indebtedness shall be so secured.
Nothing in this Indenture shall be construed to prevent the Company or
any subsidiary, without so securing the Debt Securities, from creating,
assuming or suffering to exist the following mortgages, pledges, liens or
encumbrances, to which the provisions of the preceding paragraph shall not be
applicable:
1. mortgages, pledges, liens or encumbrances upon any
property presently owned or hereafter acquired, created at the time of
acquisition to secure a portion of the purchase price thereof, or
existing thereon at the date of acquisition, whether or not assumed by
the Company or a subsidiary, provided that every such mortgage,
pledge, lien or encumbrance shall apply only to the property so
acquired and fixed improvements thereon;
2. any extension, renewal, or refunding of any mortgage,
pledge, lien or encumbrance permitted by subsection (a) above, if
limited to the same property subject to, and securing not more than
the amount secured by, the mortgage, pledge, lien or encumbrance
extended, renewed or refunded;
3. the pledge of current assets, in the ordinary course
of business, to secure current liabilities;
4. mortgages or other liens upon (i) property, to secure
obligations to pay all or a part of the purchase price of such
property only out of or measured by the production, or
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the proceeds of such production, from such property of oil or gas or
products or by-products thereof, or (ii) the production from property
of oil or gas or products or by-products thereof, or the proceeds of
such production, to secure obligations to pay all or part of the
expenses of exploration, drilling or development of such property
only out of such production or the proceeds of such production;
5. mechanics' or materialmen's liens, good faith
deposits in connection with tenders, leases of real estate, bids or
contracts (other than contracts for the payment of money), deposits to
secure public or statutory obligations, deposits to secure, or in lieu
of, surety, stay or appeal bonds, and deposits as security for the
payment of taxes or assessments or similar charges, liens or security
interests given in connection with bid or completion bonds;
6. any lien arising by reason of deposits with, or the
giving of any form of security to, any governmental agency or any body
created or approved by law or governmental regulation for any purposes
at any time as required by law of governmental regulation as a
condition to the transaction of any business or the exercise of any
privilege or license, or to enable the Company or a subsidiary to
maintain self-insurance or to participate in any funds established to
cover any insurance risks in connection with workmen's compensation,
unemployment insurance, old age pensions or other social security, or
to share in the privileges or benefits required for companies
participating in such arrangements;
7. the pledge or assignment of accounts receivable,
including customers' installment paper, to banks or others made in the
ordinary course of business (including to or by any subsidiary which
is principally engaged in the business of financing the business of
the Company and its subsidiaries);
8. the liens of taxes or assessments for the then
current year or not at the time due, or the liens of taxes or
assessments already due but the validity of which is being contested
in good faith and against which an adequate reserve has been
established;
9. any judgment or lien against the Company or a
subsidiary, so long as the finality of such judgment is being
contested and the execution thereon is stayed;
10. assessments or similar encumbrances, the existence of
which does not impair the use of the property subject thereto for the
purposes for which it was acquired;
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11. landlords' liens on fixtures and movable property
located on premises leased by the Company or a subsidiary in the
ordinary course of business so long as the rent secured thereby is not
in default; and
12. liens on the assets of any limited liability company
organized under a limited liability company act of any state in which
a limited liability company is treated as a partnership for federal
income tax purposes.
SECTION 4.08. WAIVER OF COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth herein if before or after the time for such
compliance the holders of a majority in principal amount of the Debt Securities
of all series affected thereby then outstanding (voting as one class) shall
either waive such compliance in such instance or generally waive compliance
with such covenant or condition, but no such waiver shall extend to or affect
such covenant or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such covenant or condition shall remain
in full force and effect.
SECTION 4.09. NOTICE OF DEFAULT.
The Company shall file with the Trustee written notice of the
occurrence of any Default or Event of Default within five (5) business days of
its becoming aware of any such Default or Event of Default.
ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. SECURITYHOLDER LISTS.
The Company covenants and agrees that it will furnish or cause to be
furnished to the Trustee (1) semiannually, not more than fifteen (15) days
after each record date when any Debt Securities of any series are outstanding,
a list, in such form as the Trustee may reasonably require, of all information
in the possession or control of the Company as to the names and addresses of
the holders of such Debt Securities as of such date, and (2) at such other
times as the Trustee may request in writing, within thirty (30) days after
receipt by the Company of any such request, a list in such form as the Trustee
may reasonably require of the names and addresses of the holders of Debt
Securities of particular series specified by the Trustee as of a date not more
than 15 days prior to the time such information is furnished; provided,
however, that
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if and so long as the Trustee shall be the Debt Security Registrar, such list
shall not be required to be furnished.
SECTION 5.02. PRESERVATION AND DISCLOSURE OF LISTS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of each series of Debt Securities contained in the most recent list
furnished to it as provided in Section 5.01 or received by the Trustee in
its capacity as Debt Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 5.01 upon receipt of a new list so
furnished.
(b) In case three (3) or more holders of Debt Securities (the
"applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Debt Security of such
series for a period of at least six (6) months preceding the date of such
application, and such application states that the applicants desire to
communicate with other holders of Debt Securities of a particular series (in
which case the applicants must hold Debt Securities of such series) or with
holders of all Debt Securities with respect to their rights under this
Indenture or under such Debt Securities and it is accompanied by a copy of the
form of proxy or other communication which such applicants propose to transmit,
then the Trustee shall, within five (5) business days after the receipt of such
application, at its election, either
(1) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section, or
(2) inform such applicants as to the approximate number
of holders of Debt Securities of such series or all Debt Securities,
as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee, in accordance with
the provisions of subsection (a) of this Section and as to the
approximate cost of mailing to such securityholders the form of proxy
or other communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each securityholder of such series or all Debt Securities,
as the case may be, whose name and address appear in the information preserved
at the time by the Trustee in accordance with the provisions of subsection (a)
of this Section, a copy of the form of proxy or other communication which
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is specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five (5) days
after such tender, the Trustee shall mail to such applicants and file with the
Securities and Exchange Commission (the "Commission"), together with a copy of
the material to be mailed, a written statement to the effect that, in the
opinion of the Trustee, such mailing would be contrary to the best interests of
the holders of Debt Securities of such series or all Debt Securities, as the
case may be, or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. After opportunity for a
hearing upon the objections specified in the written statement so filed, the
Commission may, and if demanded by the Trustee or by such applicants shall,
enter an order either sustaining one or more of such objections or refusing to
sustain any of them. If the Commission shall enter an order refusing to
sustain any of such objections, or if, after the entry of an order sustaining
one or more of such objections, the Commission shall find, after notice and
opportunity for hearing, that all objections so sustained have been met, and
shall enter an order so declaring, the Trustee shall mail copies of such
material to all such securityholders with reasonable promptness after the entry
of such order and the renewal of such tender; otherwise, the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every holder of Debt Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither
the Company nor the Trustee nor any agent of the Company or Trustee shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the holders of Debt Securities in accordance with the
provisions of 5.02(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under said subsection (b).
SECTION 5.03. REPORTS BY THE COMPANY.
The Company covenants so long as Debt Securities are outstanding:
(a) to file with the Trustee within fifteen (15) days
after the Company is required to file the same with the Commission,
copies of the annual reports and copies of the information, documents
and other reports (or 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 1934 Act; or, if the Company is
not required to file information, documents or reports pursuant to
either of
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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 1934 Act, in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time
in such rules and regulations;
(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 by mail to all the holders of Debt
Securities of each series, as the names and addresses of such holders
appear on the Debt Security Register, within thirty (30) days after
the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company
with respect to each such series pursuant to subsections (a) and (b)
of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
SECTION 5.04. REPORTS BY THE TRUSTEE.
(a) On or about November 15, 1993 and on or before sixty (60) days
after November 15th of each year thereafter, so long as any Debt Securities are
outstanding hereunder and if there has been any change in the following, the
Trustee shall transmit to the securityholders, as provided in 5.04(c), in
accordance with and to the extent required by Section 3.13(a) of the Trust
Indenture Act, a brief report dated as of the preceding October 31st, with
respect to:
(1) any change to its eligibility under Section 7.09 and
its qualification under Section 7.08;
(2) the creation of or any material change to a
relationship specified in Section 7.08(c)(1) through 7.08(c)(10);
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and
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for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Debt Securities, on any property or
funds held or collected by it as Trustee, except that the Trustee
shall not be required (but may elect) to report such advances
if such advances so remaining unpaid aggregate not more than one-half
of one percent (.5%) of the principal amount of the Debt Securities
for any series outstanding on the date of such report:
(4) any change to the amount, interest rate, and maturity
date of all other indebtedness owing by the Company (or by any other
obligor on the Debt Securities) to the Trustee in its individual
capacity, on the date of such report, with a brief description of any
property held as collateral security therefor, except an indebtedness
based upon a creditor relationship arising in any manner described in
paragraphs (2), (3), (4), or (6) of subsection (b) of Section 7.13;
(5) any change to the property and funds, if any,
physically in the possession of the Trustee (as such) on the date of
such report;
(6) any additional issue of Debt Securities which it has
not previously reported; and
(7) any action taken by the Trustee in the performance of
its duties under this Indenture which it has not previously reported
and which in its opinion materially affects the Debt Securities, except
action in respect of a default, notice of which has been or is to be
withheld by it in accordance with the provisions of Section 7.14.
(b) The Trustee shall transmit to the holders of Debt Securities,
as provided in subsection (c) of this Section, a brief report with respect to
the character and amount of any advances (and if the Trustee elects so to
state, the circumstances surrounding the making thereof) made by the Trustee
(as such) since the date of the last report transmitted pursuant to the
provisions of 5.04(a) (or if no such report has yet been so transmitted, since
the date of execution of this Indenture), for the reimbursement of which it
claims or may claim a lien or charge, prior to that of the Debt Securities of
any series on property or funds held or collected by it as Trustee, and which
it has not previously reported pursuant to this subsection (b), except that the
Trustee for each series shall not be required (but may elect) to report such
advances if such advances remaining unpaid at any time aggregate ten percent or
less of the principal amount of Debt Securities for such series outstanding at
such time, such report to be transmitted within 90 days after such time.
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(c) Reports pursuant to this Section shall be transmitted by first
class mail to all holders of Debt Securities, as the names and addresses of
such holders appear upon the Debt Security Register and to such holders of Debt
Securities as have, within the two (2) years preceding such transmissions,
filed their names and addresses with the Trustee for that purpose.
(d) A copy of each such report shall, at the time of such
transmission to holders of Debt Securities, be filed by the Trustee with each
stock exchange upon which the Debt Securities are listed, if any, and also with
the Commission. The Company agrees to promptly notify the Trustee when and as
the Debt Securities become listed on any stock exchange.
ARTICLE SIX
REMEDIES
SECTION 6.01. EVENTS OF DEFAULT; ACCELERATION OF MATURITY.
In case one or more of the following Events of Default with respect to
a particular series shall have occurred and be continuing, that is to say:
(a) default in the payment of the principal or premium
(if any) on any of the Debt Securities of such series as and when the
same shall become due and payable either at maturity, upon redemption,
by declaration or otherwise; or
(b) default in the payment of any installment of interest
upon any of the Debt Securities of such series as and when the same
shall become due and payable, and continuance of such default for a
period of thirty (30) days; or
(c) default in the payment of any sinking or purchase fund
or analogous obligation when the same becomes due and payable by the
terms of the Debt Securities of such series; or
(d) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company in the Debt Securities or in this Indenture contained for a
period of ninety (90) days after the date on which written notice of
such failure, requiring the Company to remedy the same, 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
twenty-five percent (25%)in aggregate principal amount of the Debt
Securities affected thereby at the time outstanding; or
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(e) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company (including
a default with respect to Debt Securities of any series other than
that series) or under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by the Company
(including this Indenture) whether such indebtedness now exists or
shall hereafter be created, which default shall constitute a failure
to pay in excess of $50,000,000 principal amount of such indebtedness
when due and payable after the expiration of any applicable grace
period with respect thereto or shall have resulted in an excess of
$50,000,000 of principal amount of such indebtedness becoming or
being declared due and payable prior to the date on which it would
otherwise have become due and payable, without such indebtedness
having been discharged, or such acceleration having been rescinded or
annulled, within a period of ten (10) days after there shall have been
given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the holders of at least
twenty-five percent (25%) in aggregate principal amount of the
outstanding Debt Securities of such series a written notice specifying
such default and requiring the Company to cause such indebtedness to
be discharged or cause such acceleration to be rescinded or annulled
and stating that such notice is a "Notice of Default" hereunder; or
(f) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Company in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of its property,
or ordering the winding-up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a period of
sixty (60) consecutive days;
(g) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or shall consent to the entry of an order for
relief in an involuntary case under any such law, or shall consent to
the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or similar official) of
the Company or for any substantial part of its property, or shall make
any general assignment for the benefit of creditors; or
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(h) any other Event of Default provided in the supplemental
indenture under which such series of Debt Securities is issued or in
the form of Debt Security for such series.
then, if an Event of Default described in clause (a), (b), (c), (d) or (e)
shall have occurred and is continuing, and in each and every such case, unless
the principal amount of all the Debt Securities of such series shall have
already become due and payable, either the Trustee or the holders of not less
than twenty-five percent (25%) in aggregate principal amount of the Debt
Securities of each series affected thereby then outstanding hereunder (voting as
one class), by notice in writing to the Company by registered or certified mail
(and to the Trustee if given by securityholders) may declare the principal
amount of all the Debt Securities (or, with respect to Original Issue Discount
Debt Securities, such lesser amount as may be specified in the terms of such
Debt Securities) affected thereby to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable, anything to the contrary in this Indenture or in the Debt Securities
of such series notwithstanding, or, if an Event of Default described in clause
(f) or (g) shall have occurred and is continuing, and unless the principal of
all the Debt Securities of such series shall have already become due and
payable, either the Trustee or the holders of not less than twenty-five
percent (25%) in aggregate principal amount of all the Debt Securities then
outstanding thereunder (voting as one class), by notice in writing to the
Company by registered or certified mail (and to the Trustee if given by
securityholders), may declare the principal of all the Debt Securities (or,
with respect to Original Issue Discount Debt Securities, such lesser amount as
may be specified in the terms of such Debt Securities) to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything to the contrary in this Indenture or in
the Debt Securities notwithstanding.
SECTION 6.02. RESCISSION AND ANNULMENT.
The provisions in Section 6.01 are subject to the condition that if,
at any time after the principal of the Debt Securities of any one or more
series shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest upon all the Debt
Securities of such series or of all the Debt Securities, as the case may be,
and the principal or premium (if any) on all Debt Securities of such series or
of all the Debt Securities, as the case may be (or, with respect to Original
Issue Discount Debt Securities, such lesser amount as may be specified in the
terms of such Debt Securities), which shall have become due otherwise than
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by acceleration (with interest upon such principal and premium (if any) and, to
the extent that payment of such interest is enforceable under applicable law,
on overdue installments of interest, at the same rate as the rate of interest
specified in the Debt Securities of such series or all Debt Securities, as the
case may be (or, with respect to Original Issue Discount Debt Securities, at
the rate specified in the terms of such Debt Securities for interest on overdue
principal thereof upon maturity, redemption or acceleration of such series), to
the date of such payment of deposit, and such amount as shall be sufficient to
cover reasonable compensation to the Trustee, its agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances
made, by the Trustee except as a result of its negligence or bad faith, and any
and all defaults under the Indenture, other than the non-payment of the
principal of Debt Securities, which shall have become due by acceleration,
shall have been remedied -- then the holders of a majority in aggregate
principal amount of the Debt Securities of such series or of all the Debt
Securities as the case may be then outstanding, by written notice to the
Company and to the Trustee, may waive all defaults with respect to that series
or with respect to all Debt Securities, treated as a single class and rescind
and annul such declaration and its consequences; but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
SECTION 6.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any installment of
interest or mandatory sinking fund payment on any Debt Security when
such interest or mandatory sinking fund payment becomes due and
payable and such default continues for a period of thirty (30) days,
or
(2) default is made in the payment (other than any
sinking fund payment) of the principal or premium (if any) of any Debt
Security at the maturity thereof, including any maturity occurring by
reason of a call for redemption or otherwise,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
holders of such Debt Securities, the whole amount that shall have become due
and payable on such Debt Securities for principal, premium (if any) and
interest, with interest on the overdue principal and, to the extent that
payment of such interest shall be legally enforceable, upon overdue
installments of interest, at the rate borne by such Debt Securities; and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the
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reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceedings to judgment or final decree, and may enforce the
same against the Company or any other obligor upon such Debt Securities and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Debt
Securities, wherever situated.
If any Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
securityholders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 6.04. TRUSTEE MAY FILE PROOFS OF CLAIM.
In the case of the pendency of a receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Debt Securities or the property of the Company or such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the Debt
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(i) to file such proofs of claim for the whole amount of
principal, premium (if any) and interest owing and unpaid in respect
of the Debt Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the securityholders allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby
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authorized by each securityholder to make such payments to the Trustee, and in
the event that the Trustee shall consent to the making of such payments
directly to the securityholders, to pay to the Trustee any amount due to it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.06. To the extent that such payment of reasonable compensation,
expenses, disbursements, advances and other amounts out of the estate in any
such proceedings shall be denied for any reason, payment of the same shall be
secured by a lien on, and shall be paid out of, any and all distributions,
dividends, moneys, securities and other property which the holders of the Debt
Securities may be entitled to receive in such proceedings, whether in
liquidation or under any plan or reorganization or arrangements or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of the securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Debt Securities or the rights of any holder thereof, or to authorize the
Trustee to vote in respect of the claim of any securityholder in any such
proceeding.
SECTION 6.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBT
SECURITIES.
All rights of action and claims under this Indenture or the Debt
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Debt Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Debt Securities in respect of which such
judgment has been recovered.
SECTION 6.06. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and
in case of the distribution of such money on account of principal, premium (if
any) or interest, upon presentation of the Debt Securities, and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.06;
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SECOND: To the payment of the amounts then due and unpaid upon
the Debt Securities for principal, premium (if any) and interest,
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Debt Securities, for
principal and interest, respectively.
SECTION 6.07. LIMITATION ON SUITS.
No holder of any Debt Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) such holder has previously given written notice to
the Trustee of a continuing Event of Default;
(2) the holders of not less than twenty-five percent
(25%) in aggregate principal amount of the outstanding Debt
Securities of such series shall have made written request to the
Trustee to institute proceedings, in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such holder or holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) the Trustee for sixty (60) days after its receipt of
such notice, request and offer of indemnity has failed to institute
any such proceedings; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the
holders of a majority in principal amount of the outstanding Debt
Securities of such series;
it being understood and intended that no one or more holders of Debt Securities
shall have any right in any manner whatever by virtue of, or by availing of,
any provision of this Indenture to affect, disturb or prejudice the rights of
any other holders of Debt Securities of the same series or to obtain or to seek
to obtain priority or preference over any 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 the holders of Debt Securities of the same series.
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SECTION 6.08. UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO RECEIVE PRINCIPAL
AND INTEREST.
Notwithstanding any other provision in this Indenture, the holder of
any Debt Security shall have the right, which is absolute and unconditional, to
receive payment of the principal, premium (if any) and (subject to the third
paragraph of Section 4.01) interest on such Debt Security on the respective
stated maturities expressed in such Debt Security (or, in the case of
redemption, on the redemption date) and to institute suit for the enforcement
of any such payment, and such right shall not be impaired or affected without
the consent of such holder.
SECTION 6.09. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any securityholder 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 securityholder, then the Company, the Trustee and the
securityholders shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the securityholders shall
continue as though no such proceeding has been instituted.
SECTION 6.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as provided in Section 2.09, no right or remedy herein conferred
upon or reserved to the Trustee or to the securityholders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
SECTION 6.11. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any holder of any Debt
Security to exercise any right or remedy accruing upon any Default shall impair
any such right or remedy or constitute a waiver of any such Default or an
acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the securityholders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the
securityholders, as the case may be.
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SECTION 6.12. CONTROL BY SECURITYHOLDERS.
The holders of a majority in principal amount of outstanding Debt
Securities of each series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee under this Indenture,
provided that
(1) such direction shall not be in conflict with any
statute, rule of law or with this Indenture;
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction; and
(3) the Trustee need not take any action which it
determines might involve it in personal liability or be unjustly
prejudicial to the securityholders of such series not consenting.
SECTION 6.13. WAIVER OF PAST DEFAULTS.
The holders of a majority in principal amount of the outstanding Debt
Securities of each series may, on behalf of the holders of all the Debt
Securities of such series, waive any past default hereunder with respect to
such series and its consequences, except a default
(1) in the payment of the principal, premium (if any) or
interest on any Debt Security, or
(2) in respect of a covenant or provision hereof which
under Article Ten cannot be modified or amended without the consent
of the holder of each outstanding Debt Security of such series
affected.
Upon any such waiver, such default shall cease to exist, and any Default or
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture, but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 6.14. UNDERTAKING THE COSTS.
All parties to this Indenture agree, and each holder of any Debt
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including
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reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; provided, that the provisions of this Section shall not apply
to any suit instituted by the Trustee, to any suit instituted by any
securityholder, or group of securityholders, holding in the aggregate more than
ten percent (10%) in principal amount of the outstanding Debt Securities, or to
any suit instituted by any securityholder for the enforcement of the payment of
the principal, premium (if any) or interest on any Debt Security on or after
the respective stated maturities expressed in such Debt Security (or, in the
case of redemption, on or after the redemption date).
SECTION 6.15. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever,
claim or take the benefit or advantage of, any stay or extension laws wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefits or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. DUTIES AND RESPONSIBILITIES OF TRUSTEE.
The Trustee, prior to the occurrence of an Event of Default of a
particular series and after the curing of all Events of Default of such series
which may have occurred, undertakes to perform such duties and only such duties
with respect to such series as are specifically set forth in this Indenture and
no implied covenants or obligations shall be read into this Indenture against
the Trustee and in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture. In case an Event of
Default with respect to a particular series has occurred (which has not been
cured) the Trustee shall exercise with respect to such series such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in
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their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
No provisions of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with
respect to a particular series and after the curing of all Events of
Default with respect to such series which may have occurred, the
duties and obligations of the Trustee with respect to such series
shall be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Officers,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the holders of Debt Securities pursuant to
Section 6.12 relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture.
No provision of this Indenture shall be construed as requiring the
Trustee to expend or risk its own funds or otherwise to incur any personal
financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if there shall be reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
SECTION 7.02. RELIANCE ON DOCUMENTS, OPINIONS, ETC.
Subject to the provisions of Section 7.01:
(a) the Trustee may rely and shall be protected in acting
or refraining from action upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond,
debenture, note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
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(b) any request, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced by a Company
Request or Company Order (unless other evidence in respect thereof be
herein specifically prescribed); and any Board Resolution may be
evidenced to the Trustee by a copy thereof certified by the Secretary
or any Assistant Secretary of the Company; and whenever in the
administration of this Indenture the Trustee shall deem it desirable
that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(c) the Trustee may consult with counsel and the written
advice of such counsel and any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(d) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the securityholders pursuant to
the provisions of this Indenture, unless such securityholders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred therein or
thereby;
(e) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note or other paper or
documents, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(f) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(g) the Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith and believed by it
to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture.
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SECTION 7.03. NO RESPONSIBILITY FOR RECITALS, ETC.
The recitals contained herein and in the Debt Securities, other than
the Trustee's certificate of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for the correctness
of the same. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities, provided that the
Trustee shall not be relieved of its duty to authenticate Debt Securities only
as authorized by this Indenture. The Trustee shall not be accountable for the
use or application by the Company of Debt Securities or the proceeds thereof.
SECTION 7.04. OWNERSHIP OF DEBT SECURITIES
The Trustee or any agent of the Company or Trustee, in its individual
or any other capacity, may become the owner or pledgee of Debt Securities with
the same rights it would have if it were not Trustee, or an agent of the
Company or Trustee.
SECTION 7.05. MONEYS TO BE HELD IN TRUST
Subject to the provisions of Section 12.04 hereof, all moneys received
by the Trustee or any Paying Agent shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by law.
Neither the Trustee nor any Paying Agent shall be under any liability for
interest on any moneys received by it hereunder except such as it may agree in
writing with the Company to pay thereon.
SECTION 7.06. COMPENSATION AND EXPENSES OF TRUSTEE.
The Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, reasonable compensation for all
services rendered by it hereunder as the Company and the Trustee shall from
time to time agree in writing (which to the extent permitted by law shall not
be limited by any provision of law in regard to the compensation of a trustee
of an express trust), and, except as otherwise expressly provided, the Company
will pay or reimburse the Trustee forthwith upon its request for all reasonable
expenses and disbursements incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. If any property other than cash
shall at any time be subject to the lien of this Indenture, the Trustee, if and
to the extent authorized by a receivership or bankruptcy court of competent
jurisdiction or by the supplemental instrument subjecting such property to such
lien,
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shall be entitled to make and to be reimbursed for, advances for the purpose
of preserving such property or of discharging tax liens or other prior liens
or encumbrances thereon. The Company also covenants to indemnify the Trustee
for, and to hold it harmless against, any and all loss, damage, claims,
liability or expense, including taxes (other than taxes based upon, measured or
determined by, the income of the Trustee) incurred without negligence or bad
faith on the part of the Trustee, arising out of or in connection with the
acceptance or administration of this trust, including the costs and expense of
defending itself against any claim or liability. The obligations of the
Company under this Section shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Debt Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the holders of particular
Debt Securities.
To secure the Company's obligations under this Section, the Trustee
shall have a senior claim to which the Debt Securities are hereby made
subordinate on all money or property held or collected by the Trustee, except
that held in trust to pay principal, premium (if any) and interest (if any) on
particular Debt Securities.
When the Trustee incurs expenses or renders services after an Event of
Default, the expenses and the compensation for the services are intended to
constitute expenses of administration under any bankruptcy law.
SECTION 7.07. OFFICERS' CERTIFICATE AS EVIDENCE.
Subject to the provisions of Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
or suffering any action to be taken hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to
the Trustee, and such certificate, in the absence of negligence or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted by it under the provisions of this Indenture upon
the faith thereof.
SECTION 7.08. DISQUALIFICATIONS; CONFLICTING INTEREST OF TRUSTEE.
(a) If the Trustee has or shall acquire any conflicting interest,
as defined in this Section, it shall, within ninety (90) days after
ascertaining that it has such conflicting interest, and if an Event of Default
(as such term is defined in this Indenture, but exclusive of any period of
grace or requirement of notice) to which such conflicting interest relates
has not been cured or duly waived or otherwise eliminated before the end of
such 90-day
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period, either eliminate such conflicting interest or resign in the manner and
with the effect specified in Section 7.10.
(b) In the event that the Trustee shall fail to comply with the
provisions of Section 7.08(a), the Trustee shall, within ten (10) days after
the expiration of such 90-day period, transmit notice of such failure by first
class mail to all securityholders of the series affected by the conflicting
interest as the names and addresses of such holders appear on the Debt Security
Register.
(c) For the purposes of this Section the Trustee shall be deemed
to have a conflicting interest with respect to a particular series if such Debt
Securities have suffered an Event of Default (as such term is defined in this
Indenture, but exclusive of any period of grace or requirement of notice) and
(1) the Trustee is trustee under this Indenture with
respect to the outstanding Debt Securities of any other series or is
trustee under another indenture under which any other securities, or
certificates of interest or participation in any other securities, of
the Company are outstanding, unless such other indenture is a
collateral trust indenture under which the only collateral consists of
Debt Securities issued under this Indenture; provided that there shall
be excluded from the operation of this paragraph this Indenture with
respect to any other series, the Indenture dated as of May 1, 1963
between the Company and the Trustee, as supplemented, and any other
indenture or indentures under which other securities, or certificates
of interest or participation in other securities of the Company are
outstanding if (i) this Indenture is, and, if applicable, this
Indenture and such other indenture or indentures (and all series of
securities issuable thereunder), are wholly unsecured and rank
equally, and such other indenture or indentures (and such series) are
hereafter qualified under the Trust Indenture Act, as in effect at the
time of such qualification, unless the Commission shall have found and
declared by order pursuant to subsection (b) of Section 305 or
subsection (c) of Section 307 of the Trust Indenture Act, that
differences exist between the provisions of this Indenture with
respect to such particular series and (A) one or more other series in
this Indenture or (B) the provisions of such other indenture or
indentures (or such series) which are so likely to involve a material
conflict of interest as to make it necessary in the public interest or
for the protection of investors to disqualify the Trustee from acting
as such under this Indenture with respect to such particular series
and such other series or such other indenture or indentures, or (ii)
the Company shall have sustained the burden of proving, on application
to the
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Commission and after opportunity for hearing thereon, that
trusteeship under this Indenture with respect to such particular
series and such other series or under this Indenture and such other
indenture or indentures is not so likely to involve a material
conflict of interest as to make it necessary in the public interest or
for the protection of investors to disqualify the Trustee from acting
as such under this Indenture with respect to such particular series
and such other series or under this Indenture and such other indenture
or indentures;
(2) the Trustee or any of its directors or executive
officers is an underwriter for an obligor upon the Debt Securities of
any series issued under this Indenture;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or indirect
common control with an underwriter for the Company;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee, or
representative of the Company, or of an underwriter (other than the
Trustee itself) for the Company who is currently engaged in the
business of underwriting, except that (A) one individual may be a
director or an executive officer or both of the Trustee and a director
or an executive officer or both of the Company, but may not be at the
same time an executive officer of both the Trustee and the Company;
(B) if and so long as the number of directors of the Trustee in office
is more than nine, one additional individual may be a director or an
executive officer or both of the Trustee and a director of the
Company; and (C) the Trustee may be designated by the Company or by
any underwriter for the Company to act in the capacity of transfer
agent, registrar, custodian, paying agent, fiscal agent, escrow agent,
or depositary, or in any other similar capacity, or, subject to the
provisions of paragraph (1) of this subsection (c), to act as trustee,
whether under an indenture or otherwise;
(5) ten percent (10%) or more of the voting securities
of the Trustee is beneficially owned either by the Company or by any
director, partner or executive officer thereof, or twenty percent
(20%) or more of such voting securities is beneficially owned,
collectively, by any two or more of such persons, or ten percent (10%)
or more of the voting securities of the Trustee is beneficially owned
either by an underwriter for the Company or by any director, partner
or executive officer
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thereof, or is beneficially owned, collectively, by any two or more
such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, (A) five
percent (5%) or more of the voting securities, or ten percent (10%) or
more of any other class of security, of the Company, not including the
Debt Securities issued under this Indenture and securities issued
under any other indenture under which the Trustee is also trustee, or
(B) ten percent (10%) or more of any class of security of an
underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, five
percent (5%) or more of the voting securities of any person who, to
the knowledge of the Trustee, owns ten percent (10%) or more of the
voting securities of, or controls directly or indirectly or is under
direct or indirect common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, ten percent
(10%) or more of any class of security of any person who, to the
knowledge of the Trustee, owns fifty percent (50%) or more of the
voting securities of the Company; or
(9) the Trustee owns on the date of an Event of Default
as defined in this Indenture (but exclusive of any period of grace or
requirement of notice) or any anniversary of such Event of Default
while such Event of Default remains outstanding, in the capacity of
executor, administrator, testamentary or inter vivos trustee,
guardian, committee or conservator, or in any other similar capacity,
an aggregate of twenty-five percent (25%) or more of the voting
securities, or of any class of security, of any person, the beneficial
ownership of a specified percentage of which would have constituted a
conflicting interest under paragraph (6), (7) or (8) of this
subsection (c). As to any such securities of which the Trustee
acquired ownership through becoming executor, administrator, or
testamentary trustee of an estate which include them, the provisions
of the preceding sentence shall not apply, for a period of not more
than two years from the date of such acquisition, to the extent that
such securities included in such estate do not exceed twenty-five
percent (25%) of such voting securities or twenty-five percent (25%)
of any such class of security. Promptly after the dates of any such
Event of Default and annually in each succeeding year that the Debt
Securities
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of any series hereunder remain in Default, the Trustee shall make a
check of its holdings of such securities in any of the above-mentioned
capacities as of such dates. If the Company fails to make payment in
full of principal of or interest on any of the Debt Securities when
and as the same becomes due and payable, and such failure continues
for thirty (30) days thereafter, the Trustee shall make a prompt
check of its holdings of such securities in any of the
above-mentioned capacities as of the date of the expiration of such
30-day period, and after such date, notwithstanding the foregoing
provisions of this paragraph (9), all such securities so held by the
Trustee, with sole or joint control over such securities vested in it,
shall, but only so long as such failure shall continue, be considered
as though beneficially owned by the Trustee for the purposes of
paragraphs (6), (7) and (8) of this subsection (c); or
(10) except under the circumstances described in
paragraphs (1), (3), (4), (5) or (6) of Section 7.13(b), the Trustee
shall be or shall become a creditor of the Company.
For purposes of paragraph (1) of this subsection (c) and of Section
6.12, the term "series of securities" or "series" means a series, class or
group of securities issuable under an indenture pursuant to whose terms holders
of one such series may vote to direct the indenture trustee, or otherwise take
action pursuant to a vote of such holders, separately from holders of another
such series: provided, that "series of securities" or "series" shall not
include any series of securities issuable under an indenture if all such series
rank equally and are wholly unsecured.
The specification of percentages in paragraphs (5) to (9), inclusive,
of this subsection (c) shall not be construed as indicating that the ownership
of such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) or this subsection (c).
For the purposes of paragraphs (6), (7), (8) and (9) of this subsection
(c) only, (A) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (B) an obligation shall be deemed to
be in default when a default in payment of principal shall have continued for
thirty (30) days or more and shall not have been cured; and (C) the Trustee
shall not be deemed to be the owner or holder of (i) any security which it
holds as collateral
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security (as trustee or otherwise) for any obligation which is not in default
as defined in clause (b) above, or (ii) any security which it holds as
collateral security under this Indenture, irrespective of any default
hereunder, or (iii) any security which it holds as agent for collection, or as
custodian, escrow agent, or depositary, or in any similar representative
capacity.
(d) For the purposes of this Section:
(1) The term "underwriter" when used with reference to
the Company shall mean every person who, within one year prior to the
time as of which the determination is made, has purchased from the
Company with a view to, or has offered or has sold for the Company in
connection with, the distribution of any security of the Company
outstanding at such time, or has participated or has had a direct or
indirect participation in any such undertaking, or has participated or
has had a participation in the direct or indirect underwriting of any
such undertaking, but such term shall not include a person whose
interest was limited to a commission from an underwriter or dealer not
in excess of the usual and customary distributors' or sellers'
commission.
(2) The term "director" shall mean any director of a
corporation or any individual performing similar functions with
respect to any organization whether incorporated or unincorporated.
(3) The term "person" shall mean an individual, a
corporation, a partnership, an association, a joint-stock company,
limited liability company, a trust, an unincorporated organization, or
a government or political subdivision thereof. As used in this
paragraph, the term "trust" shall include only a trust where the
interest or interests of the beneficiary or beneficiaries are
evidenced by a security.
(4) The term "voting security" shall mean any security
presently entitling the owner or holder thereof to vote in the
direction or management of the affairs of a person, or any security
issued under or pursuant to any trust, agreement or arrangement
whereby a trustee or trustees or agent or agents for the owner or
holder of such security are presently entitled to vote in the
direction or management of the affairs of a person.
(5) The term "Company" shall mean any obligor upon the
Debt Securities.
(6) The term "executive officer" shall mean the
president, every vice president, every trust officer, the
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cashier, the secretary, and the treasurer of a corporation, and any
individual customarily performing similar functions with respect to any
organization whether incorporated or unincorporated, but shall not
include the chairman of the board of directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of
the Trustee, the Company or any other person referred to in this
Section (each of whom is referred to as a "person" in this paragraph)
means such amount of the outstanding voting securities of such person
as entitles the holder or holders thereof to cast such specified
percentage of the aggregate votes which the holders of all the
outstanding voting securities of such person are entitled to cast in
the direction or management of the affairs of such person.
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of
the class outstanding.
(3) The term "amount", when used in regard to securities,
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares, and the number of
units if relating to any other kind of security.
(4) The term "outstanding" means issued and not held by
or for the account of the issuer. The following securities shall not
be deemed outstanding within the meaning of this definition:
(A) securities of an issuer held in a sinking
fund relating to securities of the issuer of the same class;
(B) securities of an issuer held in a sinking
fund relating to another class of securities of the issuer, if
the obligation evidenced by such other class of securities is
not in default as to principal or interest or otherwise;
(C) securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise; and
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(D) securities held in escrow if placed in escrow
by the issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(5) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges, provided,
however, that in the case of secured evidences of indebtedness, all of
which are issued under a single indenture, differences in the interest
rates or maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes and provided
further, that, in the case of unsecured evidences of indebtedness,
differences in the interest rates or maturity dates thereof shall not
be deemed sufficient to constitute them securities of different
classes, whether or not they are issued under a single indenture.
(f) Except in the case of a default in the payment of the
principal or interest on any Debt Securities of any series issued
hereunder, or in the payment of any sinking or purchase fund
installment, the Trustee shall not be required to resign as provided
by subsection (c) of this Section if the Trustee shall have sustained
the burden of proving, on application to the Commission and after
opportunity for hearing thereon, that (i) such Event of Default may
be cured or waived during a reasonable period and under the procedures
described in such application, and (ii) a stay of the Trustee's duty
to resign will not be inconsistent with the interests of the holders
of the Debt Securities of any series issued hereunder. The filing of
such an application shall automatically stay the performance of the
duty to resign until the Commission orders otherwise. Any resignation
of the Trustee shall become effective only upon the appointment of a
successor trustee and such successor's acceptance of such appointment
as provided in Section 7.11.
(g) If Section 310(b) of the Trust Indenture Act is amended at any
time after the date of this Indenture to change the circumstances under which a
Trustee shall be deemed to have a conflicting interest with respect to the Debt
Securities of any series or to change any of the definitions in connection
therewith, this Section 7.08 shall be automatically amended to incorporate such
changes, unless such changes would cause any Trustee then acting as Trustee
hereunder with respect to any outstanding Debt Securities to be deemed to have
a conflicting interest, in which case such changes shall be incorporated
herein only to the extent
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that such changes (i) would not cause the Trustee to be deemed to have a
conflicting interest, or (ii) are required by law.
SECTION 7.09. ELIGIBILITY OF TRUSTEE.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States or
of any State or Territory thereof or of the District of Columbia, which (a) is
authorized under such laws to exercise corporate trust powers, and (b) is
subject to supervision or examination by Federal, State, Territorial or
District of Columbia authority, (c) shall have at all times a combined capital
and surplus of not less than $5,000,000 and (d) shall not be the Company or any
person directly or indirectly controlling, controlled by, or under common
control with the Company. If such corporation publishes reports of condition
at least annually, pursuant to law, or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation at any time 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 the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 7.10.
SECTION 7.10. RESIGNATION OR REMOVAL OF TRUSTEE.
(a) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign with respect to one or more or all series by giving
written notice of resignation to the Company. Upon receiving such notice of
resignation the Company shall promptly appoint a successor trustee with respect
to the applicable series by written instrument, in duplicate, executed by order
of the Board of Directors of the Company, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee shall have been so appointed and have accepted appointment
within thirty (30) days after the mailing of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions
of the subsection (a) of Section 7.08 with respect to any series of
Debt Securities after written request therefor by the Company or by
any securityholder who has been a bona fide holder of a Debt Security
or
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Debt Securities of such series for at least six (6) months, or
(2) the Trustee shall cease to be eligible in accordance
with the provisions of Section 7.09 with respect to any series of Debt
Securities and shall fail to resign after written request therefor by
the Company or by any such securityholder, or
(3) the Trustee shall become incapable of acting with
respect to any series of Debt Securities, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Trustee or of its property
shall be appointed, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case,
the Company may remove the Trustee with respect to the applicable
series of Debt Securities and appoint a successor trustee with
respect to such series by written instrument, in duplicate, executed
by order of the Board of Directors of the Company, one copy of which
instrument shall be delivered to the Trustee so removed and one copy
to the successor trustee, or, subject to the provisions of Section
6.14, any securityholder of such series who has been a bona fide
holder of a Debt Security or Debt Securities of the applicable series
for at least six (6) months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee
with respect to such series. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Debt Securities of all series (voting as one class) at the time outstanding may
at any time remove the Trustee with respect to Debt Securities of all series
and appoint a successor trustee with respect to the Debt Securities of all
series.
(d) Any resignation or removal of the Trustee and any appointment
of a successor trustee pursuant to any of the provisions of this Section shall
become effective upon the appointment of a successor trustee and the acceptance
of appointment by the successor trustee as provided in Section 7.11.
SECTION 7.11. ACCEPTANCE BY SUCCESSOR TRUSTEE.
Any successor trustee appointed as provided in Section 7.10 shall
execute, acknowledge and deliver to the Company and to its
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predecessor trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee with respect
to all or any applicable series shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, duties and obligations with respect to such series of
its predecessor hereunder, with like effect as if originally named as trustee
herein; but, nevertheless, on the written request of the Company or of the
successor trustee, the predecessor trustee shall, upon payment of any amounts
then due it pursuant to the provisions of Section 7.06, execute and deliver an
instrument transferring to such successor trustee all the rights and powers of
the predecessor trustee. Upon request of any such successor trustee, the
Company shall execute any and all instruments in writing in order more fully
and certainly to vest in and confirm to such successor trustee all such rights
and powers. Any trustee, including the initial Trustee, ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or collected by
such trustee to secure any amounts then due it pursuant to the provisions of
Section 7.06.
In case of the appointment hereunder of a successor trustee with
respect to the Debt Securities of one or more (but not all) series, the
Company, the predecessor Trustee and each successor trustee with respect to the
Debt Securities of any applicable series shall execute and deliver an indenture
supplemental hereto which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the predecessor Trustee with respect to the Debt Securities of any
series as to which the predecessor Trustee is not retiring shall continue to be
vested in the predecessor Trustee, and 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.
No successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
qualified and eligible under the provisions of this Article Seven.
Upon acceptance of appointment by a successor trustee as provided in
this Section, the Company shall mail notice of the succession of such trustee
hereunder to all holders of Debt Securities of any applicable series as the
names and addresses of such holders shall appear on the Debt Security Register.
If the Company fails to mail such notice in the prescribed manner within ten
(10) days after the acceptance of appointment by the successor
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trustee, the successor trustee shall cause such notice to be so mailed at the
expense of the Company.
SECTION 7.12. SUCCESSOR BY MERGER, ETC.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be qualified and eligible under the provisions
of this Article Seven, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. In case any Debt 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 Debt Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such Debt
Securities.
SECTION 7.13. LIMITATIONS ON RIGHTS OF TRUSTEE AS CREDITOR.
(a) Subject to the provisions of Section 7.13(b), if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company or of any other obligor on the Debt Securities within
three (3) months prior to a default, as defined in Section 7.13(c), or
subsequent to such a default, then, unless and until such default shall be
cured, the Trustee shall set apart and hold in a special account for the
benefit of the Trustee individually, the holders of the Debt Securities and the
holders of other indenture securities (as defined in subsection (c) of this
Section):
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such three (3)
months' period and valid as against the Company and its other
creditors, except any such reduction resulting from the receipt or
disposition of any property described in paragraph (2) of this
subsection, or from the exercise of any right of set-off which the
Trustee could have exercised if a petition in bankruptcy had been
filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of
any claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three months' period, or an amount equal to the proceeds of
any such property, if disposed of, subject,
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however, to the rights, if any, of the Company and its other creditors in such
property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments
made on account of any such claim by any person (other than
the Company) who is liable thereon, and (ii) the proceeds of
the bona fide sale of any such claim by the Trustee to a third
person, and (iii) distributions made in cash, securities, or
other property in respect of claims filed against the Company
in bankruptcy or receivership or in proceedings for
reorganization pursuant to Title 11 of the United States Code
or applicable state law;
(B) to realize, for its own account, upon any
property held by it as security for any such claim, if such
property was so held prior to the beginning of such three (3)
months' period;
(C) to realize, for its own account, but only to
the extent of the claim hereinafter mentioned, upon any
property held by it as security for any such claim, if such
claim was created after the beginning of such three (3)
months' period and such property was received as security
therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time
such property was so received the Trustee had no reasonable
cause to believe that a default as defined in Section 7.13(c)
would occur within three (3) months; or
(D) to receive payment on any claim referred to
in paragraph (B) or (C) of this subsection, against the
release of any property held as security for such claim as
provided in such paragraph (B) or (C), as the case may be, to
the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D) of this subsection,
property substituted after the beginning of such three (3) months' period for
property held as security at the time of such substitution shall, to the extent
of the fair value of the property released, have the same status as the
property released, and, to the extent that any claim referred to in any of such
paragraphs is created in renewal of or in substitution for or for the purpose
of repaying or refunding any preexisting claim of the
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Trustee as such creditor, such claim shall have the same status as such
preexisting claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the securityholders and the holders of other indenture
securities in such manner that the Trustee, the securityholders and the holders
of other indenture securities realize, as a result of payments from such
special account and payments of dividends on claims filed against the Company
in bankruptcy or receivership or in proceedings for reorganization pursuant to
Title 11 of the United States Code or applicable state law, the same percentage
of their respective claims, figured before crediting to the claim of the
Trustee anything on account of the receipt by it from the Company of the funds
and property in such special account and before crediting to the respective
claims of the Trustee, the securityholders and the holders of other indenture
securities, dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to Title 11 of the
United States Code or applicable state law, but after crediting thereon
receipts on account of the indebtedness represented by their respective claims
from all sources other than from such dividends and from the funds and property
so held in such special account. As used in this paragraph, with respect to
any claim, the term "dividends" shall include any distribution with respect to
such claim, in bankruptcy or receivership or in proceedings for reorganization
pursuant to Title 11 of the United States Code or applicable state law, whether
such distribution is made in cash, securities, or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership, or proceeding
for reorganization is pending shall have jurisdiction (i) to apportion between
the Trustee, the securityholders and the holders of other indenture securities,
in accordance with the provisions of this paragraph, the funds and property
held in such special account and the proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made
to the Trustee, the securityholders and the holders of other indenture
securities with respect to their respective claims, in which event it shall not
be necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such claim, or to
make a specific allocation of such distributions as between the secured and
unsecured portions of such claims or otherwise to apply the provisions of this
paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of
such three (3) months' period shall be subject to the provisions of this
subsection (a) as though such resignation or removal had not occurred. Any
Trustee who has resigned or been
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removed prior to the beginning of such three (3) months' period shall be
subject to the provisions of this subsection (a) if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim which
would have given rise to the obligation to account, if such Trustee
had continued as trustee, occurred after the beginning of such three
(3) months' period; and
(ii) such receipt of property or reduction of claim
occurred within three (3) months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a)
of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a maturity
of one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction, or by this Indenture, for the purpose
of preserving any property which shall at any time be subject to the
lien of this Indenture or of discharging tax liens or other prior
liens or encumbrances thereon, if notice of such advance and of the
circumstances surrounding the making thereof is given to the
securityholders at the time and in the manner provided in this
Indenture;
(3) disbursements made in the ordinary course of business
in the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary, or
other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a result of
goods or securities sold in a cash transaction as defined in
subsection (c) of this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation
of any drafts, bills of exchange, acceptances, or obligations which
fall within the classification of self-liquidating paper as defined in
subsection (c) of this Section.
(c) As used in this Section:
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(1) The term "default" shall mean any failure to make
payment in full of principal or interest upon any of the Debt
Securities or the other indenture securities when and as such
principal or interest becomes due and payable.
(2) The term "other indenture securities" shall mean
securities upon which the Company is an obligor (as defined in the
Trust Indenture Act) outstanding under any other indenture (A) under
which the Trustee is also trustee, (B) which contains provisions
substantially similar to the provisions of subsection (a) of this
Section, and (C) under which a default exists at the time of the
apportionment of the funds and property held in the special account
referred to in such subsection (a).
(3) The term "cash transaction" shall mean any
transaction in which full payment for goods or securities sold is made
within seven (7) days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks or bankers and
payable upon demand.
(4) The term "self-liquidating paper" shall mean any
draft, bill of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company for the purposes of
financing the purchase, processing, manufacture, shipment, storage or
sale of goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of
the goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company arising
from the making, drawing, negotiating or incurring of the draft, bill
of exchange, acceptance or obligation.
(5) The term "Company" shall mean any obligor upon the
Debt Securities.
SECTION 7.14. NOTICE OF DEFAULT.
Within ninety (90) days after the occurrence of any default on a
series of Debt Securities hereunder, the Trustee shall transmit by mail to all
securityholders of that series, as their names and addresses appear in the Debt
Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that
except in the case of a default in the payment of the principal or interest on
any Debt Security, or in the payment of any sinking or purchase fund
installment, the Trustee shall be protected in withholding such notice if and
so long as the trust committee of directors
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and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the securityholders; and
provided, further, that in the case of any default of the character specified
in clause (c) of Section 6.01 no such notice to securityholders shall be given
until at least thirty (30) days after the occurrence thereof. For the purpose
of this Section, the term "default" means any event which is, or after notice
or lapse of time or both would become, an Event of Default.
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. ACTION BY SECURITYHOLDERS.
Whenever in this Indenture it is provided that the holders of a
specified percentage in aggregate principal amount of the Debt Securities of
any or all series may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action the holders of
such specified percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by
securityholders in person or by agent, or (b) by the record of the holders of
Debt Securities voting in favor thereof at any meeting of securityholders duly
called and held in accordance with the provisions of Article Nine, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of securityholders.
Without limiting the generality of the foregoing, a holder, including
a Depository that is a holder of a Book-Entry Debt Security, may make, give or
take, by a proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by holders, and a Depository that is
a holder of a Book-Entry Debt Security may provide its proxy or proxies to the
beneficial owners of interest in any such Book-Entry Debt Security.
In determining whether the holders of a specified percentage in
aggregate principal amount of the Debt Securities of any or all series have
taken any action (including the making of any demand or request, the giving of
any notice, consent or waiver or the taking of any other action), the principal
amount of any Original Issue Discount Debt Security that may be counted in
making such determination and that shall be deemed to be outstanding for such
purposes shall be equal to the amount of the principal thereof that could be
declared to be due and payable upon an Event of Default pursuant to the terms
of such Original Issue Discount Debt Security at the time the taking of such
action is evidenced to the Trustee.
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SECTION 8.02. RECORD DATE FOR VOTING.
The Company may set a record date for purposes of determining the
identity of securityholders entitled to vote or consent to any action by vote
or consent authorized or permitted by Section 6.12. Such record date shall be
the later of thirty (30) days prior to the first solicitation of such consent
or the date of the most recent list of holders furnished to the Trustee
pursuant to Section 5.01 prior to such solicitation.
SECTION 8.03. PROOF OF EXECUTION BY SECURITYHOLDERS.
Subject to the provisions of Section 7.01, 7.02 and 9.05, proof of the
execution of any instrument by a securityholder or its agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee.
The ownership of Debt Securities shall be proved by the Debt Security
Register or by a certificate of the Debt Security Registrar.
The record of any securityholders' meeting shall be proved in the
manner provided in Section 9.06.
SECTION 8.04. WHO ARE DEEMED ABSOLUTE OWNERS.
Prior to due presentment of a Debt Security for registration of
transfer or exchange, the Company, the Trustee and any agent of the Company or
Trustee may deem the person whose name such Debt Security shall be registered
upon the books of the Company to be, and may treat him as, the absolute owner
of such Debt Security (whether or not such Debt Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon), for the
purpose of receiving payment of or on account of the principal, premium (if
any) and interest on such Debt Security and for all other purposes; and neither
the Company nor the Trustee nor any agent of the Company or Trustee shall be
affected by any notice to the contrary. All such payments so made to any
holder for the time being, or upon his order, shall be valid and, to the extent
of the sum or sums so paid, effectual to satisfy and discharge the liability
for moneys payable upon any such Debt Security.
SECTION 8.05. COMPANY-OWNED DEBT SECURITIES DISREGARDED.
In determining whether the holders of the required aggregate principal
amount of Debt Securities have concurred in any direction, consent or waiver
under this Indenture, the Debt Securities which are owned by the Company or any
other obligor on the Debt Securities, or by any person directly or indirectly
controlling or controlled by or under direct or indirect common
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control with the Company or any other obligor on the Debt Securities, shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver, only
the Debt Securities which the Trustee knows are so owned shall be so
disregarded. The Debt Securities so owned which have been pledged in good
faith may be regarded as outstanding for the purposes of this Section if the
pledgee shall establish to the satisfaction of the Trustee the pledgee's right
to vote such Debt Securities and that the pledgee is not a person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In the case of a dispute
as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
SECTION 8.06. REVOCATION OF CONSENTS; FUTURE SECURITYHOLDERS BOUND.
At any time prior to the taking of any action by the holders of the
percentage in aggregate principal amount of the Debt Securities specified in
this Indenture in connection with such action, any holder of a Debt Security,
the identifying number of which is shown by the evidence to be included in the
Debt Securities the holders of which have consented to such action, may, by
filing written notice with the Trustee at its office and upon proof of holding
as provided in Section 8.03, revoke such action so far as concerns such Debt
Security. Except as aforesaid any such action taken by the holder of any Debt
Security shall be conclusive and binding upon such holder and upon all future
holders and owners of such Debt Security and of any Debt Security issued in
exchange or substitution therefor irrespective of whether or not any notation
in regard thereto is made upon such Debt Security. Any action taken by the
holders of the percentage in aggregate principal amount of the Debt Securities
specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the holders of all of
the Debt Securities.
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
SECTION 9.01. PURPOSES OF MEETING.
A meeting of securityholders of any or all series may be called at any
time and from time to time pursuant to the provisions of this Article for any
of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to waive any default
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hereunder and its consequences, or to take any other action authorized to be
taken by securityholders pursuant to any of the provisions of Article Six;
(b) to remove the Trustee and appoint a successor trustee pursuant
to the provisions of Article Seven;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(d) to take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal amount of the Debt
Securities of any or all series, as the case may be, under any other provision
of this Indenture or under applicable law.
SECTION 9.02. CALL OF MEETING BY TRUSTEE.
The Trustee may at any time call a meeting of securityholders of any
or all series to take any action specified in Section 9.01, to be held at such
time and at such place in the Borough of Manhattan, The City of New York, as
the Trustee shall determine. Notice of every meeting of the securityholders of
any or all series, setting forth the time and place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be mailed
to all holders of Debt Securities of the applicable series as the names and
addresses of such holders appear on the Debt Security Register not less than
thirty (30) nor more than one hundred eighty (180) days prior to the date fixed
for the meeting.
SECTION 9.03. RECORD DATE FOR SECURITYHOLDERS' MEETING.
The record date for determining the identity of securityholders
entitled to attend any meeting of securityholders shall be the earlier of
thirty (30) days prior to the date fixed for the meeting or the date of the
most recent list of holders furnished to the Trustee pursuant to Section 5.01
prior to the date fixed for the meeting.
SECTION 9.04. CALL OF MEETING BY COMPANY OR SECURITYHOLDERS.
In case at any time the Company, pursuant to a Board Resolution, or
the holders of at least twenty-five percent (25%) in aggregate principal amount
of the Debt Securities of any or all series, as the case may be, then
outstanding, shall have requested the Trustee to call a meeting of
securityholders of any or all series to take any action authorized in Section
9.01, by written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have mailed the notice of
such meeting within thirty (30) days after receipt of such request, then the
Company or the holders of such Debt
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Securities in the amount above specified may determine the time and the place
in said Borough of Manhattan for such meeting and may call such meeting by
mailing notice thereof as provided in Section 9.02.
SECTION 9.05. QUALIFICATIONS FOR VOTING.
To be entitled to vote at any meeting of securityholders a person
shall be a holder of one or more Debt Securities of a series with respect to
which a meeting is being held or a person appointed by an instrument in writing
as proxy by such a holder. The only persons who shall be entitled to be
present or to speak at any meeting of the securityholders shall be the persons
entitled to vote at such meeting and their counsel and any representatives of
the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 9.06. REGULATIONS.
Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting
of securityholders, in regard to proof of the holding of Debt Securities and of
the appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by securityholders as provided in Section 9.03, in which case the
Company or the securityholders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the holders of a
majority in principal amount of the Debt Securities represented at the meeting
and entitled to vote.
Subject to the provisions of Sections 8.01 and 8.04, at any meeting
each securityholder or proxy shall be entitled to one vote for each $1,000
outstanding principal amount of Debt Securities held or represented by him,
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Debt Security challenged as not outstanding and ruled by the
chairman of the meeting to be not outstanding. The chairman of the meeting
shall have no right to vote except as a securityholder or proxy. Any meeting
of securityholders duly called pursuant to the provisions of Section 9.02 or
9.03 may be adjourned from time to time, and the meeting may be reconvened
without further notice.
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SECTION 9.07. VOTING.
The vote upon any resolution submitted to any meeting of
securityholders shall be by written ballot on which shall be subscribed the
signature of the securityholders or proxies and on which shall be inscribed the
identifying number or numbers or to which shall be attached a list of
identifying numbers of the Debt Securities held or represented by them. The
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of securityholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having knowledge of the facts
setting forth a copy of the notice of the meeting and showing that said notice
was mailed as provided in Section 9.02. The record shall be signed and
verified by the chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to
be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS.
Without the consent of securityholders, the Company, when authorized
by Board Resolution, and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as in force at the date of the
execution thereof) for one or more series and for one or more of the following
purposes:
(a) to evidence the succession of another corporation to
the Company, or successive successions and the assumption by the
successor corporation of the covenants, agreements and obligations of
the Company pursuant to Article Eleven hereof;
(b) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions as its Board of
Directors shall consider to be for the protection of the holders of
Debt Securities, and to make the occurrence, or the
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occurrence and continuance, of a default in any of such additional
covenants, restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth, with such period of
grace, if any, and subject to such conditions as such supplemental
indenture may provide;
(c) to provide for the issuance under this Indenture of
Debt Securities, whether or not then outstanding, in coupon form
(including Debt Securities registrable as to principal only) and to
provide for exchangeability of such Debt Securities with Debt
Securities issued hereunder in fully registered form and to make all
appropriate changes for such purpose;
(d) to modify, eliminate or add to the provisions of
this Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the Trust Indenture Act, or
under any similar federal statute hereafter enacted, and to add to
this Indenture such other provisions as may be expressly permitted by
the Trust Indenture Act, excluding, however, the provisions referred
to in Section 316(a)(2) of the Trust Indenture Act or any corresponding
provision in any similar federal statute hereafter enacted;
(e) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee;
(f) to evidence and provide for the acceptance and
appointment hereunder by a successor trustee with respect to the Debt
Securities of one or more series and to add or change any 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 Section 7.11;
(g) to change or eliminate any provision of the Indenture
or to add any new provision to the Indenture; provided that if such
change, elimination or addition will adversely affect the interests of
the holders of the Debt Securities of any series in any material
respect, such change, elimination or addition will become effective
with respect to such series only when there is no Debt Security of
such series remaining outstanding under the Indenture;
(h) to provide collateral security for the Debt
Securities;
(i) to change any place where (1) the principal, premium
(if any) and interest on Debt Securities of any series shall be
payable; (2) any Debt Securities of any series may be surrendered for
registration of transfer; (3) Debt Securities of any series may be
surrendered for exchange; and (4) notices
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and demands to or upon the Company in respect of the Debt Securities
of any series and the Indenture may be served; and
(j) to establish the form or terms of Debt Securities of
any series as permitted herein.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which adversely affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise. No supplemental indenture
shall be effective as against the Trustee unless and until the Trustee has duly
executed and delivered the same.
SECTION 10.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS.
With the consent (evidenced as provided in Section 8.01) of the
holders of not less than sixty-six and two-thirds percent (66-2/3%) in
aggregate principal amount of the Debt Securities of each series at the time
outstanding affected by such supplemental indenture (voting as one class), the
Company, when authorized by a Board Resolution, and the Trustee may from time
to time and at any time enter into indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act as in force
at the date of the execution thereof) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner the
rights of the holders of the Debt Securities of such series; provided, however,
that no such supplemental indenture shall (1) extend the fixed maturity of any
Debt Securities, or reduce the principal amount thereof or premium (if any) or
reduce the rate or extend the time of payment of interest thereon, without the
consent of the holder of each Debt Security so affected, or (2) reduce the
aforesaid percentage of Debt Securities, the consent of the holders of which is
required for any such supplemental indenture, without the consent of the
holders of all Debt Securities then outstanding.
Upon the request of the Company, accompanied by a copy of a Board
Resolution certified by the Secretary or an Assistant Secretary of the Company
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of securityholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture
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or otherwise, in which case the Trustee may in its discretion, but shall not
be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 10.02, the
Company shall mail a notice, setting forth in general terms the substance of
such supplemental indenture, to all holders of Debt Securities of each series
so affected as the names and addresses of such holders shall appear on the Debt
Security Register. Any failure of the Company so to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
SECTION 10.03. COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF SUPPLEMENTAL
INDENTURES.
Any supplemental indenture executed pursuant to the provisions of this
Article Ten shall comply with the Trust Indenture Act, as then in effect. Upon
the execution of any supplemental indenture pursuant to the provisions of this
Article Ten, this Indenture shall be and be deemed to be modified and amended
in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Debt Securities shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02,
shall be entitled to receive and shall be fully protected in relying upon an
Opinion of Counsel as conclusive evidence that any such supplemental indenture
complies with the provisions of this Article Ten.
SECTION 10.04. NOTATION ON DEBT SECURITIES.
Debt Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article Ten may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. New Debt Securities of any
series so modified as to conform, in the opinion of the Trustee and the Board
of Directors of the Company, to any modification of this Indenture contained in
any such supplemental indenture may be prepared by the Company,
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authenticated by the Trustee and delivered, without charge to the
securityholders, in exchange for the Debt Securities of such series then
outstanding.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 11.01. COMPANY MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
The Company covenants that it will not merge into or consolidate with
any other corporation or sell or convey all or substantially all of its assets
to any person, firm or corporation, unless (1) either the Company shall be the
continuing corporation, or the successor corporation (if other than the
Company) shall be a corporation organized and existing under the laws of the
United States of America or a state thereof or the District of Columbia and
such corporation shall expressly assume the due and punctual payment of the
principal, premium (if any) and interest on all the Debt Securities, according
to their tenor, and the due and punctual performance and observance of all of
the covenants and conditions of this Indenture to be performed by the Company
by supplemental indenture satisfactory to the Trustee, executed and delivered
to the Trustee by such corporation, and (2) the Company or such successor
corporation, as the case may be, shall not, immediately after such merger or
consolidation, or such sale or conveyance, be in default in the performance of
any such covenant or condition.
SECTION 11.02. SUCCESSOR CORPORATION SUBSTITUTED.
In case of any such consolidation, merger, sale or conveyance and upon
any such assumption by the successor corporation, such successor corporation
shall succeed to and be substituted for the Company, with the same effect as if
it had been named herein as the party of the first part. Such successor
corporation thereupon may cause to be signed, and may issue either in its own
name or in the name of the Company, any or all of the Debt Securities issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor corporation,
instead of the Company, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall make available for delivery any Debt Securities which previously shall
have been signed and delivered by the officers of the Company to the Trustee
for authentication, and any Debt Securities which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All of the Debt Securities so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Debt Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Debt Securities had been issued at the date of the
execution thereof.
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In case of any such consolidation, merger, sale or conveyance such
changes in phraseology and form (but not in substance) may be made in the Debt
Securities thereafter to be issued as may be appropriate.
SECTION 11.03. OPINION OF COUNSEL AND OFFICERS' CERTIFICATE TO BE GIVEN
TRUSTEE.
The Trustee shall receive an Opinion of Counsel and Officers'
Certificate as conclusive evidence that any such consolidation, merger, sale or
conveyance, and any such assumption, complies with the provisions of this
Article Eleven and that all conditions precedent herein provided for relating
to such transaction have been complied with.
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01 APPLICABILITY OF ARTICLE.
The provisions of this Article Twelve shall be applicable to any
sinking fund for the retirement of Debt Securities of a series except as
otherwise specified as contemplated by Section 2.01 for Debt Securities of
such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt 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 Debt Securities of any series is herein referred
to as an "optional sinking fund payment." If provided for by the terms of Debt
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 12.02. Each sinking fund payment
shall be applied to the redemption of Debt Securities of any series as provided
for by the terms of Debt Securities of such series.
SECTION 12.02. SATISFACTION OF SINKING FUND PAYMENTS WITH DEBT SECURITIES.
The Company (1) may deliver outstanding Debt Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Debt Securities of a series which have been redeemed either at the election of
the Company pursuant to the terms of such Debt Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Debt Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Debt Securities of such series
required to be made pursuant to the terms
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of such Debt Securities as provided for by the terms of such series; provided,
that such Debt Securities have not been previously so credited. Such Debt
Securities shall be received and credited for such purpose by the Trustee at
the Redemption Price specified in such Debt Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly.
SECTION 12.03. REDEMPTION OF DEBT SECURITIES FOR SINKING FUND.
Not less than sixty (60) days prior to each sinking fund payment date
for any series of Debt Securities, the Company will deliver to the Trustee an
Officers' 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 Debt
Securities of that series pursuant to Section 12.02 and will also deliver to
the Trustee any Debt Securities to be so delivered. Not less than forty-five
(45) days before each such sinking fund payment date the Trustee shall select
the Debt Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 3.02 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 3.02. Such notice having been duly given, the redemption
of such Debt Securities shall be made upon the terms and in the manner stated
in Section 3.03.
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 13.01. DISCHARGE OF INDENTURE.
(a) If,
(1) the Company shall have delivered to the Trustee for cancellation
all Debt Securities of any series theretofore authenticated (other than any
Debt Securities of such series which shall have been destroyed, lost or stolen
and which shall have been replaced or paid as provided in Section 2.09), or
(2) all such Debt Securities of such series not theretofore delivered
to the Trustee for cancellation shall have become due and payable, or are by
their terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall deposit or cause to
be deposited with the Trustee as trust funds
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(i) an amount of money (other than moneys repaid by the
Trustee or any Paying Agent to the Company in accordance with Section 13.04)
which will be sufficient, or
(ii) Government Obligations, as defined in 13.05, (which do not
contain provisions permitting the redemption or other prepayment thereof at the
option of the issuer thereof), the principal and interest on which when due,
without any regard to reinvestment thereof, will provide monies which will be
sufficient, or
(iii) a combination of (i) and (ii) which will be sufficient,
to pay at maturity or upon redemption all Debt Securities of such series not
theretofore delivered to the Trustee for cancellation, including principal,
premium (if any) and interest due or to become due to such date of maturity or
date fixed for redemption, as the case may be, and, if, in any such case, the
Company shall also pay or cause to be paid all other sums payable hereunder by
the Company with respect to such series, then this Indenture shall cease to be
of further effect with respect to the Debt Securities of such series, and the
Trustee, on demand of and at the cost and expense of the Company and subject
to Section 15.04, shall execute proper instruments acknowledging satisfaction
of and discharging this Indenture with respect to the Debt Securities of such
series. The Company agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred by the Trustee in connection with
this Indenture or the Debt Securities of such series. Notwithstanding the
satisfaction and discharge of this Indenture with respect to the Debt
Securities of any series or of all series, the obligations of the Company to
the Trustee under Section 7.06 shall survive.
(b) In addition to the provisions of the next preceding paragraph, the
Company may terminate its obligations under the Debt Securities of any series
and this Indenture, except those obligations referred to in the penultimate
paragraph of this Section 13.01, if all Debt Securities of such series
previously authenticated and delivered (other than destroyed, lost or stolen
Debt Securities of such series which have been replaced or paid or Debt
Securities of such series for whose payment money or securities have
theretofore been held in trust and thereafter repaid to the Company, as
provided in Section 13.04) have been delivered to the Trustee for cancellation
and the Company has paid all sums payable by it hereunder, or if the Company
has irrevocably deposited or caused to be deposited with the Trustee (or an
escrow agent satisfactory to the Trustee), under the terms of an irrevocable
trust agreement in form and substance satisfactory to the Trustee, as trust
funds in trust solely for the benefit of the holders for that purpose, (i)
money or (ii) Government Obligations (which do not contain provisions
permitting the redemption or other
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prepayment thereof at the option of the issuer thereof), or a combination
thereof, maturing as to principal and interest in such amounts and at such
times as are sufficient without consideration of any reinvestment of such
principal or interest, to pay principal of and interest on the outstanding Debt
Securities of such series to maturity, provided that the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of such
Government Obligations to the payment of said principal of and interest with
respect to the outstanding Debt Securities of such series.
Such irrevocable trust agreement shall include, among other things,
provisions for (1) payment of the principal of and interest on the Debt
Securities of such series, when due, including any mandatory sinking fund
payments, (2) payment of the fees and expenses of the Trustee, its agents and
counsel incurred or to be incurred in connection with carrying out such trust
provisions, (3) rights of registration, transfer, substitution and exchange of
Debt Securities of such series in accordance with the terms stated in this
Indenture, and (4) continuation of the rights and obligations and immunities of
the Trustee as against the holders as stated in this Indenture.
Notwithstanding the first paragraph of this Section 13.01(b), the
Company's obligations in Sections 2.07, 2.09, 4.01, 4.02, 6.01, 6.02, 6.09,
7.06, 7.10 and 13.04 shall survive until the Debt Securities of such series are
no longer outstanding; provided, however, that the Company's obligations in
Section 6.01 and 6.02 shall survive only with respect to an Event of Default
defined in Section 6.01(b) or 6.01(c). Thereafter the Company's obligations in
Sections 6.09, 7.06 and 13.04 shall survive.
After any such irrevocable deposit, accompanied by an Officers'
Certificate which shall state that the provisions of the first two paragraphs
of this Section 13.01(b) have been complied with, and upon delivery by the
Company to the Trustee of an opinion of independent legal counsel who shall be
acceptable to the Trustee, or, in lieu thereof, a favorable determination by
the Internal Revenue Service to the effect that holders of the Debt Securities
of such series will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and discharge and will be subject to
federal income tax on the same amount and in the same manner and at the same
time as would have been the case if such deposit and discharge had not occurred,
then the Company shall be discharged of its obligations under the Debt
Securities of such series and this Indenture with respect to the Debt
Securities of such series except for those surviving obligations specified
above, and the Trustee upon request shall acknowledge in writing such
discharge. Prior to the delivery of such acknowledgement, the Trustee may
require the Company to deliver to it an Officers' Certificate and Opinion of
Counsel, each stating that all conditions precedent providing for relating to
the deposit and discharge contemplated by this provision have been complied
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with, and the Opinion of Counsel shall also state that such deposit does not
violate applicable law.
SECTION 13.02. DEPOSITED MONEYS TO BE HELD IN TRUST BY TRUSTEE.
All moneys deposited with the Trustee pursuant to Section 13.01 shall
be held in trust and applied by it to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent), to the
holders of the particular Debt Securities for the payment or redemption of
which such moneys have been deposited with the Trustee, of all sums due and to
become due thereon for principal, premium (if any) and interest.
SECTION 13.03. PAYING AGENT TO REPAY MONEYS HELD.
In connection with the satisfaction and discharge of this Indenture
with respect to Debt Securities of any series and the payment of all amounts
due the Trustee under Section 7.06 all moneys with respect to such Debt
Securities then held by any Paying Agent under the provisions of this Indenture
shall, upon written demand of the Company, be repaid to it or paid to the
Trustee and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
SECTION 13.04. RETURN OF UNCLAIMED MONEYS.
Any money deposited with or paid to the Trustee or any Paying Agent,
or then held by the Company, in trust for the payment of the principal, premium
(if any) or interest on any Debt Security of any series and remaining unclaimed
for two years after such principal, premium or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the holder of such Debt
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease.
The Company will deliver to the Trustee an Officers' Certificate and
an Opinion of Counsel which together shall state that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
SECTION 13.05. GOVERNMENT OBLIGATIONS.
Government Obligations include direct obligations of, or obligations
unconditionally guaranteed by, the United States of America entitled to the
benefit of the full faith and credit thereof and certificates, depositary
receipts or other instruments which evidence a direct ownership interest in
such obligations or
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in any specific interest or principal payments due in respect thereof.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 14.01 INDENTURE AND DEBT SECURITIES SOLELY CORPORATE OBLIGATIONS.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Debt Security, or because of any
indebtedness evidenced thereby, shall be had against any incorporator, or
against any past, present or future stockholder, officer or director, as such,
of the Company or of any successor corporation, either directly or through the
Company or any successor corporation, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Debt Securities by the holders
thereof and as part of the consideration for the issue of the Debt Securities.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 15.01. BENEFITS OF INDENTURE RESTRICTED TO PARTIES AND
SECURITYHOLDERS.
Nothing in this Indenture or in the Debt Securities, expressed or
implied, shall give or be construed to give to any person, other than the
parties hereto and their successors and assigns and the holders of the Debt
Securities, any legal or equitable right, remedy or claim under this Indenture
or under any covenant or provision herein contained, all such covenants and
provisions being for the sole benefit of the parties hereto and their
successors and assigns and the holders of the Debt Securities.
SECTION 15.02. PROVISIONS BINDING ON COMPANY'S SUCCESSORS.
All the covenants, stipulations, promises and agreements in this
Indenture contained by or on behalf of the Company shall bind its successors
and assigns, whether so expressed or not.
SECTION 15.03. ADDRESSES FOR NOTICES, ETC.
Any notice or demand which by any provisions of this Indenture is
required or permitted to be given or served by the Trustee or by the holders of
Debt Securities to or on the Company may be given or served by postage prepaid
first class mail addressed (until another
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address is filed by the Company with the Trustee), as follows: Piedmont
Natural Gas Company, Inc., 1915 Rexford Road, Post Office Box 33068, Charlotte,
North Carolina 28233, Attention: E.C. Hinson, Senior Vice President - Finance.
Any notice, direction, request or demand by any securityholder to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made in writing at the principal Corporate Trust Office
of the Trustee as set forth in Section 4.02.
SECTION 15.04. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Upon any application or demand by the Company to the Trustee to take
any action under any of the provisions of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent 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 have been complied with, except that
in the case of any such application or demand as to which the furnishing of
such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate or
opinion need be furnished.
Each Officer's Certificate and Opinion of Counsel provided for in this
Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture shall include (1) a
statement that the person making such certificate or opinion has read such
covenant or condition; (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
such person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
SECTION 15.05. LEGAL HOLIDAYS.
Except as otherwise specified as provided in Section 2.01, in any case
where the date of maturity of principal or interest on the Debt Securities or
the date fixed for redemption of any Debt Securities shall be a Saturday or
Sunday or a legal holiday in New York, New York, or Charlotte, North Carolina,
or in such other place or places as the Company may designate pursuant to
Section 4.02 or a day on which banking institutions in New York, New York, or
Charlotte, North Carolina, or in such other place or places are authorized by
law or required by executive order to close, then payment of principal,
premium (if any) or interest need not be made on such date but may be made on
the next succeeding business day
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with the same force and effect as if made on the date of maturity or the date
fixed for redemption, and no interest shall accrue for the period after such
date.
SECTION 15.06. TRUST INDENTURE ACT TO CONTROL.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
SECTION 15.07. EXECUTION IN COUNTERPARTS.
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 and the same instrument.
SECTION 15.08. GOVERNING LAW.
This Indenture and each Security shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be governed
by and construed in accordance with the laws of said State.
SECTION 15.09. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Debt 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.
The Trustee, by its execution of this Indenture, hereby accepts the
trusts in this Indenture declared and provided, upon the terms and conditions
hereinabove set forth.
IN WITNESS WHEREOF, PIEDMONT NATURAL GAS COMPANY, INC., has caused
this Indenture to be signed and acknowledged by its Chairman of the Board or
its President or one of its Vice Presidents, and its corporate seal to be
affixed hereunto, and the same to be attested by its Secretary or an Assistant
Secretary; and Citibank, N.A., has caused this Indenture to be signed and
acknowledged by one of its Vice Presidents, and its corporate seal to be
affixed
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hereunto, and the same to be attested by one of its Senior Trust Officers, all
as of the day and year first above written.
PIEDMONT NATURAL GAS COMPANY, INC.
ATTEST:
/s/ Martin C. Ruegsegger By /s/ E.C. Hinson
- ------------------------- -----------------------------
E.C. Hinson, Senior Vice
President - Finance
[Corporate Seal]
CITIBANK, N.A., AS TRUSTEE
ATTEST:
/s/ Carol Ng By /s/ P. DeFelice
- ------------------------- -----------------------------
Vice President
[Corporate Seal]
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STATE OF NORTH CAROLINA )
: ss.:
COUNTY OF MECKLENBURG )
On the 28th day of May, 1993 before me personally came E.C. Hinson,
to me known, who, being by me duly sworn, did depose and say that he resides
at Charlotte, North Carolina, that he is Senior Vice President - Finance of
Piedmont Natural Gas Company, Inc., one of the parties described in and which
executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the board of directors of said
corporation, and that he signed his name thereto by like authority.
/s/ Rebecca N. Wynne
---------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 28th day of May, 1993 before me personally came P. DeFelice,
to me known, who, being by me duly sworn, did depose and say that (s)he
resides at 47-09 169th Street, Flushing, N.Y. 11358, that (s)he is Vice
President of Citibank, N.A., as Trustee, one of the parties described in and
which executed the above instrument; that (s)he knows the corporate seal of
said corporation; that the seal affixed to the said instrument is such
corporate seal; that it was so affixed by authority of the board of directors
of said corporation, and that (s)he signed (his) (her) name thereto by like
authority.
/s/ Peter M. Pavlyshin
--------------------------------
Notary Public
Peter M. Pavlyshin
[NOTARIAL SEAL] Notary Public, State of New York
No. 41-4991297
Qualified in Queens County
Certificate Filed in New York County
Commission Expires January 27, 1994
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