<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 20, 1995
REGISTRATION NO. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES EXCHANGE ACT OF 1933
PUBLIC SERVICE COMPANY
OF NORTH CAROLINA, INCORPORATED
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
NORTH CAROLINA 56-0233140
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
400 COX ROAD
POST OFFICE BOX 1398
GASTONIA, NORTH CAROLINA 28053-1398
(704) 864-6731
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
JACK G. MASON
400 COX ROAD
POST OFFICE BOX 1398
GASTONIA, NORTH CAROLINA 28053-1398
(704) 834-6422
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
<TABLE>
<S> <C>
JEFFREY S. HAY, ESQ. DAVID P. FALCK, ESQ.
FENNEBRESQUE, CLARK, SWINDELL & HAY WINTHROP, STIMSON, PUTNAM & ROBERTS
NATIONSBANK CORPORATE CENTER ONE BATTERY PARK PLAZA
100 NORTH TRYON STREET, SUITE 2900 NEW YORK, NEW YORK 10004-1490
CHARLOTTE, NORTH CAROLINA 28202 (212) 858-1000
(704) 347-3800
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of the Registration Statement as
determined by market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is used to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act of 1933 registration statement number
of the earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, please check the following box and list the
Securities Act of 1933 registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
[CAPTION]
<TABLE>
<S> <C> <C>
TITLE OF EACH CLASS PROPOSED MAXIMUM
OF SECURITIES TO AGGREGATE OFFERING AMOUNT OF
BE REGISTERED PRICE (1) REGISTRATION FEE
<S> <C> <C>
Senior Unsecured Debt...................................................... $125,000,000.00 $43,103.45
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE>
PROSPECTUS (SUBJECT TO COMPLETION, ISSUED , 1995)
$125,000,000
PUBLIC SERVICE COMPANY OF NORTH CAROLINA,
INCORPORATED
SENIOR UNSECURED DEBT
PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED ("COMPANY") INTENDS
TO OFFER FROM TIME TO TIME ITS SENIOR UNSECURED DEBT SECURITIES ("DEBT
SECURITIES") UP TO AN AGGREGATE AMOUNT OF $125,000,000. THE DEBT SECURITIES MAY
BE OFFERED AS SEPARATE SERIES IN AMOUNTS, AT PRICES AND ON TERMS TO BE
DETERMINED IN LIGHT OF MARKET CONDITIONS AT THE TIME OF SALE AND SET FORTH IN A
PROSPECTUS SUPPLEMENT OR PROSPECTUS SUPPLEMENTS.
CERTAIN SPECIFIC TERMS OF EACH SERIES OF DEBT SECURITIES IN RESPECT OF
WHICH THIS PROSPECTUS IS DELIVERED ("OFFERED SECURITIES") WILL BE SET FORTH IN
AN ACCOMPANYING PROSPECTUS SUPPLEMENT ("PROSPECTUS SUPPLEMENT") WITH RESPECT TO
SUCH SERIES, INCLUDING, WHERE APPLICABLE, THE SPECIFIC DESIGNATION, AGGREGATE
PRINCIPAL AMOUNT, MATURITY, RATE OR RATES AND TIME OR TIMES OF PAYMENT OF ANY
INTEREST, ANY REDEMPTION PROVISIONS, ANY SINKING FUND PROVISIONS, DENOMINATIONS,
ANY CURRENCY FOR THE PAYMENT OF, OR ANY INDEX TO BE USED FOR DETERMINING THE
AMOUNT OF ANY PAYMENT OF, PRINCIPAL OR INTEREST, ANY MODIFICATIONS TO THE
ACCELERATION PROVISIONS, COVENANTS AND EVENTS OF DEFAULT DESCRIBED HEREIN,
WHETHER SUCH SERIES OF OFFERED SECURITIES IS ISSUABLE IN THE FORM OF ONE OR MORE
GLOBAL DEBT SECURITIES ("GLOBAL DEBT SECURITIES"), WHETHER THE OFFERED
SECURITIES ARE SUBJECT TO DEFEASANCE, THE IDENTITY OF THE REGISTRAR AND ANY
PAYING AGENT, THE IDENTITY OF THE TRUSTEE, ANY LISTING ON A SECURITIES EXCHANGE,
THE INITIAL PUBLIC OFFERING PRICE, METHODS OF DISTRIBUTION AND ANY OTHER
SPECIFIC TERMS IN CONNECTION WITH THE OFFERING AND SALE OF SUCH OFFERED
SECURITIES.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THE DEBT SECURITIES MAY BE SOLD TO OR THROUGH UNDERWRITERS, DEALERS OR
AGENTS, INCLUDING MORGAN STANLEY & CO. INCORPORATED, AS DESIGNATED FROM TIME TO
TIME, OR DIRECTLY TO OTHER PURCHASERS, OR THROUGH A COMBINATION OF SUCH METHODS.
IF ANY UNDERWRITERS, DEALERS OR AGENTS ARE INVOLVED IN THE SALE OF DEBT
SECURITIES IN RESPECT OF WHICH THIS PROSPECTUS IS BEING DELIVERED, THE NAMES OF
SUCH UNDERWRITERS, DEALERS OR AGENTS, THE AMOUNT PROPOSED TO BE PURCHASED BY
THEM, AND ANY COMPENSATION TO SUCH UNDERWRITERS, DEALERS OR AGENTS, WILL BE SET
FORTH IN, OR MAY BE CALCULATED FROM, THE APPLICABLE PROSPECTUS SUPPLEMENT. THE
NET PROCEEDS TO THE COMPANY WILL ALSO BE SET FORTH IN THE APPLICABLE PROSPECTUS
SUPPLEMENT. SEE "PLAN OF DISTRIBUTION."
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF DEBT SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
MORGAN STANLEY & CO.
INCORPORATED
DECEMBER , 1995
(A redherring appears on the left-hand side of this page, rotated 90
degrees. Text appears as follows:)
Information contained herein is subject to completion or amendment.
A registration statement relating to these securities has been
filed with the Securities and Exchange Commission. These securities
may not be sold nor may offers to buy be accepted prior to the
time the registration statement becomes effective. This prospectus
shall not constitute an offer to sell or the solicitation of an
offer to buy nor shall there be any sale of these securities in
any jurisdiction in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such jurisdiction.
<PAGE>
NO DEALER, SALESMAN, OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED, OR INCORPORATED BY
REFERENCE, IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR ANY UNDERWRITER OR DEALER. NEITHER THIS PROSPECTUS NOR THE ACCOMPANYING
PROSPECTUS SUPPLEMENT CONSTITUTES AN OFFER TO SELL OR A SOLICITATION OF AN OFFER
TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO
WHOM SUCH AN OFFER CANNOT BE LAWFULLY MADE IN SUCH JURISDICTION. NEITHER THE
DELIVERY OF THIS PROSPECTUS OR THE ACCOMPANYING PROSPECTUS SUPPLEMENT NOR ANY
SALE MADE HEREUNDER OR THEREUNDER SHALL CREATE, UNDER ANY CIRCUMSTANCES, ANY
IMPLICATION THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
THE DATE HEREOF OR THE AFFAIRS OF THE COMPANY HAVE NOT CHANGED SINCE SUCH DATE.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended ("Exchange Act") and in accordance therewith
files reports, proxy statements, and other information with the Securities and
Exchange Commission ("Commission"). Such reports, proxy statements, and other
information can be inspected and copied at the public reference facilities of
the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549; and at the
Commission's following regional offices: Suite 1400, 500 West Madison Street,
CitiCorp Center, Chicago, Illinois 60661, and Seven World Trade Center, 13th
Floor, New York, New York 10048. Copies of this material can also be obtained at
prescribed rates from the Public Reference Section of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549. The Company's Common Stock, par value
$1.00 per share ("Common Stock"), is listed on the New York Stock Exchange
("NYSE") under the symbol "PGS." Reports, proxy statements and other information
concerning the Company can be inspected at the offices of the NYSE, 20 Broad
Street, New York, New York 10005.
The Company has filed a registration statement (of which this Prospectus
forms a part) on Form S-3 (herein, together with all amendments and exhibits,
the "Registration Statement") under the Securities Act of 1933, as amended
("Securities Act"), with respect to the Debt Securities offered hereby. This
Prospectus does not contain all of the information set forth in the Registration
Statement, certain portions of which are omitted in accordance with the rules
and regulations of the Commission. For further information with respect to the
Company and the Debt Securities, reference is made to the Registration Statement
and the exhibits filed as a part thereof. Statements contained herein concerning
any document filed as an exhibit are not necessarily complete and, in each
instance, reference is made to the copy of such document filed as an exhibit to
the Registration Statement. Each such statement is herein qualified in its
entirety by such reference. The Registration Statement, including the exhibits
thereto, may be inspected without charge at the office of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549 and copies may be obtained from the
Commission at prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1995 has been filed by the Company with the Commission pursuant to
the Exchange Act and is hereby incorporated by reference into this Prospectus.
In addition, all documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act
prior to termination of the offering of the securities covered by this
Prospectus shall be deemed to be incorporated by reference into this Prospectus
and to be a part hereof from the date of filing of such documents.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein, or in any
Prospectus Supplement (or in any other subsequently filed document which also is
incorporated or is deemed to be incorporated by reference herein) modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed to constitute a part hereof except as so modified or superseded.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON, INCLUDING ANY
BENEFICIAL OWNER, TO WHOM THIS PROSPECTUS IS DELIVERED, ON THE WRITTEN OR ORAL
REQUEST OF ANY SUCH PERSON, A COPY OF ANY OR ALL OF THE DOCUMENTS REFERRED TO
ABOVE WHICH HAVE BEEN OR MAY BE INCORPORATED HEREIN BY REFERENCE (OTHER THAN
EXHIBITS TO SUCH DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED BY REFERENCE
IN SUCH DOCUMENTS). SUCH A WRITTEN OR ORAL REQUEST SHOULD BE DIRECTED TO JACK G.
MASON, TREASURER, PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED, POST
OFFICE BOX 1398, GASTONIA, NORTH CAROLINA 28053-1398, TELEPHONE NUMBER (704)
834-6422.
2
<PAGE>
THE COMPANY
The Company is a public utility engaged primarily in transporting and
distributing natural gas to approximately 285,000 residential, commercial and
industrial customers in North Carolina. The Company's 26-county service area has
a population of over 2,300,000 and includes the fast-growing areas of Raleigh,
Durham, Chapel Hill; Concord and Gastonia near Charlotte; and Asheville and
Hendersonville. The Company's utility operations are subject to regulation by
the North Carolina Utilities Commission.
The Company was organized as a North Carolina corporation in 1938. The
Company's corporate offices are located at 400 Cox Road, Post Office Box 1398,
Gastonia, North Carolina 28053-1398, telephone (704) 864-6731.
USE OF PROCEEDS
Except as may be set forth in the Prospectus Supplement accompanying this
Prospectus, the Company intends to use the net proceeds from the sale of the
Debt Securities for repayment of short-term debt incurred primarily to finance
the Company's construction program and for other general corporate purposes.
Pending application of such net proceeds for specific purposes, such proceeds
may be invested in short-term or marketable securities. Specific allocations of
proceeds to a particular purpose that have been made at the date of any
Prospecuts Supplement will be described therein.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the Company for the fiscal year ended September 30 of the years indicated.
Earnings represent consolidated income from continuing operations before income
taxes and fixed charges. Fixed charges include interest, whether expensed or
capitalized, and the amortization of debt expense.
<TABLE>
<CAPTION>
1995 1994 1993 1992 1991
<S> <C> <C> <C> <C>
3.64 3.14 2.56 2.98 2.20
</TABLE>
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to the Debt Securities so offered will be described
in the Prospectus Supplement relating to such Debt Securities.
The Debt Securities will be issued under an Indenture dated as of
, 1996 (hereinafter referred to as of the "Indenture"), between
the Company and First Union National Bank of North Carolina, as Trustee
(hereinafter referred to as the "Trustee"). The following statements are subject
to the detailed provisions of the Indenture, a copy of which is filed as an
exhibit to the Registration Statement and which is also available for inspection
at the office of the Trustee. Section references are to the Indenture. The
following summaries of certain provisions of the Indenture do not purport to be
complete, and wherever particular provisions of the Indenture are referred to,
such provisions, including definitions of certain terms, are incorporated by
reference as part of such summaries or terms, which are qualified in their
entirety by such reference to the provisions of the Indenture.
GENERAL
The Debt Securities will rank as to priority of payment equally with all
other outstanding unsubordinated and unsecured indebtedness of the Company. The
Indenture does not limit the aggregate amount of Debt Securities which may be
issued thereunder, nor does it limit the incurrence or issuance by the Company
of other unsecured debt or of secured debt (except to the extent described under
"Certain Covenants -- LIMITATION ON LIENS"). On December 1, 1995, the Company
redeemed its remaining outstanding first mortgage bonds and commenced the
process of closing its first mortgage indenture and discharging the lien thereof
on its properties and assets. Agreements governing other outstanding funded debt
of the Company generally prohibit the Company from issuing additional funded
debt unless, after giving effect thereto, consolidated funded debt is equal to
or less than 70% of consolidated capitalization and earnings available for fixed
charges for a recent 12-month period are at least equal to 175% of fixed charges
for such period.
The Indenture provides that the Debt Securities may be issued from time to
time in one or more series. The Company may authorize the issuance and provide
for the terms of a series of Debt Securities pursuant to a supplemental
indenture or
3
<PAGE>
pursuant to a resolution (or action taken pursuant to a resolution) of its Board
of Directors, any duly authorized committee of the Board of Directors or any
committee of officers or other representatives of the Company duly authorized by
the Board of Directors for such purpose. The Indenture provides the Company with
the ability to "reopen" a previous issue of a series of Debt Securities and to
issue additional Debt Securities of such series, if permitted by the terms of
such series. (Section 3.1 of the Indenture.)
Reference is made to the Prospectus Supplement relating to the particular
series of Debt Securities being offered thereby for the terms of such Debt
Securities, including, where applicable: (1) the specific designation of such
Debt Securities; (2) any limit upon the aggregate principal amount of such Debt
Securities; (3) the date or dates on which the principal of and premium, if any,
on such Debt Securities is payable or the method of determining such date or
dates; (4) the rate or rates (which may be fixed, variable, or zero) at which
such Debt Securities will bear interest, if any, or the method of calculating
such rate or rates; (5) the date or dates from which interest, if any, will
accrue or the method by which such date or dates will be determined; (6) the
date or dates on which interest, if any, will be payable and the record date or
dates therefor; (7) the place or places where principal of, premium, if any, and
interest, if any, on such Debt Securities will be payable; (8) the period or
periods within which, the price or prices at which, the currency in which, and
the other terms and conditions upon which, such Debt Securities may be redeemed,
in whole or in part, at the option of the Company; (9) the obligation, if any,
of the Company to redeem or purchase such Debt Securities pursuant to any
sinking fund or analogous provisions, or upon the happening of a specified
event, or at the option of a holder, and the period or periods within which, the
price or prices at which, and the other terms and conditions upon which, such
Debt Securities shall be redeemed or purchased, in whole or in part, pursuant to
such obligation; (10) the denominations in which such Debt Securities are
authorized to be issued; (11) if other than the currency of the United States
that as of the time of payment is legal tender for the payment of public and
private debts, the currency for which Debt Securities may be purchased, or in
which Debt Securities may be denominated, and/or in which such Debt Securities
are stated to be payable; (12) if the amount of payments of principal of and
premium, if any, or interest, if any, on such Debt Securities may be determined
with reference to an index, formula, or other method (which index, formula, or
other method may be based on a currency other than that in which such Debt
Securities are stated to be payable), the index, formula, or other method by
which such amount shall be determined; (13) if the amount of payments of
principal of and premium, if any, or interest, if any, on such Debt Securities
may be determined with reference to an index, formula, or other method based on
the prices of securities or commodities, with reference to changes in the prices
of particular securities or commodities, or otherwise by application of a
formula, the index, formula, or other method by which such amount shall be
determined; (14) if other than the entire principal amount thereof, the portion
of the principal amount of such Debt Securities which will be payable upon
declaration of the acceleration of the maturity thereof or the method by which
such portion shall be determined; (15) the person to whom any interest on any
such Debt Security shall be payable if other than the person in whose name such
Debt Security is registered on the applicable record date; (16) provisions, if
any, granting special rights to the holders of such Debt Securities upon the
occurrence of such events as may be specified; (17) any addition to, or
modification or deletion of, any Event of Default (as hereinafter defined) or
any covenant of the Company specified in the Indenture with respect to such Debt
Securities; (18) any additional amounts the Company will pay in respect of the
Debt Securities or any option of the Company to redeem the Debt Securities in
lieu of such payment; (19) whether the Debt Securities will be registered or
bearer Debt Securities; (20) the date any Debt Securities will be dated if other
than the date of issuance; (21) the forms of the Debt Securities, and coupons,
if any; (22) the application, if any, of the defeasance provisions described
below under "Defeasance," or such other means of defeasance as may be specified
for such Debt Securities; (23) the identity of the registrar and any paying
agent; (24) whether such Debt Securities are to be issued in whole or in part in
the form of one or more temporary or permanent global securities, and, if so,
the identity of the depository for such global security or securities and
whether interests in such Debt Securities in global form may be exchanged for
definitive certificated Debt Securities; and (25) any other special terms
pertaining to such Debt Securities. Unless otherwise specified in the applicable
Prospectus Supplement, the Debt Securities will not be listed on any securities
exchange. (Section 3.1 of the Indenture.)
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities will be issued only in fully registered, certificated form without
coupons or in the form of one or more Registered Global Securities as specified
below under "Global Debt Securities." (Section 2.1 of the Indenture.) Unless the
Prospectus Supplement relating thereto specifies otherwise, Debt Securities
denominated in U.S. dollars will be issued only in denominations of U.S. $1,000
and any integral multiple thereof. (Section 3.2 of the Indenture.)
If the amount of payments of principal of and premium, if any, or any
interest on Debt Securities of any series is determined with reference to any
type of index, or formula, or changes in prices of particular securities or
commodities, the
4
<PAGE>
federal income tax consequences, specific terms, and other information with
respect to such Debt Securities and such index or formula and securities or
commodities will be described in the applicable Prospectus Supplement.
PAYMENT, REGISTRATION, TRANSFER AND EXCHANGE
Unless otherwise provided in the applicable Prospectus Supplement, payments
in respect of the Debt Securities will be made in the designated currency at the
office or agency of the Company maintained for that purpose as the Company may
designate from time to time, except that, at the option of the Company, interest
payments, if any, on Debt Securities in registered, certificated form may be
made (i) by checks mailed to the holders of Debt Securities entitled thereto at
their registered addresses or (ii) by wire transfer to an account maintained by
the person entitled thereto as specified in the register. (Section 3.7(a) and
9.2 of the Indenture.) Unless otherwise indicated in an applicable Prospectus
Supplement, payment of any installment of interest on Debt Securities in
registered form will be made to the person in whose name such Debt Security is
registered at the close of business on the regular record date for such
interest. (Section 3.7(a) of the Indenture.)
The Company may at any time designate additional paying agents or rescind
the designation of any paying agents, except that, if Debt Securities of a
series are issuable as Registered Securities, the Company will be required to
maintain at least one paying agent in each Place of Payment for such series.
(Section 9.2 of the Indenture.)
Unless otherwise provided in the applicable Prospectus Supplement, Debt
Securities in registered form will be transferable or exchangeable at the agency
of the Company maintained for such purpose as designated by the Company from
time to time. (Sections 3.5 and 9.2 of the Indenture.) Debt Securities may be
transferred or exchanged without any service charge, other than any tax or other
governmental charge imposed in connection therewith. (Section 3.5 of the
Indenture.)
GLOBAL DEBT SECURITIES
Unless otherwise provided in the applicable Prospectus Supplement, the Debt
Securities of a series may be issued in whole or in part in the form of one or
more fully registered global securities ("Registered Global Security") that will
be deposited with a depository ("Depository") or with a nominee for the
Depository identified in the applicable Prospectus Supplement. In such a case,
one or more Registered Global Securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate principal amount
of outstanding Debt Securities of the series to be represented by such
Registered Global Security or Securities. Unless and until it is exchanged in
whole or in part for Debt Securities in definitive certificated form, a
Registered Global Security may not be registered for transfer or exchange except
as a whole by the Depository for such Registered Global Security to a nominee of
such Depository or by a nominee of such Depository to such Depository or another
nominee of such Depository or by such Depository or any such nominee to a
successor Depository for such series or a nominee of such successor Depository
and except in the circumstances described in the applicable Prospectus
Supplement. (Section 3.5 of the Indenture.)
The specific terms of the depository arrangement with respect to any
portion of a series of Debt Securities to be represented by a Registered Global
Security will be described in the applicable Prospectus Supplement. The Company
expects that the following provisions will apply to depository arrangements.
Upon the issuance of any Registered Global Security, and the deposit of
such Registered Global Security with or on behalf of the Depository for such
Registered Global Security, the Depository will credit, on its book-entry
registration and transfer system, the respective principal amounts of the Debt
Securities represented by such Registered Global Security to the accounts of
institutions ("Participants") that have accounts with the Depository or its
nominee. The accounts to be credited will be designated by the underwriters or
agents engaging in the distribution of such Debt Securities or by the Company,
if such Debt Securities are offered and sold directly by the Company. Ownership
of beneficial interests in a Registered Global Security will be limited to
Participants or persons that may hold interest through Participants. Ownership
of beneficial interests by Participants in such Registered Global Security will
be shown on, and the transfer of such beneficial interests will be effected only
through, records maintained by the Depository for such Registered Global
Security or by its nominee. Ownership of beneficial interests in such Registered
Global Security by persons that hold through Participants will be shown on, and
the transfer of such beneficial interests within such Participants will be
effected only through, records maintained by such Participants. The laws of some
jurisdictions require that certain purchasers of securities take physical
delivery of such securities in certificated form. The foregoing limitations and
such laws may impair the ability to transfer beneficial interests in such
Registered Global Securities.
So long as the Depository for a Registered Global Security, or its nominee,
is the registered owner of such Registered Global Security, such Depository or
such nominee, as the case may be, will be considered the sole owner or holder of
the
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<PAGE>
Debt Securities represented by such Registered Global Security for all purposes
under the Indenture. Unless otherwise specified in the applicable Prospectus
Supplement and except as specified below, owners of beneficial interests in such
Registered Global Security will not be entitled to have Debt Securities of the
series represented by such Registered Global Security registered in their names,
will not receive or be entitled to receive physical delivery of Debt Securities
of such series in certificated form and will not be considered the holders
thereof for any purposes under the Indenture. (Section 3.8 of the Indenture.)
Accordingly, each person owning a beneficial interest in such Registered Global
Security must rely on the procedures of the Depository and, if such person is
not a Participant, on the procedures of the Participant through which such
person owns its interest, to exercise any rights of a holder under the
Indenture. The Depository may grant proxies and otherwise authorize Participants
to give or take any request, demand, authorization, direction, notice, consent,
waiver, or other action which a holder is entitled to give or take under the
Indenture. The Company understands that, under existing industry practices, if
the Company requests any action of holders or any owner of a beneficial interest
in such Registered Global Security desires to give any notice or take any action
a holder is entitled to give or take under the Indenture, the Depository would
authorize the Participants to give such notice or take such action, and
Participants would authorize beneficial owners owning through such Participants
to give such notice or take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
Unless otherwise specified in the applicable Prospectus Supplement,
payments with respect to principal of, and premium, if any, and interest, if
any, on Debt Securities represented by a Registered Global Security registered
in the name of a Depository or its nominee will be made by the Company through a
paying agent to such Depository or its nominee, as the case may be, as the
registered owner of such Registered Global Security.
The Company expects that the Depository for any Debt Securities represented
by a Registered Global Security, upon receipt of any payment of principal,
premium or interest, will immediately credit Participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Registered Global Security as shown on the records
of such Depository. The Company also expects that payments by Participants to
owners of beneficial interests in such Registered Global Security held through
such Participants will be governed by standing instructions and customary
practices, as is now the case with the securities held for the accounts of
customers registered in "street names," and will be the responsibility of such
Participants. None of the Company, the Trustee, or any agent of the Company or
the Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial interests of a
Registered Global Security, or for maintaining, supervising, or reviewing any
records relating to such beneficial interests. (Section 3.8 of the Indenture.)
Unless otherwise specified in the applicable Prospectus Supplement, if the
Depository for any Debt Securities represented by a Registered Global Security
is at any time unwilling or unable to continue as Depository and a successor
Depository is not appointed by the Company within 90 days, the Company will
issue such Debt Securities in definitive certificated form in exchange for such
Registered Global Security. In addition, the Company may, at any time and in its
sole discretion, determine not to have any of the Debt Securities of a series
represented by one or more Registered Global Securities and, in such event, will
issue Debt Securities of such series in definitive certificated form in exchange
for all of the Registered Global Security or Securities representing such Debt
Securities. (Section 3.5 of the Indenture.) Debentures so issued in definitive
certificated form will be issued in denominations of $1,000 and integral
multiples thereof and will be issued in registered form only, without coupons.
CERTAIN DEFINITIONS
"Attributable Debt" means, as to a lease under which any Person is at the
time liable that is required to be classified and accounted for as a Capitalized
Lease Obligation on a Person's balance sheet under GAAP, at any date as of which
the amount thereof is to be determined, the total net amount of rent required to
be paid by such Person under such lease during the remaining primary term
thereof, discounted from the respective due dates thereof to such date at the
rate per annum equal to the interest rate implicit in such lease. The net amount
of rent required to be paid under any such lease for such period shall be the
aggregate amount of rent payable by lessee with respect to such period after
excluding amounts required to be paid on account of maintenance and repairs,
insurance, taxes, assessments, water rates, and similar expenses, or any amount
required to be paid by such lessee thereunder contingent upon the amount of
revenues (or other similar contingent amounts). In the case of any lease which
is terminable by the lessee upon the payment of a penalty, such net amount shall
also include the amount of such penalty, but no rent shall be considered as
required to be paid under such lease subsequent to the first date upon which it
may be so terminated. Notwithstanding the foregoing, the term Attributable Debt
excludes any amounts in respect of any Sale and Leaseback Transaction which the
Company or a Subsidiary is permitted to enter into in accordance
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with the provisions described in the second and third sentences under the
caption "Limitation on Sale and Leaseback Transactions."
"Capitalized Lease Obligation" means, as applied to any Person, the rental
obligation, as aforesaid, under any lease of any Property (whether real,
personal, or mixed) the discounted present value of the rental obligations of
such Person as lessee under which, in conformity with GAAP, is required to be
capitalized on the balance sheet of that Person.
"Consolidated Net Tangible Assets" means, with respect to the Company as of
any date, the total assets of the Company as they appear on the most recently
prepared consolidated balance sheet of the Company as of the end of a fiscal
quarter, less (i) all liabilities shown on such consolidated balance sheet that
are classified and accounted for as current liabilities or that otherwise would
be considered current liabilities under GAAP; and (ii) all assets shown on such
consolidated balance sheet that are classified and accounted for as intangible
assets of the Company or that otherwise would be considered intangible assets
under GAAP, including, without limitation, franchises, licenses, patents and
patent applications, trademarks, brand names, and goodwill.
"Funded Debt" means all indebtedness for borrowed money owed or guaranteed
by the Company or any of its Subsidiaries and any other indebtedness which,
under GAAP, would appear as indebtedness on the most recent consolidated balance
sheet of the Company, which matures by its terms more than 12 months from the
date of such consolidated balance sheet or which matures by its terms in less
than 12 months but by its terms is renewable or extendible beyond 12 months from
the date of such consolidated balance sheet at the option of the borrower.
"GAAP" means generally accepted accounting principles in the United States
in effect on the date of application thereof.
"Government Obligations" means securities which are (i) direct obligations
of the United States for the payment of which its full faith and credit is
pledged or (ii) obligations of a Person controlled or supervised by, and acting
as an agency or instrumentality, of the United States the full and timely
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company subject to federal or state
supervision or examination with a combined capital and surplus of at least
$50,000,000 as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the Government
Obligation evidenced by such depository receipt.
"Lien" means any mortgage, pledge, lien, charge, security interest, trust
arrangement, conditional sale, or other title retention agreement, or other
encumbrance of any nature whatsoever.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible, or intangible.
"Sale and Leaseback Transaction" means any direct or indirect arrangement
with any Person or to which any such Person is a party, providing for the
leasing to the Company or a Subsidiary of any Property, whether owned at the
date of the Indenture or thereafter acquired, which has been or is to be sold or
transferred by the Company or such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such Property.
"Secured Debt" means any indebtedness for borrowed money incurred, assumed,
or guaranteed after the date of the Indenture by the Company or a Subsidiary
that is secured by a Lien.
"Subsidiary" of any Person means any Person of which at least a majority of
capital stock having ordinary voting power for the election of directors or
other governing body of such Person is owned, directly or indirectly, by such
Person directly or through one or more Subsidiaries of such Person.
CERTAIN COVENANTS
LIMITATION ON LIENS. The Company will not, and will not permit any
Subsidiary to, incur, assume, or guarantee any indebtedness for borrowed money
secured by a Lien on any Property, if the sum, without duplication, of (a) the
aggregate
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principal amount of all Secured Debt and (b) all Attributable Debt in respect of
Sale and Leaseback Transactions (other than certain excluded Sale and Leaseback
Transactions) exceeds 15% of the Company's Consolidated Net Tangible Assets,
unless the Company provides that the Debt Securities shall be secured equally
and ratably with (or, at the option of the Company, prior to) such Secured Debt.
The provisions described in the foregoing sentence do not apply to, and there
shall be excluded in computing the aggregate amount of Secured Debt for purpose
of such restriction, indebtedness secured by the following Liens:
(i) (A) Liens existing as of the date of the Indenture or (B) Liens
relating to a contract that was entered into by the Company or any Subsidiary
prior to the date of the Indenture;
(ii) Liens on any Property existing at the time of acquisition thereof
(whether such acquisition is direct or by acquisition of stock, assets, or
otherwise) by the Company or any of its Subsidiaries, provided that, no such
Lien extends or shall extend to or cover any Property other than the Property
being acquired and fixed improvements then or thereafter erected thereon;
(iii) Liens upon or with respect to any Property (including any contract
rights relating thereto) acquired, constructed, refurbished, or improved by the
Company or any of its Subsidiaries (including, but not limited to, Liens to
secure all or any part of the cost of construction, alteration, or repair of any
building, equipment, facility or other improvement on, all or any part of such
property, including any pipeline financing) after the date of the Indenture
which are created, incurred or assumed contemporaneously with, or within 360
days after, the latest to occur of the acquisition (whether by acquisition of
stock, assets or otherwise), completion of construction, refurbishment, or
improvement, or the commencement of commercial operation, of such Property (or,
in the case of Liens on contract rights, the completion of construction, or the
commencement of commercial operation of the facility to which such contract
rights relate, regardless of the date when such contract was entered into) to
secure or provide for the payment of any part of the purchase price of such
Property or the cost of such construction, refurbishment, or improvement;
provided, however, that in the case of any such acquisition, construction,
refurbishment, or improvement, the Lien shall relate only to indebtedness
reasonably incurred to finance such acquisition, construction, refurbishment, or
improvement and shall not extend to cover any other Property other than fixed
improvements then or thereafter existing thereon;
(iv) Liens securing indebtedness owing by any Subsidiary to the Company or
to any other Subsidiary;
(v) Liens in connection with the sale or other transfer in the ordinary
course of business of (A) crude oil, natural gas, other petroleum hydrocarbons,
or other minerals in place for a period of time until, or in an amount such
that, the purchaser or other transferee will realize therefrom a specified
amount of money (however determined) or a specified amount of such minerals, or
(B) any other interest in property of the character commonly referred to as a
"production payment";
(vi) Liens on current assets to secure any indebtedness maturing (including
any extensions or renewals thereof) not more than one year from the date of the
creation of such Lien; and
(vii) Liens for the sole purpose of extending, renewing, or replacing in
whole or in part the indebtedness secured thereby referred to in the foregoing
clauses (i) to (vi), inclusive, or in this clause (vii); PROVIDED, HOWEVER, that
the Liens excluded pursuant to this clause (vii) shall be excluded only in an
amount not to exceed the principal amount of indebtedness so secured at the time
of such extension, renewal, or replacement, and that such extension, renewal, or
replacement shall be limited to all or part of the Property subject to the lien
so extended, renewed, or replaced (plus refurbishment of, or improvements on or
to, such Property).
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS. Neither the Company nor any
of its Subsidiaries may enter into, assume, guarantee, or otherwise become
liable with respect to any Sale and Leaseback Transaction involving any
Property, if the latest to occur of the acquisition, the completion of
construction, or the commencement of commercial operation of such Property shall
have occurred more than 180 days prior thereto, unless after giving effect
thereto the sum, without duplication, of (a) the aggregate principal amount of
all Secured Debt (excluding indebtedness secured by the Liens described in
clauses (i) through (vii) under "Limitations on Liens" above) and (b) all
Attributable Debt in respect of Sale and Leaseback Transactions does not exceed
15% of the Company's Consolidated Net Tangible Assets. This restriction shall
not apply to any Sale and Leaseback Transaction if, within 180 days from the
effective date of such Sale and Leaseback Transaction, the Company or such
Subsidiary applies an amount not less than the greater of (i) the net proceeds
of the sale of such Property leased pursuant to such arrangement or (ii) the
fair value of such Property to retire its Funded Debt, including, for this
purpose, any currently maturing portion of such Funded Debt, or to purchase
other property having a fair value at least equal to the fair value of the
Property leased in such Sale and Leaseback Transaction. This restriction also
does not apply to any Sale and Leaseback Transaction (A) between the Company and
any Subsidiary or between any Subsidiaries, (B) entered into prior to
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the date of the Indenture, or (C) for which, at the time the transaction is
entered into, the term of the related lease to the Company or such Subsidiary of
the Property sold pursuant to such transaction is three years or less.
CONSOLIDATION, MERGER OR SALE BY THE COMPANY
The Company shall not consolidate or merge with or into, or transfer or
lease all or substantially all of its assets to, any Person unless (i) the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or which acquires the Company's assets, is organized and existing
under the laws of the United States, any state thereof, or the District of
Columbia, (ii) the Person formed by or surviving any such consolidation or
merger (if other than the Company), or which acquires the Company's assets,
expressly assumes by supplemental indenture all of the obligations of the
Company under the Debt Securities and the Indenture, and (iii) immediately after
giving effect to the transaction, no Default or Event of Default shall have
occurred and be continuing. Upon any such consolidation, merger, or sale, the
successor Person formed by such consolidation, or into which the Company is
merged, or to which such sale is made, shall succeed to, and be substituted for,
the Company under the Indenture. (Section 7.1 of the Indenture.)
The Indenture contains no covenants or other specific provisions to afford
protection to holders of the Debt Securities in the event of a highly leveraged
transaction or a change in control of the Company, except to the limited extent
described above.
EVENTS OF DEFAULT, NOTICE AND CERTAIN RIGHTS ON DEFAULT
The Indenture provides that, if an Event of Default specified therein
occurs with respect to the Debt Securities of any series and is continuing, the
Trustee for such series or the holders of at least 33 1/3% in aggregate
principal amount of all of the outstanding Debt Securities of that series, by
written notice to the Company (and to the Trustee for such series, if notice is
given by such holders of Debt Securities), may declare the principal of (or, if
the Debt Securities of that series are Original Issue Discount Securities (as
defined in the Indenture), such portion of the principal amount specified in the
Prospectus Supplement) and accrued interest on all the Debt Securities of that
series to be immediately due and payable. (Section 5.2 of the Indenture.) At any
time after such a declaration and before a judgment or decree for payment for
money due has been obtained by the Trustee, the holders of a majority in
aggregate principal amount of such securities may rescind and annul such
declaration and its consequences, subject to certain limitations.
Events of Default with respect to Debt Securities of any series are defined
in the Indenture as being: (a) default for 30 days in payment of any interest on
any Debt Security of that series or any additional amount payable with respect
to Debt Securities of such series as specified in the applicable Prospectus
Supplement when due; (b) default in payment of principal, or premium, if any, at
maturity or on redemption or otherwise, or in the making of a mandatory sinking
fund payment of any Debt Securities of that series when and as due; (c) default
for 90 days after notice to the Company by the Trustee for such series, or by
the holders of 33 1/3% in aggregate principal amount of the Debt Securities of
such series then outstanding, in any material respect in the performance of any
other agreement in the Debt Securities of that series, in the Indenture (or in
any supplemental indenture or board resolution referred to therein) under which
the Debt Securities of that series may have been issued; (d) default
constitutuing failure to pay any portion of the principal of, premium, if any,
or interest on, or resulting in acceleration of, other indebtedness (in a
principal amount outstanding of $20,000,000 or more) for money borrowed of the
Company where such default under such other indebtedness is not cured or
remedied, and any acceleration is not rescinded or annulled within 30 days after
the written notice thereof to the Company by the Trustee or to the Company and
the Trustee by the holders of 33 1/3% in aggregate principal amount of the Debt
Securities of such series then outstanding; PROVIDED that, such Event of Default
will be cured or waived if (i) the payment default or default that resulted in
any acceleration of such other indebtedness for money borrowed is cured or
waived and (ii) any acceleration is rescinded or annulled; and (e) certain
events of bankruptcy, insolvency or reorganization of the Company. (Section 5.1
of the Indenture.) Events of Default with respect to a specified series of Debt
Securities may be added to the Indenture and, if so added, will be described in
the applicable Prospectus Supplement. (Sections 3.1 and 5.1(7) of the
Indenture.) No Event of Default with respect to any series of Debt Securities
necessarily constitutes an Event of Default with respect to the Debt Securities
of any other series issued under the Indenture.
The Indenture provides that the Trustee will, subject to certain
exceptions, within 90 days after the occurrence of a Default known to it with
respect to the Debt Securities of any series, give to the holders of the Debt
Securities of that series notice of all such Defaults unless such Default shall
have been cured or waived. "Default" means any event which is, or after notice
or passage of time or both, would be, an Event of Default. (Section 1.1 of the
Indenture.)
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The Indenture provides (subject to certain limitations) that the holders of
a majority in aggregate principal amount of the outstanding Debt Securities of
each series affected (with each such series voting as a class) may direct the
time, method, and place of conducting any proceeding for any remedy available to
the Trustee for such series, or exercising any trust or power conferred on such
Trustee. (Section 5.8 of the Indenture.)
The Indenture includes a covenant that the Company will file annually with
the Trustee a certificate as to the Company's compliance with all conditions and
covenants of the Indenture. (Section 9.7 of the Indenture.)
The holders of a majority in aggregate principal amount of the outstanding
Debt Securities of any series by notice to the Trustee may waive, on behalf of
the holders of all Debt Securities of such series, any past Default or Event of
Default with respect to that series and its consequences except (i) a Default or
Event of Default in the payment of the principal of, premium, if any, or
interest, if any, on any Debt Security, or (ii) a covenant or provision of the
Indenture that cannot be modified or amended without the consent of each holder
of a Debt Security of such series. (Section 5.7 of the Indenture.)
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee to
enter into one or more supplemental indentures without the consent of the
holders of any of the Debt Securities in order: (i) to evidence the succession
of another Person to the Company and the assumption of the covenants of the
Company in the Indenture and in the Debt Securities by a successor to the
Company; (ii) to add to the covenants of the Company or surrender any right or
power of the Company; (iii) to add additional Events of Default with respect to
all or any series of Debt Securities; (iv) to add or change any provisions to
such extent as necessary to permit or facilitate the issuance of Debt Securities
in bearer form or in global form; (v) to change or eliminate any provision
affecting Debt Securities not yet issued; (vi) to secure the Debt Securities;
(vii) to establish the form or terms of Debt Securities; (viii) to evidence and
provide for successor Trustees; (ix) if allowed without penalty under applicable
laws and regulations, to permit payment in respect of Debt Securities in bearer
form in the United States; (x) to correct or supplement any inconsistent
provisions or to make any other provisions with respect to matters or questions
arising under the Indenture; provided that such action does not adversely affect
the interests of any holder of Debt Securities of any series; or (xi) to cure
any ambiguity or correct any mistake, provided that such action does not
adversely affect the interests of any holder of Debt Securities of any series.
(Section 8.1 of the Indenture.)
The Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the holders of a majority in aggregate principal
amount of the outstanding Debt Securities adversely affected by such
supplemental indenture (with the Debt Securities of all series voting as one
class), to execute supplemental indentures adding any provisions to or changing
or eliminating any of the provisions of the Indenture or any supplemental
indenture or modifying the rights of the holders of Debt Securities of such
series; PROVIDED, HOWEVER, that no such supplemental indenture may, without the
consent of the holder of each Debt Security so affected: (i) change the time for
payment of principal or premium, if any, or interest on any Debt Security; (ii)
reduce the principal of, or any installment of principal of, or premium, if any,
or the rate of interest on any Debt Security, or change the manner in which the
amount of any of the foregoing is determined; (iii) reduce the amount of
premium, if any, payable upon the redemption of any Debt Security; (iv) reduce
the amount of principal payable upon acceleration of the maturity of any
Original Issue Discount Security; (v) change the currency in which any Debt
Security or any premium or interest thereon is payable; (vi) change the index,
securities or commodities with reference to which or the formula by which the
amount of principal or any premium or interest thereon is determined; (vii)
impair the right to institute suit for the enforcement of any payment on or
after the maturity or redemption of any Debt Security; (viii) reduce the
percentage in principal amount of the outstanding Debt Securities affected
thereby the consent of whose holders is required for modification or amendment
of the Indenture or for waiver of compliance with certain provisions of the
Indenture or for waiver of certain defaults; (ix) change the obligation of the
Company to maintain an office or agency in the places and for the purposes
specified in the Indenture; or (x) modify the provisions relating to waiver of
certain defaults or any of the foregoing provisions except to increase any
percentage or to provide that certain other provisions of the Indenture cannot
be modified or waived without the consent of holders of each outstanding Debt
Security affected thereby. (Section 8.2 of the Indenture.)
DEFEASANCE
DEFEASANCE AND DISCHARGE. Unless the Prospectus Supplement relating to the
Debt Securities of a series provides otherwise, the Company, at its option, will
be deemed to have paid and will be discharged from any and all obligations in
respect of such Debt Securities (except for, among other matters, certain
obligations to register the transfer or exchange of the Debt Securities, to
replace stolen, lost, or mutilated Debt Securities, to maintain paying agencies,
and to hold certain monies for payment in trust) if, among other things, (a) the
Company has irrevocably deposited with the Trustee, in trust, Government
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Obligations that through the payment of interest and principal in respect
thereof in accordance with their terms will provide money or a combination of
money and Government Obligations in an amount sufficient to pay in the currency
in which such Debt Securities are payable all the principal of, and interest on,
such Debt Securities on the dates such payments are due in accordance with the
terms of such Debt Securities; (b) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel to the effect that the holders
of such Debt Securities will not recognize income, gain or loss for U S. federal
income tax purposes as a result of the Company's exercise of its option under
this "Defeasance and Discharge" provision and will be subject to U.S. federal
income tax on the same amounts in the same manner and at the same times as would
have been the case if such deposit, defeasance, and discharge had not occurred,
and which Opinion of Counsel must be based upon (x) a ruling of the U.S.
Internal Revenue Service to the same effect or (y) a change in applicable U.S.
federal income tax law after the date of the Indenture such that a ruling is no
longer required; (c) no Default or Event of Default shall have occurred or be
continuing, and such deposit shall not result in a breach or violation of, or
constitute a default under, any other material agreement or instrument to which
the Company is a party or by which the Company is bound; and (d) the Company has
delivered to the trustee an Opinion of Counsel to the effect that the trust
resulting from the deposit referred to in clause (a) does not constitute an
investment company under the Investment Company Act of 1940. The Prospectus
Supplement will more fully describe the provisions relating to such discharge or
termination of obligations. (Sections 4.3 and 4.6 of the Indenture.)
DEFEASANCE OF CERTAIN COVENANTS. Unless the Prospectus Supplement relating
to the Debt Securities of a series provides otherwise, the Company, at its
option, need not comply with certain restrictive covenants of the Indenture
(including those described above under "Certain Covenants") upon, among other
things, the irrevocable deposit with the Trustee, in trust, of money and/or
Government Obligations that through the payment of interest and principal in
respect thereof in accordance with their terms will provide money or a
combination of money and Government Obligations in an amount sufficient to pay
in the currency in which such Debt Securities are payable all the principal of,
and interest on, such Debt Securities on the dates such payments are due in
accordance with the terms of such Debt Securities, the satisfaction of the
provisions described in clauses (c) and (d) of the preceding paragraph and the
delivery by the Company to the Trustee of an Opinion of Counsel to the effect
that, among other things, the holders of such Debt Securities will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of such
deposit and defeasance of certain covenants and will be subject to U.S. federal
income tax on the same amounts and in the same manner and at the same times as
would have been the case if such deposit and defeasance had not occurred.
(Sections 4.5 and 4.6 of the Indenture.)
THE TRUSTEE
First Union National Bank of North Carolina is the Trustee under the
Indenture. The Company also maintains banking and other commercial relationships
with the Trustee and its affiliates in the ordinary course of business.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by and construed in
accordance with the laws of the State of New York.
PLAN OF DISTRIBUTION
The Company may, from time to time, sell Debt Securities (i) through
underwriters, dealers, or agents, including Morgan Stanley & Co. Incorporated,
(ii) directly in each case to the public, institutional investors and other
purchasers, or (iii) through a combination of any such methods. A Prospectus
Supplement will set forth the terms of the offering of the Debt Securities
offered thereby, including the name or names of any underwriters, dealers or
agents, the purchase price of the Debt Securities, the proceeds to the Company
from the sale, any underwriting discounts and other items constituting
underwriters compensation, any initial public offering price, any discounts or
concessions allowed or reallowed or paid to dealers, and any securities exchange
or market on which the Debt Securities may be listed. Only underwriters so named
in such Prospectus Supplement are deemed to be underwriters in connection with
the Debt Securities offered thereby.
If underwriters are used in the sale, the Debt Securities will be acquired
by the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price, or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the Debt Securities will be subject
to certain conditions precedent, and the underwriters will be obligated to
purchase all the Debt Securities of the series offered by the Prospectus
Supplement if any of the Debt Securities are purchased. Any initial public
offering price and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time.
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If dealers are used in the sale, unless otherwise indicated in the
Prospectus Supplement relating to the Debt Securities of any series, the Company
will sell the Debt Securities of such series to such dealers as principal. Such
dealers may then resell the Debt Securities of such series to the public at
varying prices to be determined by such dealers at the time of resale.
Debt Securities may also be sold directly, by the Company or through agents
designated by the Company from time to time. Any agent involved in the offering
and sale of Debt Securities in respect of which this Prospectus is delivered
will be named, and any commissions payable by the Company to such agent will be
set forth, in the Prospectus Supplement. Unless otherwise indicated in the
related Prospectus Supplement, any such agent will be acting on a best-efforts
basis for the period of its appointment.
Debt Securities offered may be a new issue of securities with no
established trading market. Any underwriters to whom such Debt Securities are
sold by the Company for public offering and sale may make a market in such Debt
Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of or the trading markets for any such Debt
Securities.
Agents, underwriters, and dealers may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments which the agents or underwriters may be required to
make in respect thereof. Agents, underwriters, and dealers may be customers of,
engage in transactions with, or perform services for, the Company in the
ordinary course of business.
LEGAL MATTERS
The validity of the issuance of the Debt Securities offered hereby will be
passed upon for the Company by Fennebresque, Clark, Swindell & Hay, Charlotte,
North Carolina, counsel to the Company and J. Paul Douglas, Esq., Vice
President -- Corporate Counsel and Secretary. Certain legal matters will be
passed upon on behalf of any underwriters, dealers or agents by Winthrop,
Stimson, Putnam & Roberts, New York, New York.
EXPERTS
The consolidated financial statements and schedules incorporated by
reference in this Prospectus and elsewhere in the Registration Statement, to the
extent and for the periods indicated in their reports to opinion, have been
audited by Arthur Andersen LLP, independent public accountants, and are included
herein in reliance upon the authority of said firm as experts in giving such
reports.
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses payable by the Company in connection with the
issuance and distribution of the securities being offered hereby are:
<TABLE>
<S> <C>
Registration Fee.......................................................................... $ 43,103
Fees and Expenses of Indenture Trustee.................................................... 11,000
Printing.................................................................................. 60,000
Legal Fees and Expenses................................................................... 125,000
Rating Agency Fees and Expenses........................................................... 113,250
Accounting Fees and Expenses.............................................................. 75,000
Blue Sky Fees and Expenses................................................................ 7,500
North Carolina Utilities Commission....................................................... 500
Miscellaneous............................................................................. 4,647
Total................................................................................ $440,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The By-Laws of the Company contain provisions that require the Company to
indemnify current or former directors or officers to the fullest extent allowed
by law. Sections 55-8-50 through 55-8-58 of the North Carolina Business
Corporation Act provide for the indemnification of officers and directors under
certain circumstances against expenses incurred in successfully defending
against a claim and authorize North Carolina corporations to indemnify their
officers and directors under certain circumstances against expenses and
liabilities incurred in legal proceedings involving such persons because of
their being or having been an officer or director.
The Company maintains insurance to protect itself and its directors and
officers against expense or loss arising from any action, suit or proceeding
brought by reason of the fact that any person is a director or officer of the
Company. The policy provides for the payment on behalf of its directors and
officers of losses that arise from claims against the directors and officers for
a wrongful act while acting in that capacity. The policy also provides for
payment of losses that the Company may be required or permitted to pay as
indemnity due the directors or officers for claims against them for wrongful
acts.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
<C> <S>
1 Form of Underwriting Agreement
4(a) Form of Indenture
4(b) Form of Supplemental Indenture
5 Opinion of Fennebresque, Clark, Swindell & Hay
12 Ratio of Earnings to Fixed Charges
23(a) Consent of Arthur Andersen, LLP
23(b) Consent of Fennebresque, Clark, Swindell & Hay (is contained in the opinion included as Exhibit 5)
24 Powers of Attorney (included in signature page)
25 Statement of Eligibility of Indenture Trustee Under Trust Indenture Act of 1939
</TABLE>
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
II-1
<PAGE>
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
PROVIDED, HOWEVER, that the undertakings set forth in paragraphs
(a)(1)(i) and (a)(1)(ii) above do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this registration statement.
2. That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the registrants of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Gastonia, and the state of North Carolina, on the
20th day of December, 1995.
PUBLIC SERVICE COMPANY OF
NORTH CAROLINA, INCORPORATED
By: /s/ Charles E. Zeigler, Jr.
CHARLES E. ZEIGLER, JR.
CHAIRMAN, PRESIDENT AND
CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Exchange Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
hereby appoints Charles E. Zeigler, Jr., Robert D. Voigt, Jack G. Mason and J.
Paul Douglas, and each of them singly, such person's true and lawful attorneys,
with full power to them and each of them to sign, for such person and in such
person's name and capacity indicated below, any and all amendments to this
registration statement, hereby ratifying and confiming such person's signature
as it may be signed by said attorney to any and all amendments.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Charles E. Zeigler, Jr. Chairman, President, Chief Executive December 20, 1995
CHARLES E. ZEIGLER, JR. Officer, and Director (Principal
Executive Officer)
/s/ Robert D. Voigt Senior Vice-President -- Corporate December 20, 1995
ROBERT D. VOIGT Development and Chief Financial Officer
(Principal Financial and Accounting
Officer)
/s/ William C. Burkhardt Director December 20, 1995
WILLIAM C. BURKHARDT
/s/ William A.V. Cecil Director December 20, 1995
WILLIAM A.V. CECIL
/s/ Bert Collins Director December 20, 1995
BERT COLLINS
/s/ H. Max Craig, Jr. Director December 20, 1995
H. MAX CRAIG, JR.
Director December 20, 1995
VAN E. EURE
/s/ B. Frank Matthews, II Director December 20, 1995
B. FRANK MATTHEWS, II
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ William L. O'Brien, Jr. Director December 20, 1995
WILLIAM L. O'BRIEN, JR.
/s/ Plato P. Pearson, Jr. Director December 20, 1995
PLATO P. PEARSON, JR.
/s/ G. Smedes York Director December 20, 1995
G. SMEDES YORK
/s/ Charles E. Zeigler, Sr. Director December 20, 1995
CHARLES E. ZEIGLER, SR.
</TABLE>
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
<C> <S>
1 Form of Underwriting Agreement
4(a) Form of Indenture
4(b) Form of Supplemental Indenture
5 Opinion of Fennebresque, Clark, Swindell & Hay
12 Ratio of Earnings to Fixed Charges
23(a) Consent of Arthur Andersen, LLP
23(b) Consent of Fennebresque, Clark, Swindell & Hay (is contained in the opinion included as
Exhibit 5)
24 Powers of Attorney (included in signature page)
25 Statement of Eligibility of Indenture Trustee Under Trust Indenture Act of 1939
</TABLE>
Exhibit 1
[Form of Underwriting Agreement]
DEBT SECURITIES
UNDERWRITING AGREEMENT
PUBLIC SERVICE COMPANY OF NORTH CAROLINA,
INCORPORATED
400 Cox Road, P.O. Box 1398
Gastonia, North Carolina 28053-1398
[ ] , 1996
Ladies and Gentlemen:
We (the "Representative") are acting on behalf of the
underwriter or underwriters (including ourselves) named in Schedule I (the
"Underwriters"), and we understand that Public Service Company of North
Carolina, Incorporated, a North Carolina corporation (the "Company"), proposes
to issue and sell to the Underwriters $[ ] aggregate principal amount of its [
]% [Type of Securities] due [ ] (the "Offered Securities"). The Offered
Securities will be issued pursuant to the provisions of the Indenture dated as
of [ ], [ ] between the Company and [First Union National Bank of
North Carolina], as trustee (the "Trustee"), as it will be supplemented by a
supplemental indenture relating to the Offered Securities (said Indenture, as so
supplemented, the "Indenture").
If Schedule I names one person, firm or corporation, the term
"Underwriters" and the term "Representative," as used in this agreement (this
"Agreement" or the "Underwriting Agreement"), shall mean that person, firm or
corporation. All obligations of the Underwriters are several and not joint. The
use of the term "Underwriter" herein shall not be deemed to establish or admit
that a purchaser of the Offered Securities is an "underwriter" of the Offered
Securities as such term is defined in and used under the Securities Act of 1933,
as amended (the "Securities Act").
1. Representations and Warranties. The Company
represents and warrants to and agrees with each of the Underwriters that:
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<PAGE>
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (Registration
Statement No. 33-[ ]), including a prospectus, relating to the Offered
Securities, and has filed with, or transmitted for filing to, or shall promptly
hereafter file with or transmit for filing to, the Commission a prospectus
supplement (the "Prospectus Supplement") specifically relating to the Offered
Securities pursuant to Rule 424 under the Securities Act. The term "Registration
Statement" means the registration statement, including the exhibits thereto, as
amended to the date of this Agreement. The term "Basic Prospectus" means the
prospectus included in the Registration Statement, as amended and supplemented
to the date of this Agreement (exclusive of any supplement to the prospectus
relating solely to securities other than the Offered Securities). The term
"Prospectus" means the Basic Prospectus together with the Prospectus Supplement.
The term "preliminary prospectus" means a preliminary prospectus supplement
specifically relating to the Offered Securities, together with the Basic
Prospectus. As used herein, the terms "Basic Prospectus," "Prospectus" and
"preliminary prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement", "amendment" and
"amend" as used herein shall include all documents deemed to be incorporated by
reference in the Prospectus that are filed subsequent to the date of the Basic
Prospectus by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(b) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(c) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder or pursuant to
said rules and regulations will be deemed to comply therewith; (ii) each part of
the Registration Statement, when such part became effective, did not contain,
and each such part, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; (iii) the Registration Statement, when it became effective, complied
and the Prospectus, when it is first filed with the Commission pursuant to Rule
424 and when it is amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder or pursuant to said rules and
regulations will be deemed to comply therewith; and (iv) the Prospectus does
not, and when it is first filed with the Commission pursuant to Rule 424 under
the Securities Act and, as amended or supplemented, if applicable, as of the
Closing Date, will not, contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this Section 1(c) do not apply (A)
to statements or omissions in the Registration Statement or the Prospectus based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter expressly for use therein or (B) to that part of the
Registration Statement that constitutes the Statement of Eligibility (Form T-l)
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
of the Trustee.
-2-
<PAGE>
(d) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of North
Carolina, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and to enter into and
perform its obligations under the Underwriting Agreement, the Indenture and the
Offered Securities. The Company is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
(e) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other laws affecting creditors' rights generally and by equitable principles of
general applicability (whether considered in a proceeding at law or in equity).
(g) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters in accordance with the terms
of the Underwriting Agreement, will be entitled to the benefits of the
Indenture, and will be valid and binding obligations of the Company, enforceable
in accordance with their terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other laws affecting creditors' rights generally and by equitable
principles of general applicability (whether considered in a proceeding at law
or in equity).
(h) This Agreement has been duly authorized, executed an
delivered by the Company.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting Agreement,
the Indenture and the Offered Securities will not contravene, conflict with,
result in a breach of or constitute a default under any provision of (A)
applicable law, (B) the amended and restated charter or the by-laws of the
Company, (C) any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company or any of its subsidiaries is a party that is
material to the Company and its subsidiaries, taken as a whole or (D) any
judgment, order or decree of any governmental body, agency or court applicable
to the Company or any subsidiary.
-3-
<PAGE>
(j) The North Carolina Utilities Commission (the "NCUC") has
issued an appropriate order or orders with respect to the issuance and sale of
the Offered Securities in accordance with the Underwriting Agreement; such order
or orders are in full force and effect; the issuance and sale of the Offered
Securities are in conformity with the terms of such order or orders; and no
other authorization, approval or consent of any other governmental body or
agency is legally required for the issuance and sale of the Offered Securities
as contemplated by the Underwriting Agreement, except as may be required under
the state securities or Blue Sky laws in connection with the purchase and
distribution of the Offered Securities by the Underwriters.
(k) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus.
(l) All legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is subject
that are required to be described in the Registration Statement or the
Prospectus are so described, and all statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement or the
Prospectus, or to be filed or incorporated by reference as exhibits to the
Registration Statement, are described, filed or incorporated as required.
(m) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act") and is
not a "holding company," as such term is defined in the Public Utility Holding
Company Act of 1935, as amended ("PUHCA").
(n) The Company and its subsidiaries are (i) in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or water, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(o) In the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries, in the course of
which it identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review, the
Company has reasonably concluded that such
-4-
<PAGE>
associated costs and liabilities would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(p) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(q) Except as disclosed in Schedule III, as of the date
hereof, there are no Liens (as defined in the Indenture) on any property or
assets of the Company or its subsidiaries.
2. Public Offering. The Company is advised by the
Representative that the Underwriters propose to make a public offering of their
respective portions of the Offered Securities as soon after the Underwriting
Agreement has been entered into as in the Representative's judgment is
advisable. The terms of the public offering of the Offered Securities are set
forth in the Prospectus.
3. Purchase and Delivery. Subject to the terms and conditions
herein set forth, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the respective principal amounts of
Offered Securities set forth opposite the name of such Underwriter in Schedule I
hereto at the purchase price set forth in Schedule II in the type of funds and
method of payment specified in Schedule II.
Delivery of the Offered Securities and payment of the purchase
price shall be made at the time, date and place indicated in Schedule II. The
time and date of such payment and delivery are hereinafter referred to as the
Closing Date.
The Offered Securities shall be delivered to the Underwriters
in such authorized denominations and registered in such names as the
Representative shall request in writing not less than one full business day
prior to the date of delivery. The Company agrees to make the Offered Securities
available to the Underwriters for checking not later than 2:30 P.M., New York
time, on the last business day preceding the Closing Date at such place as may
be agreed upon between the Representative and the Company.
4. Conditions to Closing. The several obligations of
the Underwriters hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date,
(i) no downgrading shall have occurred and no notice
shall have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of a possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(ii) no change, and no development involving a prospective
change, shall have occurred in the condition, financial or otherwise,
or in the earnings, business or operations, of the Company and its
subsidiaries, taken as a whole, from that set forth in
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<PAGE>
the Prospectus, that, in the judgment of Morgan Stanley & Co.
Incorporated, is material and adverse and that makes it, in the
judgment of Morgan Stanley & Co. Incorporated, impracticable to market
the Offered Securities on the terms and in the manner contemplated in
the Prospectus; and
(iii) the Company shall have obtained an appropriate order
or orders of the NCUC authorizing the issuance, sale and delivery of
the Offered Securities as contemplated by this Agreement, which order
or orders at the Closing Date shall be in full force and effect and
shall not be contested or the subject of review or appeal.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of the
Company to the effect set forth in clause (a)(i) and (iii) above and that the
representations and warranties of the Company contained in this Agreement are
true and correct as of the Closing Date and that the Company has complied with
all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before the Closing Date.
(c) The Representative shall have received on the Closing Date
an opinion dated the Closing Date of Fennebresque, Clark, Swindell & Hay,
counsel to the Company, to the effect that
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of
the State of North Carolina, has the corporate power and authority to
own its property and to conduct its business as described in the
Prospectus and is duly qualified and in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(ii) this Agreement has been duly authorized,
executed and delivered by the Company;
(iii) the Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other laws affecting the enforcement of creditors' rights
generally and by general equitable principles (whether considered in a
proceeding at law or in equity);
(iv) the Offered Securities have been duly authorized
and, when executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company, in each case enforceable in accordance with
their respective terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other laws
affecting the enforcement of creditors' rights
-6-
<PAGE>
generally and by general equitable principles (whether considered in a
proceeding at law or in equity);
(v) the Underwriting Agreement has been duly
authorized, executed and delivered by the Company;
(vi) the execution and delivery by the Company of,
and the performance by the Company of its obligations under, the
Underwriting Agreement, the Indenture and the Offered Securities will
not contravene, conflict with, result in a breach of or constitute a
default under any provision of (A) applicable law (assuming compliance
with all applicable state securities or Blue Sky laws), (B) the amended
and restated charter or the by-laws of the Company, (C) to the best of
such counsel's knowledge after due inquiry, any indenture, mortgage,
deed of trust or other agreement or instrument to which the Company or
any of its subsidiaries is a party that is material to the Company and
its subsidiaries, taken as a whole or (D) to the best of such counsel's
knowledge after due inquiry, any judgment, order or decree of any
governmental body, agency or court applicable to the Company or any
subsidiary;
(vii) the NCUC has issued an appropriate order or
orders with respect to the issuance and sale of the Offered Securities
in accordance with the Underwriting Agreement; such order or orders are
in full force and effect and are sufficient to authorize such issuance
and sale as contemplated by the Agreement; the issuance and sale of the
Offered Securities are in conformity with the terms of such order or
orders; no challenge to or appeal of such order or orders after the
date of issuance of the Offered Securities can affect the validity of
the Offered Securities; and no other authorization, approval or consent
of any other governmental body or agency is legally required for the
issuance and sale of the Offered Securities as contemplated by the
Underwriting Agreement, except (A) as may be required under the state
securities or Blue Sky laws in connection with the purchase and
distribution of the Offered Securities by the Underwriters, (B)
registration of the Offered Securities under the Securities Act and (C)
as may be required by any securities exchange on which the Offered
Securities may be listed;
(viii) the statements in the Prospectus under the
captions "[Certain Terms of the Offered Securities]," "Description of
Debt Securities," "Underwriting" and "Plan of Distribution," in each
case insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, fairly present
the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters referred to
therein;
(ix) to the best of such counsel's knowledge after
due inquiry, such counsel does not know of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or incorporated
by reference as exhibits to the Registration Statement that are not
described, filed or incorporated as required;
-7-
<PAGE>
(x) the Company is not (A) an "investment company" or
an entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act or (B) a "holding company," as
such term is defined in PUHCA;
(xi) the Registration Statement has become and is
effective under the Securities Act, and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for a stop
order with respect thereto are pending or threatened under Section 8(d)
of the Securities Act; and
(xii) such counsel (A) is of the opinion that (except
for financial statements and schedules and other financial and
statistical data contained or incorporated by reference therein, as to
which such counsel need not express any opinion) each document, if any,
filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus complied when so filed as to form in all material respects
with the Exchange Act and the applicable rules and regulations of the
Commission thereunder, (B) believes that (except for financial
statements and schedules and other financial and statistical data
contained or incorporated by reference therein, as to which such
counsel need not express any belief and except for that part of the
Registration Statement that constitutes the Form T-l heretofore
referred to) each part of the Registration Statement, when such part
became effective did not, and, as of the date such opinion is
delivered, does not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (C) is of the
opinion that the Registration Statement, when it became effective, and
the Prospectus, when it was first filed with the Commission pursuant to
Rule 424 under the Securities Act (in each case, except for financial
statements and schedules and other financial and statistical data
included or incorporated by reference therein, as to which such counsel
need not express any opinion), complied as to form in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (D) believes that (except
for financial statements and schedules and other financial or
statistical data contained or incorporated by reference therein, as to
which such counsel need not express any belief) the Prospectus, when it
was first filed with the Commission pursuant to Rule 424 under the
Securities Act, did not and as of the date such opinion is delivered,
does not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
As to matters of New York law, Fennebresque, Clark, Swindell &
Hay may rely upon the opinion of even date herewith of Winthrop, Stimson, Putnam
& Roberts. For purposes of clause (A) of paragraph (vi), paragraph (vii) and
paragraph (ix), as to matters of North Carolina law relating to the regulation
of public utilities, Fennebresque, Clark, Swindell & Hay may rely upon the
opinion of even date herewith of J. Paul Douglas, Esq.
(d) The Representative shall have received on the Closing
Date an opinion dated the Closing Date of J. Paul Douglas, Esq.,
Vice-President--Corporate Counsel and Secretary of the Company,
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<PAGE>
(i) to the effect that each subsidiary of the Company has been
duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own its property and to conduct
its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole;
(ii) to the effect that to the best of such counsel's
knowledge after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or
any of its subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are required to
be described in the Registration Statement or the Prospectus and are
not so described;
(iii) to the effect that the statements (A) in the
Registration Statement under Item 15, (B) in "Item 3 - Legal
Proceedings" of the Company's most recent annual report on Form 10-K
incorporated by reference in the Prospectus and (C) in "Item 1 - Legal
Proceedings" of Part II of the Company's quarterly reports on Form 10-Q
filed since such annual report, in each case insofar as such statements
constitute summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called for with
respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein; and
(iv) covering the matters referred to in subparagraphs
(vi)(but only as to the matters referred to in clause (A) thereof),
(vii) and (ix).
(e) The Representative shall have received on the Closing Date
an opinion dated the Closing Date of Winthrop, Stimson, Putnam & Roberts,
counsel for the Underwriters, covering the matters referred to in subparagraphs
(iv), (v), (viii), (xi) and (xii) (but only as to the matters referred to in
clauses (B), (C) and (D) thereof) of paragraph (c) above.
As to matters of North Carolina law, Winthrop, Stimson, Putnam
& Roberts may rely upon the opinions of even date herewith of Fennebresque,
Clark, Swindell & Hay and J. Paul Douglas.
With respect to the subparagraph (xii) of paragraph (c) above,
Fennebresque, Clark, Swindell & Hay, counsel to the Company, may state that
their opinion and belief are based upon their participation in the preparation
of the Registration Statement and Prospectus and any amendments or supplements
thereto and review and discussion of the contents thereof (including the
documents incorporated by reference therein), but are without independent check
or verification, except as specified. With respect to clauses (B), (C) and (D)
of subparagraph (xii) of paragraph (c) above, Winthrop, Stimson, Putnam &
Roberts may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto (but not including documents
incorporated therein by reference) and review and discussion of the contents
thereof (including
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documents incorporated therein by reference) but are without independent check
or verification, except as specified.
The opinions of Fennebresque, Clark, Swindell & Hay, counsel
to the Company, described in paragraph (c) above and of J. Paul Douglas, Esq.,
Vice-President--Corporate Counsel and Secretary, described in paragraph (d)
above, shall be rendered to the Representative at the request of the Company and
shall so state therein.
(f) The Representative shall have received on the date of this
Agreement a letter, dated the date of this Agreement, in form and substance
satisfactory to the Representative, from Arthur Andersen LLP, the Company's
independent public accountants, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference into the Prospectus.
(g) The Representative shall have received on the Closing Date
a letter, dated the Closing Date, in form and substance satisfactory to the
Representative, from Arthur Andersen LLP, the Company's independent public
accountants, to the effect that such accountants reaffirm, as of the Closing
Date, and as though made on the Closing Date, the statements made in the letter
furnished by such accountants pursuant to Section 4(e), except that the
specified date referred to therein shall be a date not more than five business
days prior to the Closing Date.
(h) On the Closing Date, Standard & Poor's Ratings Group
and Moody's Investors Service, Inc. shall have publicly assigned to the Offere
Securities ratings of A- and A2, respectively, which ratings shall be in full
force and effect on the Closing Date.
(i) If the issuance of the Offered Securities shall constitute
the initial issuance of Securities (as defined in the Indenture) under the
Indenture, the Representative shall have received on the Closing Date
satisfactory evidence of the satisfaction and discharge of the Company's First
Mortgage dated [ ].
5. Covenants of the Company. In further consideration
of the agreements of the Underwriters herein contained, the Company covenants
as follows:
(a) To furnish the Representative, without charge, a signed
copy of the Registration Statement (including exhibits thereto) and to deliver
to each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and, during the period mentioned in paragraph (c)
below, as many copies of the Prospectus, any documents incorporated by reference
therein and any supplements and amendments thereto or to the Registration
Statement as the Underwriters may reasonably request.
(b) To cause the Prospectus to be filed with the Commission
pursuant to and in compliance with Rule 424 under the Act.
(c) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to the Representative a copy of each
such proposed amendment or
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supplement and not to file any such proposed amendment or supplement to which
the Representative reasonably objects.
(d) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in connection
with sales by an Underwriter or dealer, any event shall occur or condition exist
as a result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters, and to the dealers (whose
names and addresses the Representative will furnish to the Company) to which
Offered Securities may have been sold by the Representative on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus,
as amended or supplemented, will comply with law.
(e) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as the
Representative shall reasonably request and to maintain such qualification for
as long as the Representative shall reasonably request.
(f) To make generally available to the Company's security
holders and to the Representative as soon as practicable an earning statement
covering a twelve month period beginning on the first day of the first full
fiscal quarter after the date of the Underwriting Agreement, which earning
statement shall satisfy the provisions of Section 11(a) of the Securities Act
and the rules and regulations of the Commission thereunder. If such fiscal
quarter is the last fiscal quarter of the Company's fiscal year, such earning
statement shall be made available not later than 90 days after the close of the
period covered thereby and in all other cases shall be made available not later
than 45 days after the close of the period covered thereby.
(g) During the period beginning on the date of this Agreement
and continuing to and including the Closing Date, without the prior written
consent of Morgan Stanley & Co. Incorporated, not to (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any debt securities of
the Company or warrants to purchase debt securities of the Company substantially
similar to the Offered Securities or any securities convertible into or
exercisable or exchangeable therefor (other than (i) the Offered Securities,
(ii) commercial paper issued in the ordinary course of business and (iii) other
debt securities evidencing commercial bank loans) or (2) enter into any swap or
similar arrangement that transfers, in whole or part, the economic risk of
ownership of any of the foregoing, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of the Offered Securities
or such other securities, in cash or otherwise.
(h) Whether or not any sale of the Offered Securities is
consummated, to pay all expenses incident to the performance of its obligations
under the Underwriting Agreement, including: (i) the preparation and filing o
the Registration Statement and the Prospectus and all
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amendments and supplements thereto, (ii) the preparation, issuance and delivery
of the Offered Securities, (iii) the fees and disbursements of the Company's
counsel and accountants and of the Trustee and its counsel, (iv) the
qualification of the Offered Securities under securities or Blue Sky laws in
accordance with the provisions of Section 5(e), including filing fees and the
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of any Blue Sky Memoranda, (v) the
printing and delivery to the Underwriters in quantities as hereinabove stated of
copies of the Registration Statement and all amendments thereto and of the
Prospectus and any amendments or supplements thereto, (vi) any fees charged by
rating agencies for the rating of the Offered Securities, (vii) the fees and
expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc. and (viii) all document production
charges and expenses of counsel to the Underwriters (but not including their
fees for professional services) in connection with the preparation of this
Agreement.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with investigating or defending any such action
or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through the Representative expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through the
Representative expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any
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indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in respect of the
legal expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by the
Representative, in the case of parties indemnified pursuant to paragraph (a)
above, and by the Company, in the case of parties indemnified pursuant to
paragraph (b) above. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Offered Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate public offering
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price of the Offered Securities. The relative fault of the Company on the one
hand and of the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 6 are several in proportion
to the respective principal amounts of the Offered Securities they have
purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 6 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Offered
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 6 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
7. Termination. This Agreement shall be subject to
termination, by notice given by the Representative to the Company, if (a) after
the execution and delivery of the Underwriting Agreement and prior to the
Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the National Association of Securities Dealers, Inc.,
the Nasdaq National Market, the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of Morgan Stanley & Co. Incorporated, is material and
adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event, singly or together with any other such event, makes
it, in the judgment of Morgan Stanley & Co. Incorporated, impracticable to
market the Offered Securities on the terms and in the manner contemplated in the
Prospectus. This Agreement may also be terminated at any time prior to the
Closing Date if in the judgment of Morgan Stanley & Co. the subject matter of
any amendment or supplement to the Registration Statement or Prospectus prepared
and furnished by the Company reflects a material adverse change in the business,
properties or financial condition of the Company which
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<PAGE>
renders it either inadvisable to proceed with such offering, if any, or
inadvisable to proceed with the delivery of the Offered Securities to be
purchased hereunder.
8. Defaulting Underwriters. If, on the Closing Date, any one
or more of the Underwriters shall fail or refuse to purchase the Offered
Securities that it has or they have agreed to purchase hereunder on such date,
and the aggregate amount of Offered Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate amount of the Offered Securities to be purchased on
such date, the other Underwriters shall be obligated severally in the
proportions that the amount of Offered Securities set forth opposite their
respective names in the Underwriting Agreement bears to the aggregate amount of
the Offered Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representative may specify, to
purchase the Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the amount of the Offered Securities that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 8 by an amount in excess of one-ninth of such amount of the Offered
Securities without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase the
Offered Securities that it has or they have agreed to purchase and the aggregate
amount of the Offered Securities with respect to which such default occurs is
more than one-tenth of the aggregate amount of the Offered Securities to be
purchased on such date, and arrangements satisfactory to the Representative and
the Company for the purchase of such Offered Securities are not made within 36
hours after such default, the Underwriting Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either the Representative or the Company shall have the right to
postpone the Closing Date but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under the Underwriting
Agreement.
If the Underwriting Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or refusal on the part of
the Company to comply with the terms or to fulfill any of the conditions of the
Underwriting Agreement, or if for any reason the Company shall be unable to
perform its obligations under the Underwriting Agreement, the Company will
reimburse the Underwriters or such Underwriters as have so terminated the
Underwriting Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with the Underwriting
Agreement or the offering of the Offered Securities.
9. Representations and Indemnities to Survive. The respective
indemnity and contribution agreements and the representations, warranties and
other statements of the Company, its officers and the Underwriters set forth in
the Underwriting Agreement will remain in full force and effect, regardless of
any termination of the Underwriting Agreement, any investigation made by or on
behalf of any Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 6 and delivery of and payment for the
Offered Securities.
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10. Successors. This Agreement will enure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 6, and no
other person will have any right or obligation hereunder.
11. Counterparts. The Underwriting Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
12. Applicable Law. The Underwriting Agreement shall be
governed by and construed in accordance with the internal laws of the State of
New York.
13. Headings. The headings of the sections of the
Underwriting Agreement have been inserted for convenience of reference only and
shall not be deemed a part of the Underwriting Agreement.
14. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered or telecopied and
confirmed to Morgan Stanley & Co. Incorporated at 1585 Broadway, 2nd Floor,
New York, New York 10036, Attn: Managing Director - Debt Syndicate, Telecopy No:
(212) 761-0783, or, if sent to the Company, will be mailed, delivered or
telecopied and confirmed to it at 400 Cox Road, P.O. Box 1398, Gastonia, North
Carolina, Attn: Mr. Jack G. Mason, Treasurer, Telecopy No: (704) 834-6538.
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Please confirm your agreement by having an authorized officer
sign a copy of the Underwriting Agreement in the space set forth below.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
Acting severally on behalf of itself
and the several Underwriters named
herein
By: _______________________________
Name:
Title:
Accepted, [ ], [ ]
PUBLIC SERVICE COMPANY OF NORTH CAROLINA,
INCORPORATED
By: _______________________________
Name:
Title:
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Schedule I
Principal Amount
Name of Underwriter of Offered Securities
Morgan Stanley & Co. Incorporated. . . . . . . . . . . . . . .$
Total...........$
<PAGE>
Schedule II
Underwriting Agreement dated [ ], [ ]
Registration Statement No. 33-[ ]
Representative and Address:
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Securities:
Designation: [ ]% [Type of Securities] due [ ]
Principal Amount: [ ]
Supplemental Indenture
dated as of: [ ]
Date of Maturity: [ ]
Interest Rate: [ ]%
Purchase Price: [ ]%
Public Offering Price: [ ]%
Type of Funds/Method
of Payment:
Closing Date
and Location: [ ]
<PAGE>
Schedule III
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Exhibit 4(a)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
[FORM OF INDENTURE]
PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED
and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA, as Trustee
INDENTURE
Dated as of [ ], [ ]
Providing for Issuance of
Debt Securities in Series
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
1.1. Definitions........................................................ 1
1.2. Compliance Certificates and Opinions............................... 9
1.3. Form of Documents Delivered to Trustee............................. 9
1.4. Acts of Holders................................................... 10
1.5. Notices, etc., to Trustee and Company............................. 11
1.6. Notice to Holders; Waiver......................................... 11
1.7. Headings and Table of Contents.................................... 12
1.8. Successors and Assigns............................................ 12
1.9. Separability...................................................... 12
1.10. Benefits of Indenture............................................ 12
1.11. Governing Law.................................................... 13
1.12. Legal Holidays................................................... 13
ARTICLE 2
SECURITY FORMS
2.1. Forms Generally................................................... 13
2.2. Form of Trustee's Certificate of Authentication................... 14
2.3. Securities in Global Form......................................... 14
2.4. Form of Legend for Securities in Global Form...................... 15
ARTICLE 3
THE SECURITIES
3.1. Amount Unlimited; Issuable in Series.............................. 15
3.2. Denominations..................................................... 18
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3.3. Execution, Authentication, Delivery and Dating.................... 18
3.4. Temporary Securities.............................................. 21
3.5. Registration, Transfer and Exchange............................... 21
3.6. Replacement Securities............................................ 24
3.7. Payment of Interest; Interest Rights Preserved.................... 25
3.8. Persons Deemed Owners............................................. 27
3.9. Cancellation...................................................... 28
3.10. Computation of Interest.......................................... 28
3.11. CUSIP Numbers.................................................... 28
3.12. Currency of Payment in Respect of Securities..................... 28
ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
4.1. Termination of Company's Obligations Under the Indenture.......... 28
4.2. Application of Trust Funds........................................ 30
4.3. Applicability of Defeasance Provisions; Company's Option to Effect
Defeasance or Covenant Defeasance.............................. 30
4.4. Defeasance and Discharge.......................................... 30
4.5. Covenant Defeasance............................................... 31
4.6. Conditions to Defeasance or Covenant Defeasance................... 31
4.7. Deposited Money and Government Obligations to Be Held in Trust.... 33
4.8. Repayment to Company.............................................. 33
4.9. Indemnity for Government Obligations.............................. 33
ARTICLE 5
DEFAULTS AND REMEDIES
5.1. Events of Default................................................. 33
5.2. Acceleration; Rescission and Annulment............................ 35
5.3. Collection of Indebtedness and Suits for Enforcement by Trustee... 35
5.4. Trustee May File Proofs of Claim.................................. 36
5.5. Trustee May Enforce Claims Without Possession of Securities....... 36
5.6. Delay or Omission Not Waiver...................................... 36
5.7. Waiver of Past Defaults........................................... 36
5.8. Control by Majority............................................... 36
5.9. Limitation on Suits by Holders.................................... 37
5.10. Rights of Holders to Receive Payment............................. 37
5.11. Application of Money Collected................................... 38
5.12. Restoration of Rights and Remedies............................... 38
5.13. Rights and Remedies Cumulative................................... 38
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ARTICLE 6
THE TRUSTEE
6.1. Certain Duties and Responsibilities of the Trustee................ 38
6.2. Rights of Trustee................................................. 39
6.3. Trustee May Hold Securities....................................... 39
6.4. Money Held in Trust............................................... 39
6.5. Trustee's Disclaimer.............................................. 40
6.6. Notice of Defaults................................................ 40
6.7. Reports by Trustee to Holders..................................... 40
6.8. Securityholder Lists.............................................. 40
6.9. Compensation and Indemnity........................................ 40
6.10. Replacement of Trustee........................................... 41
6.11. Acceptance of Appointment by Successor........................... 42
6.12. Eligibility Disqualification..................................... 43
6.13. Merger, Conversion, Consolidation or Succession to Business...... 44
6.14. Appointment of Authenticating Agent.............................. 44
ARTICLE 7
CONSOLIDATION, MERGER OR SALE BY THE COMPANY
7.1. Consolidation, Merger or Sale of Assets Permitted................. 46
ARTICLE 8
SUPPLEMENTAL INDENTURES
8.1. Supplemental Indentures Without Consent of Holders................ 46
8.2. Supplemental Indentures With Consent of Holders................... 47
8.3. Compliance with Trust Indenture Act............................... 48
8.4. Execution of Supplemental Indentures.............................. 48
8.5. Effect of Supplemental Indentures................................. 48
8.6. Reference in Securities to Supplemental Indentures................ 49
ARTICLE 9
COVENANTS
9.1. Payment of Principal, Premium, if any, and Interest............... 49
9.2. Maintenance of Office or Agency................................... 49
9.3. Money for Securities Payments to Be Held in Trust; Unclaimed Money 50
9.4. Corporate Existence............................................... 51
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9.5. Insurance......................................................... 51
9.6. Reports by the Company............................................ 52
9.7. Annual Review Certificate; Notice of Defaults or Events of Default 52
9.8. Limitation on Liens............................................... 52
9.9. Limitation on Sale and Leaseback Transactions..................... 54
9.10. Books of Record and Account; Compliance with Law................. 54
9.11. Taxes............................................................ 55
ARTICLE 10
REDEMPTION
10.1. Applicability of Article......................................... 55
10.2. Election to Redeem; Notice to Trustee............................ 55
10.3. Selection of Securities to Be Redeemed........................... 55
10.4. Notice of Redemption............................................. 56
10.5. Deposit of Redemption Price...................................... 57
10.6. Securities Payable on Redemption Date............................ 57
10.7. Securities Redeemed in Part...................................... 58
ARTICLE 11
SINKING FUNDS
11.1. Applicability of Article......................................... 58
11.2. Satisfaction of Sinking Fund Payments with Securities............ 58
11.3. Redemption of Securities for Sinking Fund........................ 59
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INDENTURE, dated as of [ ], [ ], between PUBLIC SERVICE
COMPANY OF NORTH CAROLINA, INCORPORATED, a North Carolina corporation (the
"Company"), and FIRST UNION NATIONAL BANK OF NORTH CAROLINA, as trustee (the
"Trustee").
RECITALS
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness ("Securities"), to be
issued in one or more series as herein provided and to rank as to priority of
payment equally with all other outstanding unsubordinated and unsecured
indebtedness of the Company.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of
the Securities by the Holders (as defined below) thereof, it is mutually
covenanted and agreed as follows for the equal and ratable benefit of the
Holders of the Securities:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision; and
(5) all references to any law shall include such law or any
successor law as amended, supplemented or otherwise modified and in
effect from time to time, and any other law in substance substitute
therefor.
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"Act" shall have the meaning set forth in Section 1.4(a).
"Affiliate" of any specified Person means any Person directly
or indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition, "control"
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Paying Agent or Registrar.
"Attributable Debt" means, as to a lease under which any
Person is at the time liable that is required to be classified and accounted for
as a Capitalized Lease Obligation on a Person's balance sheet under GAAP, at any
date as of which the amount thereof is to be determined, the total net amount of
rent required to be paid by such Person under such lease during the remaining
primary term thereof, discounted from the respective due dates thereof to such
date at the rate per annum equal to the interest rate implicit in such lease.
The net amount of rent required to be paid under any such lease for such period
shall be the aggregate amount of rent payable by lessee with respect to such
period after excluding amounts required to be paid on account of maintenance and
repairs, insurance, taxes, assessments, water rates and similar expenses or any
amount required to be paid by such lessee thereunder contingent upon the amount
of revenues (or other similar contingent amounts). In the case of any lease
which is terminable by the lessee upon the payment of a penalty, such net amount
shall also include the amount of such penalty, but no rent shall be considered
as required to be paid under such lease subsequent to the first date upon which
it may be so terminated. Notwithstanding the foregoing, the term Attributable
Debt excludes any amounts in respect of any Sale and Leaseback Transaction which
the Company or a Subsidiary is permitted to enter into in accordance with the
last sentence of Section 9.9 of this Indenture.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general
circulation, in the official language of the country of publication or in the
English language, customarily published on each Business Day whether or not
published on Saturdays, Sundays or holidays. Whenever successive publications in
an Authorized Newspaper are required hereunder they may be made (unless
otherwise expressly provided herein) on the same or different days of the week
and in the same or different Authorized Newspapers.
"Bankruptcy Law" shall have the meaning set forth in Section
5.1.
"Bearer Security" means any Security issued hereunder which is
payable to bearer.
"Board" or "Board of Directors" means the Board of Directors
of the Company, or any other duly authorized committee thereof.
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"Board Resolution" means a copy of a resolution of the Board
of Directors, certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of the certificate, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
particular location are authorized or obligated by law or executive order to
close.
"Capitalized Lease Obligation" means, as applied to any
Person, the rental obligation under any lease of any Property (whether real,
personal or mixed) the discounted present value of the rental obligations of
such Person as lessee under which, in conformity with GAAP, is required to be
capitalized on the balance sheet of that Person.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this Indenture such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the party named as the Company in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter means
such successor.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by two Officers, one
of whom must be the Chairman of the Board, the President, the Chief Financial
Officer, the Treasurer, the Assistant Treasurer, the Controller or a
Vice-President of the Company.
"Consolidated Net Tangible Assets" means, with respect to the
Company as of any date, the total assets of the Company as they appear on the
most recently prepared consolidated balance sheet of the Company as of the end
of a fiscal quarter, less (i) all liabilities shown on such consolidated balance
sheet that are classified and accounted for as current liabilities or that
otherwise would be considered current liabilities under GAAP; and (ii) all
assets shown on such consolidated balance sheet that are classified and
accounted for as intangible assets of the Company or that otherwise would be
considered intangible assets under GAAP, including, without limitation,
franchises, licenses, patents and patent applications, trademarks, brand names
and goodwill.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at [ ], Attention:
[Corporate Trust Administration].
"Custodian" shall have the meaning set forth in Section 5.1.
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"Default" means any event which is, or after notice or passage
of time, or both, would be, an Event of Default.
"Defaulted Interest" shall have the meaning set forth in
Section 3.7(b).
"Depository" when used with respect to the Securities of or
within any series issuable or issued in whole or in part in global form, means
the Person designated as Depository by the Company pursuant to Section 3.1 until
a successor Depository shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person
which is then a Depository hereunder, and if at any time there is more than one
such Person, shall be a collective reference to such Persons.
"Dollar" means the currency of the United States as at the
time of payment is legal tender for the payment of public and private debts.
"Event of Default" shall have the meaning set forth in Section
5.1.
"Funded Debt" means all indebtedness for borrowed money owed
or guaranteed by the Company or any of its Subsidiaries and any other
indebtedness which, under GAAP, would appear as indebtedness on the most recent
consolidated balance sheet of the Company, which matures by its terms more than
12 months from the date of such consolidated balance sheet or which matures by
its terms in less than 12 months but by its terms is renewable or extendible
beyond 12 months from the date of such consolidated balance sheet at the option
of the borrower.
"GAAP" means generally accepted accounting principles in the
United States as in effect on the date of application thereof.
"Government Obligations" means securities which are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued
by a bank or trust company subject to federal or state supervision or
examination with a combined capital and surplus of at least $50,000,000, as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depository receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Obligation or
the specific payment of interest on or principal of the Government Obligation
evidenced by such depository receipt.
"Holder" means, with respect to a Bearer Security, a bearer
thereof or of a coupon appertaining thereto and, with respect to a Registered
Security, a person in whose name a Security is registered on the Register.
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"Indenture" means this Indenture as originally executed or as
amended or supplemented from time to time and shall include the forms and terms
of particular series of Securities established as contemplated hereunder.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"interest" when used with respect to an Original Issue
Discount Security which by its terms bears interest only after maturity, means
interest payable after maturity.
"Interest Payment Date" when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Lien" means any mortgage, pledge, lien, charge, security
interest, trust arrangement, conditional sale or other title retention agreement
or other encumbrance of any nature whatsoever.
"Maturity" when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the President, any
Vice-President, the Chief Financial Officer, the Treasurer, the Assistant
Treasurer, the Controller, the Secretary or any Assistant Secretary of the
Company.
"Officer's Certificate," when used with respect to the
Company, means a certificate signed by an Officer who must be the Chairman of
the Board, the President, the Chief Financial Officer, the Treasurer, the
Assistant Treasurer, the Controller or a Vice-President of the Company.
"Opinion of Counsel" means a written opinion from the general
counsel of the Company or other legal counsel who is reasonably acceptable to
the Trustee. Such counsel may be an employee of or counsel to the Company.
"Original Issue Discount Security" means any Security which
provides for an amount less than the stated principal amount thereof to be due
and payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
"Outstanding," when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
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(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities
and any coupons appertaining thereto, provided that, if such Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provisions therefor satisfactory to the
Trustee have been made;
(iii) Securities, except to the extent provided in Sections 4.4
and 4.5, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article 4; and
(iv) Securities which have been paid pursuant to Section 3.6 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (a) the principal amount of any Original Issue Discount
Securities that may be counted in making such determination or calculation and
that shall be deemed to be Outstanding for such purpose shall be equal to the
amount of principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such determination, upon a declaration of
acceleration of the maturity thereof pursuant to Section 5.2, and (b) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in making such calculation or in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which the Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium, if any, or interest on any Securities on behalf
of the Company.
"Periodic Offering" means an offering of Securities of a
series from time to time the specific terms of which Securities, including,
without limitation, the rate or rates of interest or formula for determining the
rate or rates of interest thereon, if any, the Maturity thereof and the
redemption provisions, if any, with respect thereto, are to be determined by the
Company upon the issuance of such Securities.
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"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment," when used with respect to the Securities
of or within any series, means the place or places where the principal of,
premium, if any, and interest on such Securities are payable as specified or
contemplated by Sections 3.1 and 9.2.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"principal amount," when used with respect to any Security,
means the amount of principal, if any, payable in respect thereof at Maturity;
provided, however, that when used with respect to an Indexed Security in any
context other than the making of payments at Maturity, "principal amount" means
the principal face amount of such Indexed Security at original issuance.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"Redemption Date," when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to
be redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Register" shall have the meaning set forth in Section 3.5.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.
"Registrar" shall have the meaning set forth in Section 3.5.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of or within any series means the date specified
for that purpose as contemplated by Section 3.1.
"Responsible Officer," when used with respect to the Trustee,
shall mean the chairman or any vice-chairman of the board of directors, the
chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any senior vice
president, any vice president, any assistant vice president, the secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
senior trust officer, any trust officer, the controller, any assistant
controller, or any officer of the Trustee customarily performing functions
similar to those performed by the persons who at the
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time shall be such officers, respectively, or to whom any corporate trust matter
is referred because of his knowledge of and familiarity with a particular
subject.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Subsidiary of any Property, whether owned at
the date of this Indenture or thereafter acquired, which has been or is to be
sold or transferred by the Company or such Subsidiary to such Person or to any
other Person to whom funds have been or are to be advanced by such Person on the
security of such Property.
"Secured Debt" shall have the meaning set forth in Section
9.8(a).
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means a Security or Securities
of the Company issued, authenticated and delivered under this Indenture.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity," when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or in a coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" of any Person means any Person of which at least
a majority of capital stock having ordinary voting power for the election of
directors or other governing body of such Person is owned by such Person
directly or through one or more Subsidiaries of such Person.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in effect on the date of this Indenture, except as provided in Section 8.3.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor Trustee replaces it pursuant to the
applicable provisions of this Indenture, and thereafter means such successor
Trustee and if, at any time, there is more than one Trustee, "Trustee" as used
with respect to the Securities of any series shall mean the Trustee with respect
to the Securities of that series.
"United States" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, the United
States of America (including the States and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.
"U.S. Person" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, a citizen,
national or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United
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States or any political subdivision thereof, or an estate or trust, the income
of which is subject to United States federal income taxation regardless of its
source.
"Yield to Maturity" means the yield to maturity, calculated by
the Company at the time of issuance of a series of Securities or, if applicable,
at the most recent determination of interest on such series, in accordance with
accepted financial practice.
Section 1.2. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Sections 2.3 and 9.7) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such condition
or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more such Persons as
to other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is
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based are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations as to such matters are
erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 1.4. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed by any trust
company, bank, banker or other depository, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depository, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (i) another such certificate or affidavit
bearing a later date issued in respect of the same Bearer Security is produced,
(ii) such Bearer Security is produced to the Trustee by some other Person, (iii)
such Bearer Security is surrendered in exchange for a Registered Security or
(iv) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
(d) The ownership of Registered Securities shall be proved by
the Register.
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(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(f) Until such time as written instruments shall have been
delivered with respect to the requisite percentage of principal amount of
Securities for the action contemplated by such instruments, any such instrument
executed and delivered by or on behalf of a Holder may be revoked with respect
to any or all of such Holder's Securities by written notice by such Holder or
any subsequent Holder, delivered in the manner in which such instrument was
delivered.
(g) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purpose of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
Section 1.5. Notices, etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company, shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Trustee at its [Corporate Trust Office, Attention:
Corporate Trust Administration], or
(2) the Company by the Trustee or by any Holder, shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at Public Service Company of
North Carolina, Incorporated, 400 Cox Road, P.O. Box 1398, Gastonia,
North Carolina 28053-1398, Attention: Chief Financial Officer, or at
any other address previously furnished in writing to the Trustee by the
Company.
Section 1.6. Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, (i) if any of the Securities
affected by such event are Registered Securities, such notice to the Holders
thereof shall be sufficiently given (unless otherwise herein
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expressly provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his address as it appears in the
Register, within the time prescribed for the giving of such notice, and (ii) if
any of the Securities affected by such event are Bearer Securities, notice to
the Holders thereof shall be sufficiently given (unless otherwise herein or in
the terms of such Bearer Securities expressly provided) if published once in an
Authorized Newspaper in New York, New York, and in such other city or cities, if
any, as may be specified as contemplated by Section 3.1.
In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. In any case where notice
is given to Holders by publication, neither the failure to publish such notice,
nor any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
If by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice as
provided above, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
If it is impossible or, in the opinion of the Trustee, impracticable to give any
notice by publication in the manner herein required, then such publication in
lieu thereof as shall be made with the approval of the Trustee shall constitute
a sufficient publication of such notice.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 1.7. Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 1.8. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 1.9. Separability. In case any provision of this
Indenture or the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
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Section 1.10. Benefits of Indenture. Nothing in this Indenture
or in the Securities, expressed or implied, shall give to any Person, other than
the parties hereto and their successors hereunder and the Holders, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
Section 1.11. Governing Law. THIS INDENTURE, THE SECURITIES
AND ANY COUPONS APPERTAINING THERETO SHALL, PURSUANT TO SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW, BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO THE CHOICE OF LAW
PROVISIONS THEREOF (OTHER THAN SUCH SECTION 5-1401). This Indenture is subject
to the Trust Indenture Act and if any provision hereof limits, qualifies or
conflicts with the Trust Indenture Act, the Trust Indenture Act shall control.
Section 1.12. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of any Security
or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section),
payment of principal, premium, if any, or interest need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on such
date; provided that if such payment is timely made, no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date,
Redemption Date, sinking fund payment date, Stated Maturity or Maturity, as the
case may be, until such next succeeding Business Day.
ARTICLE 2
SECURITY FORMS
Section 2.1. Forms Generally. The Securities of each series
and the coupons, if any, to be attached thereto shall be in substantially such
form as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
and coupons, if any, as evidenced by their execution of the Securities and
coupons, if any. Unless otherwise provided as contemplated in Section 3.1,
Securities will be issued only in registered, certificated form without coupons
or in the form of one or more global securities. If temporary Securities of any
series are issued as permitted by Section 3.4, the form thereof also shall be
established as provided in the preceding sentence. If the forms of Securities
and coupons, if any, of any series are established by, or by action taken
pursuant to, a Board Resolution, a copy of the Board Resolution together with an
appropriate record of any such action taken pursuant thereto, including a copy
of the approved form of Securities or coupons, if any, shall be certified by the
Corporate Secretary or an Assistant Secretary of the
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Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.3 for the authentication and delivery of such
Securities.
Unless otherwise specified as contemplated by Section 3.1,
Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such Securities
and coupons, if any, as evidenced by their execution of such Securities and
coupons, if any.
Section 2.2. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series described in the
within-mentioned Indenture.
-----------------------------
as Trustee
By___________________________
Authorized Signatory
Section 2.3. Securities in Global Form. If Securities of or
within a series are issuable in whole or in part in global form, any such
Security may provide that it shall represent the aggregate or specified amount
of Outstanding Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Securities represented thereby
may from time to time be reduced to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in
the amount, or changes in the rights of Holders, of Outstanding Securities
represented thereby, shall be made in such manner and by such Person or Persons
as shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 3.3 or 3.4. Subject to the provisions of Section 3.3
and, if applicable, Section 3.4, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Company Order. Any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not comply
with Section 1.2 hereof and need not be accompanied by an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall
apply to any Security in global form if such Security was never issued and sold
by the Company and the Company delivers to the Trustee the Security in global
form together with written instructions (which need not comply with Section 1.2
and need not be accompanied by an Opinion of Counsel) with regard to the
reduction in the principal amount of Securities represented thereby, together
with the written statement contemplated by the last paragraph of Section 3.3.
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Notwithstanding the provisions of Sections 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal of,
premium, if any, and interest on any Security in permanent global form shall be
made to the Person or Persons specified therein.
Section 2.4. Form of Legend for Securities in Global Form. Any
Security in global form authenticated and delivered hereunder shall bear a
legend in substantially the following form:
This Security is in global form within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depository
or a nominee of a Depository. Unless and until it is exchanged in whole or in
part for Securities in certificated form, this Security may not be transferred
except as a whole by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the Depository
or by the Depository or any such nominee to a successor Depository or a nominee
of such successor Depository.
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series. (a) The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued from
time to time in one or more series.
(b) The following matters shall be established with respect to
each series of Securities issued hereunder (i) by a Board Resolution, (ii) by
action taken pursuant to a Board Resolution and (subject to Section 3.3) set
forth, or determined in the manner provided, in an Officer's Certificate or
(iii) in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title
shall distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (which limit shall not pertain to Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to
Section 3.4, 3.5, 3.6, 8.6, or 10.7);
(3) the date or dates on which the principal of and premium,
if any, on the Securities of the series is payable or the method of
determination thereof;
(4) the rate or rates (which may be fixed, variable or zero)
at which the Securities of the series shall bear interest, if any, or
the method of calculating such rate or rates of interest;
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(5) the date or dates from which interest, if any, shall
accrue or the method by which such date or dates shall be determined;
(6) the Interest Payment Dates on which any such interest
shall be payable and, with respect to Registered Securities, the
Regular Record Date, if any, for the interest payable on any Registered
Security on any Interest Payment Date;
(7) the place or places where the principal of, premium, if
any, and interest, if any, on Securities of the series shall be
payable;
(8) the period or periods within which, the price or prices at
which, the currency in which, and the other terms and conditions upon
which, Securities of the series may be redeemed, in whole or in part,
at the option of the Company and, if other than as provided in Section
10.3, the manner in which the particular Securities of such series (if
less than all Securities of such series are to be redeemed) are to be
selected for redemption;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event or at
the option of a Holder thereof and the period or periods within which,
the price or prices at which, and the other terms and conditions upon
which, Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and if other than the
denomination of $5,000, if Bearer Securities, the denominations in
which Securities of the series shall be issuable;
(11) if other than Dollars, the currency for which the
Securities of the series may be purchased or in which the Securities of
the series shall be denominated and/or the currency in which the
principal of, premium, if any, and interest, if any, on the Securities
of the series shall be payable and the particular provisions applicable
thereto in accordance with, in addition to, or in lieu of the
provisions of this Indenture;
(12) if the amount of payments of principal of, premium, if
any, and interest, if any, on the Securities of the series shall be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on a
currency or currencies (including currency unit or units) other than
that in which the Securities of the series are denominated or
designated to be payable), the index, formula or other method by which
such amounts shall be determined;
(13) if the amount of payments of principal, premium, if any,
and interest, if any, on the Securities of the series shall be
determined with reference to an index, formula or other method based on
the prices of securities or commodities, with reference to changes in
the prices of securities or commodities or otherwise by application of
a formula, the index, formula or other method by which such amounts
shall be determined;
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(14) if other than the entire principal amount thereof, the
portion of the principal amount of such Securities of the series which
shall be payable upon declaration of acceleration thereof pursuant to
Section 5.2 or the method by which such portion shall be determined;
(15) if other than as provided in Section 3.7, the Person to
whom any interest on any Registered Security of the series shall be
payable and the manner in which, or the Person to whom, any interest on
any Bearer Securities of the series shall be payable;
(16) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(17) any addition to or modification or deletion of any Events
of Default set forth in Section 5.1 or covenant of the Company set
forth in Article 9 pertaining to the Securities of the series;
(18) under what circumstances, if any, the Company will pay
additional amounts on the Securities of that series held by a Person
who is not a U.S. Person in respect of taxes or similar charges
withheld or deducted and, if so, whether the Company will have the
option to redeem such Securities rather than pay such additional
amounts (and the terms of any such option);
(19) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without interest
coupons), or both, and any restrictions applicable to the offering,
sale or delivery of Bearer Securities and, if other than as provided in
Section 3.5, the terms upon which Bearer Securities of a series may be
exchanged for Registered Securities of the same series and vice versa;
(20) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities
of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(21) the forms of the Securities and coupons, if any, of the
series;
(22) the applicability, if any, to the Securities of or within
the series of Sections 4.4 and 4.5, or such other means of defeasance
or covenant defeasance as may be specified for the Securities and
coupons, if any, of such series;
(23) if other than the Trustee, the identity of the Registrar
and any Paying Agent;
(24) if the Securities of the series shall be issued in whole
or in part in global form, (i) the Depository for such global
Securities, (ii) whether beneficial owners of interests in any
Securities of the series in global form may exchange such interests for
certificated Securities of such series and of like tenor of any
authorized form and denomination and (iii) if other than as provided in
Section 3.5, the circumstances under which any such exchange may occur;
and
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(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture) including any terms
which may be required by or advisable under United States laws or
regulations or advisable in connection with the marketing of Securities
of the series.
(c) All Securities of any one series and coupons, if any,
appertaining to any Bearer Securities of such series shall be substantially
identical except, in the case of Registered Securities, as to denomination and
except as may otherwise be provided (i) by a Board Resolution, (ii) by action
taken pursuant to a Board Resolution and (subject to Section 3.3) set forth, or
determined in the manner provided, in the related Officer's Certificate or (iii)
in an indenture supplemental hereto. All Securities of any one series need not
be issued at the same time and, if permitted by the terms of a series as
established pursuant to Section 3.1(b), such series may be reopened, without the
consent of the Holders, for issuances of additional Securities of such series.
(d) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be certified by the Corporate Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officer's Certificate setting forth, or providing the manner for
determining, the terms of the Securities of such series, and an appropriate
record of any action taken pursuant thereto in connection with the issuance of
any Securities of such series shall be delivered to the Trustee prior to the
authentication and delivery thereof.
Section 3.2. Denominations. Unless otherwise provided as
contemplated by Section 3.1, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by an Officer (other than
the Corporate Secretary or the Assistant Secretary) under the Company's seal
affixed thereto or reproduced thereon attested by the Corporate Secretary or the
Assistant Secretary. The signatures of any of these Officers on the Securities
may be manual or facsimile. The coupons, if any, of Bearer Securities shall bear
the facsimile signature of two Officers.
Securities and coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper Officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time, the Company may deliver
Securities, together with any coupons appertaining thereto, of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities; provided, however, that in the case of Securities offered in a
Periodic Offering, the Trustee shall authenticate and deliver such Securities
from time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or
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electronic instructions from the Company or its duly authorized agents, promptly
confirmed in writing) acceptable to the Trustee as may be specified by or
pursuant to a Company Order delivered to the Trustee prior to the time of the
first authentication of Securities of such series.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 2.1 and 3.1, in authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to section 315(a) through
(d) of the Trust Indenture Act) shall be fully protected in relying upon, an
Opinion of Counsel stating,
(1) if the forms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by
Section 2.1, that such forms have been established in conformity with
the provisions of this Indenture;
(2) if the terms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by
Section 3.1, that such terms have been, or in the case of Securities of
a series offered in a Periodic Offering, will be, established in
conformity with the provisions of this Indenture, subject, in the case
of Securities offered in a Periodic Offering, to any conditions
specified in such Opinion of Counsel;
(3) that such Securities together with any coupons
appertaining thereto, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws of general
applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles; and
(4) that all laws and requirements in respect of the execution
and delivery by the Company of such Securities have been complied with.
Notwithstanding that such form or terms have been so
established, the Trustee shall have the right to decline to authenticate such
Securities if, in the written opinion of counsel to the Trustee (which counsel
may be an employee of the Trustee) reasonably acceptable to the Company, the
issue of such Securities pursuant to this Indenture will adversely affect the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the two
preceding paragraphs, if all of the Securities of any series are not to be
issued at one time, it shall not be necessary to deliver the Officer's
Certificate otherwise required pursuant to Section 3.1 or the Company Order and
Opinion of Counsel otherwise required pursuant to the two preceding paragraphs
in connection with the authentication of each Security of such series if such
documents, with appropriate modifications to cover such future issuances, are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
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With respect to Securities of a series offered in a Periodic
Offering, the Trustee may rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 2.1 and 3.1 and this Section, as
applicable, in connection with the first authentication of Securities of such
series, unless and until such Opinion of Counsel or other documents have been
suspended or revoked.
If the Company shall establish pursuant to Section 3.1 that
the Securities of a series are to be issued in whole or in part in global form,
then the Company shall execute and the Trustee shall, in accordance with this
Section and the Company Order with respect to such series, authenticate and
deliver one or more Securities in global form that (i) shall represent and shall
be denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Security or
Securities in global form, (ii) shall be registered, if a Registered Security,
in the name of the Depository for such Security or Securities in global form or
the nominee of such Depository, (iii) shall be delivered by the Trustee to such
Depository or pursuant to such Depository's instruction and (iv) shall bear the
legend set forth in Section 2.4.
Each Depository designated pursuant to Section 3.1 for a
Registered Security in global form must, at the time of its designation and at
all times while it serves as Depository, be a clearing agency registered under
the Securities Exchange Act of 1934 and any other applicable statute or
regulation. The Trustee shall have no responsibility to determine if the
Depository is so registered. Each Depository shall enter into an agreement with
the Trustee governing the respective duties and rights of such Depository and
the Trustee with regard to Securities issued in global form.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 3.1.
No Security or coupon appertaining thereto shall be entitled
to any benefits under this Indenture or be valid or obligatory for any purpose
until authenticated by the manual signature of one of the authorized signatories
of the Trustee or an Authenticating Agent and no coupon shall be valid until the
Security to which it appertains has been so authenticated. Such signature upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered under this Indenture and is
entitled to the benefits of this Indenture. Except as permitted by Section 3.6
or 3.7, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been detached and
cancelled.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9 together with a written statement (which need not comply
with Section 1.2 and need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued and sold by the Company, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
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Section 3.4. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute and, upon Company
Order, the Trustee shall authenticate and deliver temporary Securities of such
series which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor and form,
with or without coupons, of the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities and coupons, if
any. In the case of Securities of any series, such temporary Securities may be
in global form, representing all or a portion of the Outstanding Securities of
such series.
Except in the case of temporary Securities in global form,
each of which shall be exchanged in accordance with the provisions thereof, if
temporary Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company pursuant to Section 9.2 in a Place of Payment for such series,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor; provided, however, that no definitive Bearer Security shall be delivered
in exchange for a temporary Registered Security; and provided further that no
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security unless the Trustee shall have received from the person entitled to
receive the definitive Bearer Security a certificate substantially in the form
approved in the Board Resolutions relating thereto and such delivery shall occur
only outside the United States. Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series except as otherwise specified
as contemplated by Section 3.1.
Section 3.5. Registration, Transfer and Exchange. The Company
shall cause to be kept at the Corporate Trust Office of the Trustee or in any
office or agency to be maintained by the Company in accordance with Section 9.2
in a Place of Payment a register (the "Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of
Registered Securities. The Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. The
Trustee is hereby appointed "Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency maintained pursuant to Section
9.2 in a Place of Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount containing
identical terms and provisions.
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Bearer Securities or any coupons appertaining thereto shall be
transferable by delivery.
At the option of the Holder, Registered Securities of any
series (except a Registered Security in global form) may be exchanged for other
Registered Securities of the same series, of any authorized denominations and of
a like aggregate principal amount containing identical terms and provisions,
upon surrender of the Registered Securities to be exchanged at such office or
agency. Whenever any Registered Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is entitled to
receive. Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities may not be issued in exchange for Registered Securities.
Unless otherwise specified as contemplated by Section 3.1, at
the option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations and of like tenor
and aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company and the
Trustee in an amount equal to the face amount of such missing coupon or coupons,
or the surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 9.2, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside the United States. Notwithstanding the
foregoing, in case any Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series after
the close of business at such office or agency on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon relating
to such Interest Payment Date or proposed date of payment, as the case may be
(or, if such coupon is so surrendered with such Bearer Security, such coupon
shall be returned to the person so surrendering the Bearer Security), and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon, when due in accordance
with the provisions of this Indenture.
Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for Securities in definitive
certificated form, a Security in global
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form representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depository for such series to a nominee of
such Depository or by a nominee of such Depository to such Depository or another
nominee of such Depository or by such Depository or any such nominee to a
successor Depository for such series or a nominee of such successor Depository.
If at any time the Depository for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depository
for the Securities of such series or if at any time the Depository for the
Securities of such series shall no longer be eligible under Section 3.3, the
Company shall appoint a successor Depository with respect to the Securities of
such series. If a successor Depository for the Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election pursuant to
Section 3.1(b)(24) shall no longer be effective with respect to the Securities
of such series and the Company shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of certificated Securities of
such series of like tenor, shall authenticate and deliver, Securities of such
series of like tenor in certificated form, in authorized denominations and in an
aggregate principal amount equal to the principal amount of the Security or
Securities of such series of like tenor in global form in exchange for such
Security or Securities in global form.
The Company may at any time in its sole discretion determine
that Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
If specified by the Company pursuant to Section 3.1 with
respect to a series of Securities, the Depository for such series may surrender
a Security in global form of such series in exchange in whole or in part for
Securities of such series in certificated form on such terms as are acceptable
to the Company and such Depository. Thereupon, the Company shall execute, and
the Trustee shall authenticate and deliver, without service charge,
(i) to each Person specified by such Depository a new certificated
Security or Securities of the same series of like tenor, of any
authorized denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Security in global form; and
(ii) to such Depository a new Security in global form of like tenor
in a denomination equal to the difference, if any, between the
principal amount of the surrendered Security in global form and the
aggregate principal amount of certificated Securities delivered to
Holders thereof.
Upon the exchange of a Security in global form for Securities
in certificated form, such Security in global form shall be cancelled by the
Trustee. Unless expressly provided with
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respect to the Securities of any series that such Security may be exchanged for
Bearer Securities, Securities in certificated form issued in exchange for a
Security in global form pursuant to this Section shall be registered in such
names and in such authorized denominations as the Depository for such Security
in global form, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to the Persons in whose names such Securities are so registered.
Whenever any Securities are surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
upon any exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company,
the Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Registrar and
the Trustee duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of
transfer or for any exchange of Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration or transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4 or 10.7 not involving
any transfer.
The Company shall not be required (i) to issue, register the
transfer of, or exchange any Securities for a period beginning at the opening of
business 15 days before any selection for redemption of Securities of like tenor
and of the series of which such Security is a part and ending at the close of
business on the earliest date on which the relevant notice of redemption is
deemed to have been given to all Holders of Securities of like tenor and of such
series to be redeemed; (ii) to register the transfer of or exchange any
Registered Security so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part; or (iii) to exchange
any Bearer Security so selected for redemption, except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor; provided that such Registered Security shall be simultaneously
surrendered for redemption.
Section 3.6. Replacement Securities. If a mutilated Security
or a Security with a mutilated coupon appertaining to it is surrendered to the
Trustee, together with, in proper cases, such security or indemnity as may be
required by the Company or the Trustee to save each of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver a
replacement Registered Security, if such surrendered Security was a Registered
Security, or a replacement Bearer Security with coupons corresponding to the
coupons appertaining to the
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surrendered Security, if such surrendered Security was a Bearer Security, of the
same series and date of maturity, if the Trustee's requirements are met.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or Security with a destroyed, lost or stolen coupon and (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security or coupon has been acquired by a bona fide purchaser,
the Company shall execute and the Trustee shall authenticate and deliver in lieu
of any such destroyed, lost or stolen Security or in exchange for the Security
to which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a replacement Registered Security, if
such Holder's claim appertains to a Registered Security, or a replacement Bearer
Security with coupons corresponding to the coupons appertaining to the
destroyed, lost or stolen Bearer Security or the Bearer Security to which such
lost, destroyed or stolen coupon appertains, if such Holder's claim appertains
to a Bearer Security, of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding with coupons corresponding to the coupons, if any, appertaining to
the destroyed, lost or stolen Security.
In case any such mutilated, destroyed, lost or stolen Security
or coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new security or coupon, pay such Security
or coupon; provided, however, that payment of principal of and any premium or
interest on Bearer Securities shall, except as otherwise provided in Section
9.2, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 3.1, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
and its coupon, if any, or the destroyed, lost or stolen coupon, shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
Section 3.7. Payment of Interest; Interest Rights Preserved.
(a) Unless otherwise provided as contemplated by Section 3.1, interest, if any,
on any Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date
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shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency maintained for such
purpose pursuant to 9.2; provided, however, that at the option of the Company,
interest on any series of Registered Securities that bear interest may be paid
(i) by check mailed to the address of the Person entitled thereto as it shall
appear on the Register of Holders of Securities of such series or (ii) by wire
transfer to an account maintained by the Person entitled thereto as specified in
the Register of Holders of Securities of such series.
Unless otherwise provided as contemplated by Section 3.1, (i)
interest, if any, on Bearer securities shall be paid only against presentation
and surrender of the coupons for such interest installments as are evidenced
thereby as they mature and (ii) original issue discount, if any, on Bearer
Securities shall be paid only against presentation and surrender of such
Securities; in either case at the office of a Paying Agent located outside the
United States, unless the Company shall have otherwise instructed the Trustee in
writing, provided that any such instruction for payment in the United States
does not cause any Bearer Security to be treated as a "registration-required
obligation" under United States laws and regulations. The interest, if any, on
any temporary Bearer Security shall be paid, as to any installment of interest
evidenced by a coupon attached thereto only upon presentation and surrender of
such coupon and, as to other installments of interest, only upon presentation of
such Security for notation thereon of the payment of such interest. If at the
time a payment of principal of or interest, if any, on a Bearer Security or
coupon shall become due, the payment of the full amount so payable at the office
or offices of all the Paying Agents outside the United States is illegal or
effectively precluded because of the imposition of exchange controls or other
similar restrictions on the payment of such amount in Dollars, then the Company
may instruct the Trustee in writing to make such payments at a Paying Agent
located in the United States, provided that provision for such payment in the
United States would not cause such Bearer Security to be treated as a
"registration-required obligation" under United States laws and regulations.
(b) Unless otherwise provided as contemplated by Section 3.1,
any interest on Registered Securities of any series which is payable, but is not
punctually paid or duly provided for, on any interest payment date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holders
on the relevant Regular Record Date by virtue of their having been such Holders,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of such Defaulted
Interest to the Persons in whose names such Registered Securities (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause (1) provided. Thereupon
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
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proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of such Registered Securities at his address as
it appears in the Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names such
Registered Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of such Defaulted Interest to
the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered at the close of
business on a specified date in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Registered Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause (2), such
manner of payment shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and
Section 3.5, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Section 3.8. Persons Deemed Owners. Prior to due presentment
of any Registered Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name such Registered Security is registered as the owner of such
Registered Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 3.7) interest on such Registered
Security and for all other purposes whatsoever, whether or not such Registered
Security be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Bearer Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company
or the Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Security in global form,
nothing herein shall prevent the Company or the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any Depository (or
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its nominee), as a Holder, with respect to such Security in global form or
impair, as between such Depository and owners of beneficial interests in such
Security in global form, the operation of customary practices governing the
exercise of the rights of such Depository (or its nominee) as Holder of such
Security in global form.
Section 3.9. Cancellation. The Company at any time may deliver
Securities and coupons to the Trustee for cancellation. The Registrar and any
Paying Agent shall forward to the Trustee any Securities and coupons surrendered
to them for replacement, for registration of transfer, or for exchange or
payment. The Trustee shall cancel all Securities and coupons surrendered for
replacement, for registration of transfer, or for exchange, payment, redemption
or cancellation and may, but shall not be required to, dispose of cancelled
Securities and coupons and issue a certificate of destruction to the Company.
The Company may not issue new Securities to replace Securities that it has paid
or delivered to the Trustee for cancellation.
Section 3.10. Computation of Interest. Except as otherwise
specified as contemplated by Section 3.1, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, in such
case, the Trustee shall use "CUSIP" numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
Section 3.12. Currency of Payment in Respect of Securities.
Unless otherwise specified with respect to any Securities pursuant to Section
3.1, payment of the principal of, premium, if any, and interest, if any, on any
Registered or Bearer Security of such series will be made in Dollars.
ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1. Termination of Company's Obligations Under the
Indenture. (a) This Indenture shall upon a Company Request cease to be of
further effect with respect to Securities of or within any series and any
coupons appertaining thereto (except as to any surviving rights of registration
of transfer or exchange of such Securities and replacement of such Securities
which may have been lost, stolen or mutilated as herein expressly provided for)
and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such
Securities and any coupons appertaining thereto when
(1) either
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(A) all such Securities previously authenticated and
delivered and all coupons appertaining thereto (other than (i)
such coupons appertaining to Bearer Securities surrendered in
exchange for Registered Securities and maturing after such
exchange, surrender of which is not required or has been
waived as provided in Section 3.5, (ii) such Securities and
coupons which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.6, (iii)
such coupons appertaining to Bearer Securities called for
redemption and maturing after the relevant Redemption Date,
surrender of which has been waived as provided in Section 10.6
and (iv) such Securities and coupons for whose payment money
has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 9.3)
have been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of
(i) or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, are
to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount in
the currency in which the Securities of such series are
payable, sufficient to pay and discharge the entire
indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee for cancellation, for
principal, premium, if any, and interest, with respect
thereto, to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligation of the Company to the Trustee and any predecessor
Trustee under Section 6.9, the obligations of
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the Company to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 9.3 shall survive.
Section 4.2. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 9.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium, if any
and any interest for whose payment such money has been deposited with or
received by the Trustee, but such money need not be segregated from other funds
except to the extent required by law.
Section 4.3. Applicability of Defeasance Provisions; Company's
Option to Effect Defeasance or Covenant Defeasance. If pursuant to Section 3.1
provision is made for either or both of (i) defeasance of the Securities of or
within a series under Section 4.4 or (ii) covenant defeasance of the Securities
of or within a series under Section 4.5, then the provisions of such Section or
Sections, as the case may be, together with the provisions of Sections 4.6
through 4.9 inclusive, with such modifications thereto as may be specified
pursuant to Section 3.1 with respect to any Securities, shall be applicable to
such Securities and any coupons appertaining thereto, and the Company may at its
option by Board Resolution, at any time, with respect to such Securities and any
coupons appertaining thereto, elect to have Section 4.4 (if applicable) or
Section 4.5 (if applicable) be applied to such Outstanding Securities and any
coupons appertaining thereto upon compliance with the conditions set forth below
in this Article.
Section 4.4. Defeasance and Discharge. Upon the Company's
exercise of the option specified in Section 4.3 applicable to this Section with
respect to the Securities of or within a series, the Company shall be deemed to
have been discharged from its obligations with respect to such Securities and
any coupons appertaining thereto on the date the conditions set forth in Section
4.6 are satisfied (hereinafter "defeasance"). For this purpose, such defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and any coupons appertaining thereto
which shall thereafter be deemed to be "Outstanding" only for the purposes of
Section 4.7 and the other Sections of this Indenture referred to in clause (ii)
of this Section, and to have satisfied all its other obligations under such
Securities and any coupons appertaining thereto and this Indenture insofar as
such Securities and any coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company, shall on Company Order execute proper
instruments acknowledging the same), except the following which shall survive
until otherwise terminated or discharged hereunder: (i) the rights of Holders of
such Securities and any coupons appertaining thereto to receive, solely from the
trust funds described in Section 4.6(a) and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and interest,
if any, on such Securities or any coupons appertaining thereto when such
payments are due; (ii) the Company's obligations with respect to such Securities
under Sections 3.5, 3.6, 9.2 and 9.3 and with respect to the payment of
additional amounts, if any, payable with respect to such Securities as specified
pursuant to Section 3.1(b)(18); (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (iv) this Article 4. Subject to
compliance with this Article 4, the Company may exercise its option under this
Section notwithstanding the prior exercise of its
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option under Section 4.5 with respect to such Securities and any coupons
appertaining thereto. Following a defeasance, payment of such Securities may not
be accelerated because of an Event of Default.
Section 4.5. Covenant Defeasance. Upon the Company's exercise
of the option specified in Section 4.3 applicable to this Section with respect
to any Securities of or within a series, the Company shall be released from its
obligations under Sections 7.1, 9.4, 9.5, 9.8 and 9.9 and, if specified pursuant
to Section 3.1, its obligations under any other covenant, with respect to such
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 4.6 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with Sections 7.1, 9.4, 9.5, 9.8 and 9.9 or such other
covenant, but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Securities and any coupons appertaining thereto, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or such other covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
Section or such other covenant or by reason of reference in any such Section or
such other covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 5.1(3) or 5.1(7) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities and any
coupons appertaining thereto shall be unaffected thereby.
Section 4.6. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 4.4 or Section
4.5 to any Securities of or within a series and any coupons appertaining
thereto:
(a) (i) The Company shall have deposited or caused to be
deposited irrevocably with the Trustee (or another trustee satisfying
the requirements of Section 6.12 who shall agree to comply with, and
shall be entitled to the benefits of, the provisions of Sections 4.3
through 4.9 inclusive and the last paragraph of Section 9.3 applicable
to the Trustee, for purposes of such Sections also a "Trustee") as
trust funds in trust for the purpose of making the payments referred to
in clauses (x) and (y) of this Section 4.6(a), specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
such Securities and any coupons appertaining thereto, with instructions
to the Trustee as to the application thereof, (A) money in an amount
(in such currency in which such Securities and any coupons appertaining
thereto are then specified as payable at Maturity), or (B) if
Securities of such series are not subject to repayment at the option of
Holders, Government Obligations which through the payment of interest
and principal in respect thereof in accordance with their terms (and
without any regard to reinvestment thereof) will provide, not later
than one day before the due date of any payment referred to in clause
(x) or (y) of this Section 4.6(a), money in an amount or (C) a
combination thereof in an amount, sufficient, in the opinion of a
nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee,
to pay and discharge, and which shall be applied by the Trustee to pay
and discharge, (x) the principal of, premium, if any, and interest, if
any, on such Securities
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and any coupons appertaining thereto on the Stated Maturity of such
principal or installment of principal or interest and (y) any mandatory
sinking fund payments applicable to such Securities on the day on which
such payments are due and payable in accordance with the terms of this
Indenture and such Securities and any coupons appertaining thereto.
Before such a deposit the Company may make arrangements satisfactory to
the Trustee for the redemption of Securities at a future date or dates
in accordance with Article 10 which shall be given effect in applying
the foregoing, in which case, notwithstanding anything in Section 4.4
or Section 4.5 to the contrary, the provisions of such Article 10 shall
survive to the extent they apply to the redemption to be made on such
Redemption Date; and (ii) ninety-one or more days shall have elapsed
from the date of the deposit referred to in clause (i).
(b) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a Default or Event of Default
under, this Indenture or result in a breach or violation of, or
constitute a default under, any other material agreement or instrument
to which the Company is a party or by which it is bound.
(c) In the case of an election under Section 4.4, the Company
shall have delivered to the Trustee an Officer's Certificate and an
Opinion of Counsel to the effect that (i) the Company has received
from, or there has been published by, the Internal Revenue Service a
ruling, or [(ii) since the date of execution of this Indenture, there
has been a change in the applicable federal income tax law], in either
case to the effect that, and based thereon such opinion shall confirm
that, the Holders of such Securities and any coupons appertaining
thereto will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit, defeasance and discharge and will
be subject to federal income tax on the same amount, in the same manner
and at the same times as would have been the case if such deposit,
defeasance and discharge had not occurred.
(d) In the case of an election under Section 4.5, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities and any coupons appertaining
thereto will not recognize income, gain or loss for federal income tax
purposes as a result of such covenant defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such covenant defeasance had
not occurred.
(e) The Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the trust resulting from the deposit
referred to in subparagraph (a) does not constitute an investment
company under the Investment Company Act of 1940.
(f) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance under Section 4.4 or the
covenant defeasance under Section 4.5 (as the case may be) have been
complied with.
(g) Such defeasance or covenant defeasance shall be effected
in compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith
as contemplated by Section 3.1.
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If each of the conditions set forth above shall have been satisfied with respect
to any Securities of or within a series, but the ninety-one day period
referenced in subparagraph (a)(ii) shall not have elapsed, such condition shall
be deemed to be satisfied if the Company shall have delivered to the Trustee an
opinion of qualified nationally recognized bankruptcy counsel acceptable to the
Trustee to the effect that the use by the Trustee of such monies in accordance
with this Indenture would not constitute an avoidable preference or be subject
to the provisions of Section 544 and 547, would not be recoverable under Section
550 and would not be subject to the provisions of Section 362(a), in each case
of Title 11, U.S. Code or similar federal or state laws for the relief of
debtors, if a Default relating to Section 5.1(5) or (6) were to occur.
Section 4.7. Deposited Money and Government Obligations to Be
Held in Trust. Subject to the provisions of the last paragraph of Section 9.3,
all money and Government Obligations (or other property as may be provided
pursuant to Section 3.1) (including the proceeds thereof) deposited with the
Trustee pursuant to Section 4.6 in respect of any Securities of any series and
any coupons appertaining thereto shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and any coupons
appertaining thereto and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, if any, but such money need not be
segregated from other funds except to the extent required by law.
Section 4.8. Repayment to Company. The Trustee (and any Paying
Agent) shall promptly pay to the Company upon Company Request any excess money
or securities held by them at any time.
Section 4.9. Indemnity for Government Obligations. The Company
shall pay, and shall indemnify the Trustee against, any tax, fee or other charge
imposed on or assessed against Government Obligations deposited pursuant to this
Article or the principal and interest received on such Government Obligations.
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1. Events of Default. An "Event of Default" occurs
with respect to the Securities of any series if:
(1) the Company defaults in the payment of interest on any
Security of that series or any coupon appertaining thereto or any
additional amount payable with respect to any Security of that series
as specified pursuant to Section 3.1(b)(18) when the same becomes due
and payable and such default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of or
any premium on any Security of that series when the same becomes due
and payable at its Maturity, or
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in the making of a mandatory sinking fund payment when and as due by
the terms of the Securities of that series;
(3) the Company fails to comply in any material respect with
any of its agreements or covenants in, or any of the provisions of,
this Indenture or in any supplemental indenture or board resolution
referred to therein with respect to any Security of that series (other
than an agreement, covenant or provision for which non-compliance is
elsewhere in this Section specifically dealt with), and such
non-compliance continues for a period of 90 days after there has been
given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 33 1/3% in
principal amount of the Outstanding Securities of the series, a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder;
(4) an event of default as defined in any mortgage, indenture
or instrument under which there may be issued, or by which there may be
secured or evidenced, any indebtedness for borrowed money of the
Company (including this Indenture), whether such indebtedness now
exists or shall hereafter be created, in a principal amount then
outstanding of $20,000,000 or more, shall happen, which default shall
constitute a failure to pay any portion of the principal of, premium,
if any, or interest on such indebtedness when due and payable after the
expiration of any applicable grace period or shall result in such
indebtedness becoming or being declared due and payable prior to the
date on which it would otherwise become due and payable, and such
acceleration shall not be rescinded or annulled and such indebtedness
shall not be paid in full within a period of 30 days; provided,
however, that there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 33 1/3% in aggregate principal amount of the
Outstanding Securities of that series a written notice specifying such
event of default and requiring the Company to cause such acceleration
to be rescinded or annulled or to pay in full such indebtedness and
stating that such notice is a "Notice of Default" hereunder (it being
understood, however, that the Trustee shall not be deemed to have
knowledge of such default under such agreement or instrument unless
either (A) a Responsible Officer of the Trustee shall have actual
knowledge of such default or (B) a Responsible Officer of the Trustee
shall have received written notice thereof from the Company, from any
Holder, from the holder of any such indebtedness or from the trustee
under any such agreement or other instrument); provided, further, that
if, prior to any declaration of acceleration by the Holders of
Securities or the Trustee under Section 5.2 hereof, such default under
such agreement or instrument is remedied or cured by the Company or
waived by the holders of such indebtedness and any acceleration is
rescinded or annulled, then the Event of Default hereunder by reason
thereof shall be deemed likewise to have been thereupon remedied, cured
or waived without further action upon the part of either the Trustee or
any of such Holders;
(5) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case, (B) accepts in writing
any petition filed against it, or otherwise consents to the entry of an
order for relief against it, in an involuntary case, (C) consents to
the appointment of a Custodian of, or the taking of possession by, it
or
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for all or a substantial part of its property; (D) makes a general
assignment for the benefit of its creditors; or (E) admits in writing
of its inability to pay its debts generally as they become due.
(6) an involuntary case within the meaning of any Bankruptcy
Law is commenced against the Company in a court of competent
jurisdiction and continues undismissed for 60 days, or such court
enters an order or decree under any Bankruptcy Law that (A) adjudges
the Company a bankrupt or insolvent, or approves a petition filed by
one or more Persons other than the Company seeking reorganization,
arrangement, adjustment or composition of the Company, (B) is for
relief against the Company in an involuntary case, (C) appoints a
Custodian of the Company or for a substantial part of its property, or
(D) orders the liquidation of the Company, and the order or decree
remains unstayed and in effect for 60 days; or
(7) any other Event of Default provided as contemplated by
Section 3.1 with respect to Securities of that series.
The term "Bankruptcy Law" means Title 11, U.S. Code, or any
similar federal or state law for the relief of debtors, including any other law
relating to bankruptcy, insolvency, reorganization, dissolution, arrangement,
winding-up or readjustment of debts. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
Section 5.2. Acceleration; Rescission and Annulment. If an
Event of Default with respect to the Securities of any series at the time
Outstanding occurs and is continuing, the Trustee or the Holders of at least
33 1/3% in aggregate principal amount of all of the Outstanding Securities of
that series, by written notice to the Company (and, if given by the Holders, to
the Trustee), may declare the principal (or, if the Securities of that series
are Original Issue Discount Securities or Indexed Securities, such portion of
the principal amount as may be specified in the terms of that series) of and
accrued interest, if any, on all the Securities of that series to be due and
payable and upon any such declaration such principal (or, in the case of
Original Issue Discount Securities or Indexed Securities, such specified
amount) and interest, if any, shall be immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of that series, by written notice
to the Trustee, may rescind and annul such declaration and its consequences if
all existing Defaults and Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.7. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if:
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(1) default is made in the payment of any interest on any
Security or coupon, if any, when such interest becomes due and payable
and such default continues for a period of 30 days; or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities or coupons, if any, the whole amount then due and
payable on such Securities for principal, premium, if any, and interest and, to
the extent that payment of such interest shall be legally enforceable, interest
on any overdue principal, premium, if any, and on any overdue interest, at the
rate or rates prescribed therefor in such Securities or coupons, if any, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to secure any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim. The Trustee may
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders of
Securities allowed in any judicial proceedings relating to the Company, its
creditors or its property.
Section 5.5. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto.
Section 5.6. Delay or Omission Not Waiver. No delay or
omission by the Trustee or any Holder of any Securities to exercise any right or
remedy accruing upon an Event of Default shall impair any such right or remedy
or constitute a waiver of or acquiescence in any such Event of Default.
Section 5.7. Waiver of Past Defaults. The Holders of a
majority in aggregate principal amount of outstanding Securities of any series
by written notice to the Trustee may waive on behalf of the Holders of all
Securities of such series a past Default or Event of Default with respect to
that series and its consequences except (i) a Default or Event of Default in the
payment of the principal of, premium, if any, or interest on any Security of
such series or any coupon appertaining thereto or (ii) in respect of a covenant
or provision hereof which pursuant to Section 8.2 cannot be amended or modified
without the consent of the Holder of each Outstanding Security of such series
adversely affected. Upon any such waiver, such Default
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shall cease to exist, and any Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Indenture.
Section 5.8. Control by Majority. The Holders of a majority in
aggregate principal amount of the Outstanding Securities of each series affected
(with each such series voting as a class) shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on it with respect to
Securities of that series; provided, however, that (i) the Trustee may refuse to
follow any direction that conflicts with law or this Indenture, (ii) the Trustee
may refuse to follow any direction that is unduly prejudicial to the rights of
the Holders of Securities of such series not consenting, or that would in the
good faith judgment of the Trustee have a substantial likelihood of involving
the Trustee in personal liability and (iii) the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction.
Section 5.9. Limitation on Suits by Holders. No Holder of any
Security of any series or any coupons appertaining thereto shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) the Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of at least 33-1/3% in aggregate principal
amount of the Outstanding Securities of that series have made a written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or
expense to be, or which may be, incurred by the Trustee in pursuing the
remedy;
(4) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute any such
proceedings; and
(5) during such 60 day period, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that series
have not given to the Trustee a direction inconsistent with such
written request.
No one or more Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such Holders.
Section 5.10. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, but subject to Section
9.2, the right of any Holder of a Security or coupon to receive payment of
principal of, premium, if any, and, subject to Sections 3.5 and 3.7, interest on
the Security, on or after the respective due dates expressed in the Security
(or,
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in case of redemption, on the Redemption Dates), and the right of any Holder of
a coupon to receive payment of interest due as provided in such coupon, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
Section 5.11. Application of Money Collected. If the Trustee
collects any money pursuant to this Article, it shall pay out the money in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal, premium, if any, or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: to the Trustee for amounts due under Section 6.9;
Second: to Holders of Securities and coupons in respect of
which or for the benefit of which such money has been collected for
amounts due and unpaid on such Securities for principal of, premium, if
any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal, premium, if any, and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 5.11. At least 15 days before such
record date, the Trustee shall mail to each holder and the Company a notice that
states the record date, the payment date and the amount to be paid.
Section 5.12. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.13. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6, no
right or remedy herein conferred upon or reserved to the Trustee or the Holders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
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ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities of the
Trustee. (a) Except during the continuance of an Event of Default, the Trustee's
duties and responsibilities under this Indenture shall be governed by Section
315(a) of the Trust Indenture Act.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture, and shall use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
Section 6.2. Rights of Trustee. Subject to the provisions of
the Trust Indenture Act:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any document believed by it to be genuine
and to have been signed or presented by the proper party or parties.
The Trustee need not investigate any fact or matter stated in the
document.
(b) Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
(other than delivery of any Security, together with any coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 3.3, which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution.
(c) Before the Trustee acts or refrains from acting, it may
consult with counsel or require an Officer's Certificate. The Trustee
shall not be liable for any action it takes or omits to take in good
faith in reliance on a Board Resolution, the written advice of counsel
acceptable to the Company and the Trustee, a certificate of an Officer
delivered pursuant to Section 1.2, an Officer's Certificate or an
Opinion of Counsel.
(d) The Trustee may act through agents or attorneys and shall
not be responsible for the misconduct or negligence of any agent or
attorney appointed with due care.
(e) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or
within its rights or powers.
(f) The Trustee shall not be required to expend or risk its
own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
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Section 6.3. Trustee May Hold Securities. The Trustee, any
Paying Agent, any Registrar or any other agent of the Company, in its individual
or any other capacity, may become the owner or pledgee of Securities and coupons
and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may
otherwise deal with the Company, an Affiliate or Subsidiary with the same rights
it would have if it were not Trustee, Paying Agent, Registrar or such other
agent.
Section 6.4. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed upon in writing with
the Company.
Section 6.5. Trustee's Disclaimer. The recitals contained
herein and in the Securities, except the Trustee's certificate of
authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities or any coupon. The Trustee shall not be accountable for the Company's
use of the proceeds from the Securities or for monies paid over to the Company
pursuant to the Indenture.
Section 6.6. Notice of Defaults. If a Default known to the
Trustee occurs and is continuing with respect to the Securities of any series,
the Trustee shall, within 90 days after it occurs, transmit by mail, in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
notice of all such Defaults unless such Default shall have been cured or waived;
provided, however, that in the case of a Default in payment of the principal of
or interest on the Securities of any series, the Trustee may withhold the notice
if and so long as the board of directors, the executive committee or a committee
of its Responsible Officers in good faith determines that withholding such
notice is in the interests of Holders of Securities of that series; and
provided, further, that in the case of any Default of the character specified in
Section 5.1(3) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof.
Section 6.7. Reports by Trustee to Holders. Within 60 days
after each January 15 of each year commencing with the first January 15 after
the first issuance of Securities pursuant to this Indenture, the Trustee shall
transmit by mail to all Holders of Securities as provided in Section 313(c) of
the Trust Indenture Act a brief report dated as of such November 15 if required
by and in compliance with Section 313(a) of the Trust Indenture Act.
Section 6.8. Securityholder Lists. The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Holders of Securities of each series. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee
semiannually on or before the last day of June and December in each year, and at
such other times as the Trustee may request in writing, a list, in such form and
as of such date as the Trustee may reasonably require, containing all the
information in the possession or control of the Registrar, the Company or any of
its Paying Agents other than the Trustee as to the names and addresses of
Holders of Securities of each such series. If there are Bearer Securities of any
series outstanding, even if the Trustee is the Registrar, the Company shall
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furnish to the Trustee such a list containing such information with respect to
Holders of such Bearer Securities only.
Section 6.9. Compensation and Indemnity. (a) The Company shall
pay to the Trustee such compensation as the Company and the Trustee shall from
time to time agree in writing for all services rendered by it hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred by it in connection
with the performance of its duties under this Indenture, except any such expense
as may be attributable to its negligence or bad faith. Such expenses shall
include the reasonable compensation and expenses of the Trustee's agents and
counsel.
(b) The Company shall indemnify the Trustee for, and hold it
harmless against, any loss or liability, damage, claim or reasonable expense
including taxes (other than taxes based upon or determined or measured by the
income of the Trustee) incurred by it arising out of or in connection with its
acceptance or administration of the trust or trusts hereunder, including the
reasonable costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent.
(c) The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through negligence or bad
faith.
(d) To secure the payment obligations of the Company pursuant
to this Section, the Trustee shall have a lien prior to the Securities of any
series on all money or property held or collected by the Trustee, except that
held in trust to pay principal, premium, if any, and interest on particular
Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(5) or Section
5.1(6), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the termination
of this Indenture.
Section 6.10. Replacement of Trustee. (a) The resignation or
removal of the Trustee and the appointment of a successor Trustee shall become
effective only upon the successor Trustee's acceptance of appointment as
provided in Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of any series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any
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court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Holders of a majority in aggregate principal amount of
the Outstanding Securities of any series may remove the Trustee with respect to
that series by so notifying the Trustee and the Company and may appoint a
successor Trustee for such series with the Company's consent.
(d) If at any time:
(1) the Trustee fails to comply with Section 310(b) of the
Trust Indenture Act after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under Section
310(a) of the Trust Indenture Act and shall fail to resign after
written request therefor by the Company or by any Holder of a Security
who has been a bona fide Holder of a Security for at least six months;
or
(3) the Trustee becomes incapable of acting, is adjudged a
bankrupt or an insolvent, or a receiver or public officer takes charge
of the Trustee or its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee with respect to all Securities, or (ii) subject to Section
315(e) of the Trust Indenture Act, any Holder who has been a bona fide Holder of
a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, with respect to Securities of
one or more series, the Company, by or pursuant to a Board Resolution, shall
promptly appoint a successor Trustee with respect to the Securities of that or
those series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 6.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
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all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
Section 6.11. Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee, without further act, deed or
conveyance, shall become vested with all the rights, powers and duties of the
retiring Trustee; but, on the request of the Company or the successor Trustee,
such retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) in case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and such successor Trustee shall execute and
deliver an indenture supplemental hereto wherein such successor Trustee shall
accept such appointment and which (i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, such
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (ii) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (iii) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under the Trust Indenture Act.
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(e) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided for notices to the Holders of Securities in Section 1.6.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust office.
Section 6.12. Eligibility Disqualification. There shall at all
times be a Trustee hereunder which shall be eligible to act as Trustee under
Section 310(a)(1) of the Trust Indenture Act and shall have, at all times, a
combined capital and surplus of at least $75,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or the
requirements of federal, state, territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 6.13. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 6.14. Appointment of Authenticating Agent. The Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue, exchange,
registration of transfer or partial redemption thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument shall
be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, except as may otherwise be provided pursuant to
Section 3.1, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any state or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $1,500,000 and subject to supervision or examination by federal
or state authorities. If such Authenticating Agent publishes reports of
condition at least
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annually, pursuant to law or the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 1.6. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation including reimbursement of its reasonable
expenses for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
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This is one of the Securities of the series described in the within-mentioned
Indenture.
-------------------------------,
as Trustee
By______________________________
as Authenticating Agent
By______________________________
Authorized Signatory
ARTICLE 7
CONSOLIDATION, MERGER OR SALE BY THE COMPANY
Section 7.1. Consolidation, Merger or Sale of Assets
Permitted. The Company shall not consolidate or merge with or into, or transfer
or lease all or substantially all of its assets to, any Person unless:
(1) the Person formed by or surviving any such consolidation
or merger (if other than the Company), or which acquires the Company's
assets, is organized and existing under the laws of the United States,
any state thereof or the District of Columbia;
(2) the Person formed by or surviving any such consolidation
or merger (if other than the Company), or which acquires the Company's
assets, assumes by supplemental indenture all the obligations of the
Company under the Securities and this Indenture; and
(3) immediately after giving effect to the transaction no
Default or Event of Default shall have occurred and be continuing.
The Company shall deliver to the Trustee prior to the proposed
transaction an Officer's Certificate to the foregoing effect and an Opinion of
Counsel stating that the proposed transaction and such supplemental indenture
comply with this Indenture and that all conditions precedent to the consummation
of the transaction under this Indenture have been met.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee,
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at any time and from time to time, may enter into indentures supplemental
hereto, in form reasonably satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default with respect to
all or any series of Securities; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate the
issuance of Bearer Securities (including, without limitation, to
provide that Bearer Securities may be registrable as to principal only)
or to facilitate the issuance of Securities in global form; or
(5) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
as permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11; or
(9) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States (including any of
the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction of principal,
premium, if any, or interest, if any, on Bearer Securities or coupons,
if any; or
(10) to correct or supplement any provision herein which may
be inconsistent with any other provision herein or to make any other
provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect the
interests of any Holder of Securities of any series; or
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(11) to cure any ambiguity or correct any mistake, provided
such action shall not adversely affect the interests of any Holder of
Securities of any series.
Section 8.2. Supplemental Indentures With Consent of Holders.
With the written consent of the Holders of a majority of the aggregate principal
amount of the Outstanding Securities adversely affected by such supplemental
indenture (with the Securities of all series voting as one class), the Company
and the Trustee may enter into an indenture or indentures supplemental hereto to
add any provisions to or to change or eliminate any provisions of this Indenture
or of any other indenture supplemental hereto or to modify the rights of the
Holders of such Securities; provided, however, that without the consent of the
Holder of each Outstanding Security affected thereby, an amendment under this
Section may not:
(1) change the Stated Maturity of the principal of or premium,
if any, or any installment of principal of or premium, if any, or
interest on, any Security, or reduce the principal amount thereof or
the rate of interest thereon or any premium payable upon the redemption
thereof, or change the manner in which the amount of any principal
thereof or premium, if any, or interest thereon is determined, or
reduce the amount of the principal of any Original Issue Discount
Security or Indexed Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.2, or change the currency in which any Securities or any premium or
the interest thereon is payable, change the index, securities or
commodities with reference to which or the formula by which the amount
of principal or any premium or the interest thereon is determined, or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date);
(2) reduce the percentage in principal amount of the
Outstanding Securities affected thereby, the consent of whose Holders
is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver (or compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture;
(3) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section 9.2;
or
(4) make any change in Section 5.7 or this 8.2 except to
increase any percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Holders of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities or such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
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It is not necessary under this Section 8.2 for the Holders to
consent to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
Section 8.3. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities of one or more series shall be set
forth in a supplemental indenture that complies with the Trust Indenture Act as
then in effect.
Section 8.4. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 8.5. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
Section 8.6. Reference in Securities to Supplemental
Indentures. Securities, including any coupons, of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities including any
coupons of any series so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and executed
by the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities including any coupons of such series.
ARTICLE 9
COVENANTS
Section 9.1. Payment of Principal, Premium, if any, and
Interest. The Company covenants and agrees for the benefit of the Holders of
each series of Securities that it will duly and punctually pay the principal of,
premium, if any, and interest on the Securities of that series in accordance
with the terms of the Securities of such series, any coupons appertaining
thereto and this Indenture. An installment of principal, premium, if any, or
interest shall be considered paid on the date it is due if the Trustee or Paying
Agent holds on that date money designated for and sufficient to pay the
installment.
Section 9.2. Maintenance of Office or Agency. If Securities of
a series are issued as Registered Securities, the Company will maintain in each
Place of Payment for any
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series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company will maintain, (i) subject to any laws or regulations
applicable thereto, an office or agency in a Place of Payment for that series
which is located outside the United States where Securities of that series and
related coupons may be presented and surrendered for payment; provided, however,
that if the Securities of that series are listed on any stock exchange located
outside the United States and such stock exchange shall so require, the Company
will maintain a Paying Agent for the Securities of that series in any other
required city located outside the United States, as the case may be, so long as
the Securities of that series are listed on such exchange, and (ii) subject to
any laws or regulations applicable thereto, an office or agency in a Place of
Payment for that series which is located outside the United States, where
Securities of that series may be surrendered for exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of any such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
Unless otherwise specified as contemplated by Section 3.1, no
payment of principal, premium or interest on Bearer Securities shall be made at
any office or agency of the Company in the United States, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or coupon for payment, even if the payment would be credited to an
account located outside the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium or interest on any such Bearer Security shall be
made at the office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, if (but only if) payment in Dollars of the full amount of
such principal, premium or interest, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities (including any coupons, if any)
of one or more series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in each Place of Payment for
Securities (including any coupons, if any) of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Unless otherwise specified as contemplated by Section 3.1, the
Trustee shall initially serve as Paying Agent.
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Section 9.3. Money for Securities Payments to Be Held in
Trust; Unclaimed Money. If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or before each due
date of the principal of, premium, if any, or interest on any of the Securities
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal, premium, if any, or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee in
writing of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of, premium, if any, or interest on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal, premium, if any, or interest on the
Securities; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of any principal, premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium, if any, or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
and coupon, if any, shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in The City of New York, or cause to be mailed to
such Holder, notice that such money remains unclaimed and that, after a date
specified therein, which shall
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not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
Section 9.4. Corporate Existence. Subject to Article 7, the
Company will at all times do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and its
rights and franchises; provided that nothing in this Section 9.4 shall prevent
the abandonment or termination of any right or franchise of the Company if, in
the opinion of the Company (evidenced by a Board Resolution), such abandonment
or termination is in the best interests of the Company and not prejudicial in
any material respect to the Holders of the Securities.
Section 9.5. Insurance. The Company covenants and agrees that
it will maintain, and cause each of its Subsidiaries to maintain, insurance with
responsible and reputable insurance companies or associations in such amounts
and covering such risks as are consistent with sound business practice for
corporations engaged in the same or similar business similarly situated against
loss by fire and the extended coverage perils. In lieu of the foregoing or in
combination therewith, in case of itself or of any one or more of its
Subsidiaries, the Company will maintain or cause to be maintained a system or
systems of self-insurance which will accord with the financially sound and
approved practices of companies owning or operating properties of a similar
character and maintaining such systems. The Trustee shall not be required to see
that such insurance is effected or maintained.
Section 9.6. Reports by the Company. The Company covenants:
(a) to file with the Trustee, within 30 days after the Company
is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended; or,
if the Company is not required to file information, documents or
reports pursuant to either of such Sections, then to file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Securities Exchange Act of
1934, as amended, in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance
with the rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
provided for in this Indenture, as may be required from time to time by
such rules and regulations; and
(c) to transmit to all Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, such
summaries of any information, documents and reports required to
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be filed by the Company pursuant to subsections (a) and (b) of this
Section 9.6, as may be required by the rules and regulations prescribed
from time to time by the Commission.
Section 9.7. Annual Review Certificate; Notice of Defaults or
Events of Default. (a) The Company covenants and agrees to deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company, a
certificate from the principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture. For purposes
of this Section 9.7, such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture.
(b) The Company covenants and agrees to deliver to the Trustee, within a
reasonable time after the Company becomes aware of the occurrence of a Default
or an Event of Default of the character specified in (i) Section 5.1(4) hereof,
or (ii) 5.1(3) hereof, but only as it relates to a Default or Event of Default
in the observance of Sections 9.08 or 9.09 hereof) written notice of the
occurrence of such Default or Event of Default.
Section 9.8. Limitation on Liens. (a) If the Company or any of
its Subsidiaries shall incur, assume or guarantee any indebtedness for borrowed
money secured by a Lien (any such indebtedness being herein referred to as
"Secured Debt") on any Property or assets of the Company or any of its
Subsidiaries, the Company shall secure, or cause such Subsidiary to secure, the
Securities equally and ratably with (or, at the option of the Company, prior to)
such Secured Debt, unless after giving effect thereto the sum, without
duplication, of (i) the aggregate principal amount of all such Secured Debt, and
(ii) all Attributable Debt in respect of Sale and Leaseback Transactions (other
than Sale and Leaseback Transactions as to which the Company would be entitled
to incur Secured Debt, in an amount at least equal to the Attributable Debt in
respect of such Sale and Leaseback Transaction, on the Property to be leased,
without equally and ratably securing the Securities, pursuant to the exclusions
from the computation of Secured Debt contained below in subclauses (i)-(vii) of
Section 9.8(b) and other than Sale and Leaseback Transactions the proceeds of
which have been applied in accordance with clause (b) of Section 9.9), would not
exceed 15% of the Consolidated Net Tangible Assets of the Company.
(b) The restriction of Section 9.8(a) will not apply to, and
there shall be excluded in computing the aggregate amount of Secured
Debt for the purpose of such restriction, indebtedness secured by:
(i) (A) Liens existing as of the date of this Indenture or (B)
Liens relating to a contract that was entered into by the Company or
any Subsidiary prior to the date of this Indenture;
(ii) Liens on any Property existing at the time of acquisition
thereof (whether such acquisition is direct or by acquisition of stock,
assets or otherwise) by the Company or any of its Subsidiaries,
provided that no such Lien extends or shall extend to or cover any
Property other than the Property being acquired and fixed improvements
then or thereafter erected thereon;
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(iii) Liens upon or with respect to any Property (including any
contract rights relating thereto) acquired, constructed, refurbished or
improved by the Company or any of its Subsidiaries (including, but not
limited to, Liens to secure all or any part of the cost of
construction, alteration or repair of any building, equipment,
facility or other improvement on, all or any part of such property,
including any pipeline financing) after the date of this
Indenture which are created, incurred or assumed
contemporaneously with, or within 360 days after, the latest to occur
of the acquisition (whether by acquisition of stock, assets or
otherwise), completion of construction, refurbishment or improvement,
or the commencement of commercial operation, of such Property (or, in
the case of Liens on contract rights, the completion of construction or
the commencement of commercial operation of the facility to which such
contract rights relate, regardless of the date when such contract was
entered into) to secure or provide for the payment of any part of the
purchase price of such Property or the cost of such construction,
refurbishment or improvement; provided, however, that in the case of
any such acquisition, construction, refurbishment or improvement, the
Lien shall relate only to indebtedness reasonably incurred to finance
such acquisition, construction, refurbishment or improvement, and shall
not extend to or cover any other Property other than fixed improvements
then or thereafter existing thereon;
(iv) Liens securing indebtedness owing by any Subsidiary to
the Company or to any other Subsidiary;
(v) Liens in connection with the sale or other transfer in the
ordinary course of business of (A) crude oil, natural gas, other
petroleum hydrocarbons or other minerals in place for a period of time
until, or in an amount such that, the purchaser or other transferee
will realize therefrom a specified amount of money (however determined)
or a specified amount of such minerals, or (B) any other interest in
property of the character commonly referred to as a "production
payment";
(vi) Liens on current assets to secure any indebtedness
maturing (including any extensions or renewals thereof) not more than
one year from the date of the creation of such Lien; and
(vii) Liens for the sole purpose of extending, renewing or
replacing in whole or in part the indebtedness secured thereby referred
to in the foregoing subclauses (i) to (vi), inclusive, or in this
clause (vii); provided, however, that the Liens excluded pursuant to
this clause (vii) shall be excluded only in an amount not to exceed the
principal amount of indebtedness so secured at the time of such
extension, renewal or replacement, and that such extension, renewal or
replacement shall be limited to all or part of the Property subject to
the lien so extended, renewed or replaced (plus refurbishment of or
improvements on or to such Property).
Section 9.9. Limitation on Sale and Leaseback Transactions.
Neither the Company nor any of its Subsidiaries may enter into, assume,
guarantee or otherwise become liable with respect to any Sale and Leaseback
Transaction involving any Property, if the latest to occur of the acquisition,
the completion of construction or the commencement of commercial
-54-
<PAGE>
operation of such Property shall have occurred more than 180 days prior thereto,
unless (a) the Company or such Subsidiary could create Secured Debt secured by
such Property under the restrictions described in Section 9.8 in an amount equal
to the Attributable Debt with respect to the Sale and Leaseback Transaction
without equally and ratably securing the Securities or (b) the Company or such
Subsidiary, within 180 days from the effective date of such Sale and Leaseback
Transaction, applies an amount not less than the greater of (i) the net proceeds
of the sale of such Property leased pursuant to such arrangement or (ii) the
fair value, in the opinion of the Board of Directors, of such Property (as of
the time of entering into such Sale and Leaseback Transaction) to (x) the
retirement of its Funded Debt, including, for this purpose, any currently
maturing portion of such Funded Debt, or (y) the purchase of other property
having a fair value (as of the time of such purchase), in the opinion of the
Board of Directors, at least equal to the fair value, in the opinion of the
Board of Directors, of the Property leased in such Sale and Leaseback
Transaction (as of the time of entering into such Sale and Leaseback
Transaction). This restriction will not apply to any Sale and Leaseback
Transaction (1) between the Company and any Subsidiary or between any
Subsidiaries, (2) entered into prior to the date of this Indenture or (3) for
which, at the time the transaction is entered into, the term of the related
lease to the Company or such Subsidiary of the Property sold pursuant to such
transaction is three years or less.
Section 9.10. Books of Record and Account; Compliance with
Law. (a) The Company will keep, and will cause each Subsidiary to keep, proper
books of record and account, either on a consolidated or individual basis. The
Company shall cause its books of record and account to be examined by one or
more firms of independent public accountants not less frequently than annually.
The Company shall prepare its financial statements in accordance with GAAP.
(b) The Company shall, and shall cause each of its
Subsidiaries to, comply with all statutes, laws, ordinances, or government rules
and regulations to which it is subject, non-compliance with which would
materially adversely affect the business, prospects, earnings, properties,
assets or condition, financial or otherwise, of the Company and its Subsidiaries
taken as a whole.
Section 9.11. Taxes. The Company shall, and shall cause each
of its Subsidiaries to, pay or discharge or cause to be paid or discharged prior
to delinquency all taxes, assessments and governmental levies the non-payment of
which could materially adversely affect the business, prospects, earnings,
properties, assets or condition, financial or otherwise, of the Company and its
Subsidiaries taken as a whole except those taxes, assessments and governmental
levies whose amount, applicability or validity is being contested in good faith
and by appropriate proceedings.
ARTICLE 10
REDEMPTION
Section 10.1. Applicability of Article. Securities (including
coupons, if any) of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance
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<PAGE>
with their terms and (except as otherwise specified as contemplated by Section
3.1 for Securities of any series) in accordance with this Article.
Section 10.2. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities, including coupons, if any,
shall be evidenced by or pursuant to a Board Resolution. In the case of any
redemption at the election of the Company of less than all the Securities or
coupons, if any, of any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities (i) prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture or (ii)
pursuant to an election of the Company which is subject to a condition specified
in the terms of such Securities, the Company shall furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction or condition.
Section 10.3. Selection of Securities to Be Redeemed. Unless
otherwise specified as contemplated by Section 3.1, if less than all the
Securities (including coupons, if any) of a series with the same terms are to be
redeemed, the Trustee, not more than 45 days prior to the redemption date, shall
select the Securities of the series to be redeemed in such manner as the Trustee
shall deem fair and appropriate. The Trustee shall make the selection from
Securities of the series that are Outstanding and that have not previously been
called for redemption and may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities, including
coupons, if any, of that series or any integral multiple thereof) of the
principal amount of Securities, including coupons, if any, of such series of a
denomination larger than the minimum authorized denomination for Securities of
that series. The Trustee shall promptly notify the Company in writing of the
Securities selected by the Trustee for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities (including
coupons, if any) shall relate, in the case of any Securities (including coupons,
if any) redeemed or to be redeemed only in part, to the portion of the principal
amount of such Securities (including coupons, if any) which has been or is to be
redeemed.
Section 10.4. Notice of Redemption. Unless otherwise specified
as contemplated by Section 3.1, notice of redemption shall be given in the
manner provided in Section 1.6 not less than 30 days nor more than 60 days prior
to the Redemption Date to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
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<PAGE>
(3) if less than all the Outstanding Securities of a series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Security or
Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the holder will
receive, without a charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed;
(5) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment for the Redemption Price;
(6) that Securities of the series called for redemption and
all unmatured coupons, if any, appertaining thereto must be surrendered
to the Paying Agent to collect the Redemption Price;
(7) that, on the Redemption Date, the Redemption Price will
become due and payable upon each such Security, or the portion thereof,
to be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date;
(8) that the redemption is for a sinking fund, if such is the
case;
(9) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date
or the amount of any such missing coupon or coupons will be deducted
from the Redemption Price, unless security or indemnity satisfactory to
the Company, the Trustee and any Paying Agent is furnished; and
(10) the CUSIP number, if any, of the Securities.
Notice of redemption of Securities to be redeemed shall be
given by the Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company.
Section 10.5. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, which it may not do
in the case of a sinking fund payment under Article 11, segregate and hold in
trust as provided in Section 9.3) an amount of money in the currency in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.1 for the Securities of such series) sufficient to pay on
the Redemption Date the Redemption Price of, and (unless the Redemption Date
shall be an Interest Payment Date) interest accrued to the Redemption Date on,
all Securities or portions thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any sinking fund
payment obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee
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<PAGE>
for crediting against such payment obligation in accordance with the terms of
such Securities and this Indenture.
Section 10.6. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest and the coupons for any such interest
appertaining to any Bearer Security so to be redeemed, except to the extent
provided below, shall be void. Except as provided in the next succeeding
paragraph, upon surrender of any such Security, including coupons, if any, for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States and its
possessions (except as otherwise provided in Section 9.2) and, unless otherwise
specified as contemplated by Section 3.1, only upon presentation and surrender
of coupons for such interest; and provided, further, that, unless otherwise
specified as contemplated by Section 3.1, installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Bearer Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be payable only at
an office or agency located outside of the United States (except as otherwise
provided pursuant to Section 9.2) and, unless otherwise specified as
contemplated by Section 3.1, only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 10.7. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part at any Place of Payment therefor (with, if the
Company or the Trustee so required, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing), the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
that Security, without service charge, a new Security or securities of the same
series, having the same form, terms and Stated Maturity, in any authorized
denomination equal in
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<PAGE>
aggregate principal amount to the unredeemed portion of the principal amount of
the Security surrendered.
ARTICLE 11
SINKING FUNDS
Section 11.1. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series. The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment," and any payment in excess of such minimum
amount provided for by the terms of Securities of any series is herein referred
to as an "optional sinking fund payment." If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 11.2. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
Section 11.2. Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption) together, in the case of
Bearer Securities of such series, with all unmatured coupons appertaining
thereto and (ii) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of
such series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided that such Securities have not
been previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such Securities
for redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
Section 11.3. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officer's Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 11.2 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 10.3 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 10.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 10.6 and 10.7. This Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts shall
together constitute but one instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
PUBLIC SERVICE COMPANY OF NORTH
CAROLINA, INCORPORATED
By:___________________________________
Title:
[Seal]
Attest:
- ---------------------
Secretary
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, as Trustee
By:___________________________________
Title:
[Seal]
Attest:
- ---------------------
Title:
-60-
<PAGE>
<PAGE>
Reconciliation and tie between Indenture, dated as of [ ], and the Trust
Indenture Act of 1939, as amended.
<TABLE>
<CAPTION>
Trust Indenture Act Indenture
of 1939 Section Section
<S> <C>
310(a)(1)........................................................ 6.12
(a)(2)........................................................ 6.12
(a)(3)........................................................ TIA
(a)(4)........................................................ Not Applicable
(a)(5)........................................................ TIA
(b)........................................................... 6.10; TIA
311(a)........................................................... TIA
(b)........................................................... TIA
(c)........................................................... Not Applicable
312(a)........................................................... 6.8
(b)........................................................... TIA
(c)........................................................... TIA
313(a)........................................................... 6.7; TIA
(b)........................................................... TIA
(c)........................................................... TIA
(d)........................................................... TIA
314(a)........................................................... 9.6; 9.7; TIA
(b)........................................................... Not Applicable
(c)(1)........................................................ 1.2
(c)(2)........................................................ 1.2
(c)(3)........................................................ Not Applicable
(d)........................................................... Not Applicable
(e)........................................................... 1.2; TIA
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Trust Indenture Act Indenture
of 1939 Section Section
<S> <C>
(f)........................................................... TIA
315(a)........................................................... 6.1
(b)........................................................... 6.6
(c)........................................................... 6.1
(d)(1)........................................................ TIA
(d)(2)........................................................ TIA
(d)(3)........................................................ TIA
(e)........................................................... TIA
316(a)(last sentence)............................................ 1.1
(a)(1)(A)..................................................... [5.2]; 5.8
(a)(1)(B)..................................................... 5.7
(b)........................................................... 5.9; 5.10
(c)........................................................... TIA
317(a)(1)........................................................ 5.3
(a)(2)........................................................ 5.4
(b)........................................................... 9.3
318(a)........................................................... 1.11
(b)........................................................... TIA
(c)........................................................... 1.11; TIA
</TABLE>
- -----------------------------
This reconciliation and tie section does not constitute part of the
Indenture.
-2-
Exhibit 4(b)
[Form of Supplemental Indenture]
PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED
and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as Trustee
---------------------
[______] SUPPLEMENTAL INDENTURE
Dated as of [___________], [___]
to
INDENTURE
Dated as of [___________], [ ]
---------------------
[__]% [Senior Debentures] Due [___________]
<PAGE>
[______] SUPPLEMENTAL INDENTURE dated as of [______], [___]
(this "Supplemental Indenture") between PUBLIC SERVICE COMPANY OF NORTH
CAROLINA, INCORPORATED, a corporation duly organized and existing under the laws
of the State of North Carolina (the "Company"), and FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, as trustee (the "Trustee") under the Indenture dated as of
[______], 1996 between the Company and the Trustee (as such Indenture may
heretofore have been amended and supplemented, the "Indenture"). Except as
otherwise expressly provided in this Supplemental Indenture or in the form of
Debenture set forth herein or otherwise clearly required by the context hereof
or thereof, all terms used herein or in said form of Debenture that are defined
in the Indenture shall have the several meanings respectively assigned to them
thereby.
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the future issuance of Securities, to be
issued from time to time in one or more series as might be determined
by the Company under the Indenture, in an unlimited aggregate principal
amount that may be authenticated and delivered thereunder as in the
Indenture provided;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of Securities
to be known as its [__]% [Senior Debentures] Due [____] (the
"Debentures"), the form and substance thereof, and the terms,
provisions and conditions thereof, to be set forth as provided in the
Indenture and this Supplemental Indenture; and
WHEREAS, the Company desires and has requested the Trustee to
join with it in the execution and delivery of this Supplemental
Indenture and all requirements necessary to make this Supplemental
Indenture a valid instrument, in accordance with its terms, and to make
the Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have
been performed and fulfilled, and the execution and delivery hereof
have been in all respects duly authorized.
NOW, THEREFORE, in consideration of the purchase and
acceptance of the Debentures by the holders thereof, and for the purpose of
setting forth, as provided in the Indenture, the form and substance of the
Debentures and the terms, provisions and conditions thereof, the Company
covenants and agrees with the Trustee as follows:
ARTICLE ONE
General Terms and Conditions of the Debentures
SECTION 1.01. There shall be and is hereby authorized a series
of Securities designated the "[___]% [Senior Debentures] Due [____]", the
aggregate principal amount of which shall be limited to $[___], which amount
shall be as set forth in any written order of the Company for the authentication
and delivery of Debentures. Debentures may, upon execution of this Supplemental
Indenture or from time to time thereafter, be executed by the
<PAGE>
Company and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver such Debentures to or upon the written order
of the Company, signed by its Chairman of the Board, its President, or any Vice
President and its Treasurer or an Assistant Treasurer, without any further
action by the Company. The Debentures shall mature and the principal thereof
shall be due and payable together with all accrued and unpaid interest thereon,
on [___________], and shall be issued in the form of registered Debentures
without coupons.
SECTION 1.02. (a) The Debentures shall be issued as Registered
Securities in global form (a "Global Debenture") in an aggregate principal
amount equal to the principal amount of the Debentures, to be registered in the
name of The Depository Trust Company, New York, New York or any successor
registered as a clearing agency under the Exchange Act or other applicable
statute or regulation, as the Depository, or its nominee, and delivered by the
Trustee to the Depository for crediting to the accounts of its participants
pursuant to the instructions of the Company. Payments on the Debentures issued
as a Global Debenture will be made to the Depository.
(b) Pursuant to the provisions of Section 3.5 of the
Indenture, the Global Debenture may be transferred, in whole but not in part, in
the manner provided in Section 3.5 of the Indenture, only by the Depository for
such series to a nominee of the Depository, by a nominee of the Depository to
the Depository or to another nominee of the Depository, or by the Depository or
such nominee to a successor Depository selected or approved by the Company or to
a nominee of such successor Depository.
(c) If at any time the Depository notifies the Company that it
is unwilling or unable to continue as Depository for the Debentures or if at any
time the Depository for the Debentures shall no longer be a clearing agency
registered under the Exchange Act, or other applicable statute or regulation,
and a successor Depository for the Debentures is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, this Section 1.02 shall no longer be applicable
to the Debentures and the Company will execute and, subject to Section 3.5 of
the Indenture, the Trustee will, upon receipt of a Company Order for the
authentication and delivery of certificated Securities of like tenor,
authenticate and deliver Debentures of like tenor in certificated form, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Debenture in exchange for such Global Debenture.
In addition, the Company may at any time determine in its sole discretion that
the Debentures shall no longer be represented by a Global Debenture, and that
the provisions of this Section 1.02 shall no longer apply to the Debentures. In
such event, the Company will execute and, subject to Section 3.5 of the
Indenture, the Trustee, upon receipt of a Company Order evidencing such
determination by the Company, will authenticate and deliver certificated
Debentures in authorized denominations, and in aggregate principal amount equal
to the principal amount of the Global Debenture in exchange for such Global
Debenture. Upon exchange of the Global Debenture for such Debentures in
definitive registered form without coupons, in authorized denominations, the
Global Debenture shall be canceled by the Trustee. Such Debentures in definitive
registered form issued in exchange for the Global Debenture pursuant to this
Section 1.02(c) shall be registered in such names and authorized denominations
as the Depository, pursuant to instructions from its direct or indirect
-2-
<PAGE>
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Debentures to the Depository for delivery to the persons in whose names
such Debentures are so registered.
SECTION 1.03. If, pursuant to the provisions of Section
1.02(c) hereof, the Debentures are issued in certificated form, principal of and
premium, if any, and interest thereon will be payable, the transfer thereof will
be registrable, and Debentures will be exchangeable for Debentures bearing
identical terms and provisions, at the office or agency of the Company in [the
Borough of Manhattan, the City of New York], in any coin or currency of the
United States of America that at the time of payment is legal tender for payment
of public and private debts; provided, however, that payment of interest on any
of the Debentures may be made at the option of the Company by check mailed to
the Holder thereof at such address as shall appear in the Security Register.
SECTION 1.04. Each Debenture will bear interest at the rate of
[___]% per annum from its original date of issuance or from the most recent
Interest Payment Date (as defined below) to which interest has been paid or duly
provided for until the principal thereof becomes due and payable, and any
overdue principal thereof and (to the extent that payment of such interest is
enforceable under applicable law) any overdue installment of interest thereon
will bear interest at the same rate per annum, payable in semi-annually in
arrears on [______] and [________] of each year (each, an "Interest Payment
Date"), commencing on [_____], and at Maturity to the person in whose name such
Debenture or any Predecessor Security thereof is registered, at the close of
business on the Regular Record Date for such interest installment, which shall
be the close of business on the Business Day 15 days preceding an Interest
Payment Date; provided, however, that (i) if any Debenture is authenticated
after a Regular Record Date and before the Interest Payment Date therefor, such
interest installment shall be paid on the next succeeding Interest Payment Date
to the Holder thereof on the Regular Record Date therefor and (ii) interest
payable at Maturity shall be paid to the Person to whom principal is paid. Any
such interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to such Holder on such Regular Record Date by
virtue of having been such Holder, and such defaulted interest may be paid by
the Company, at its election, to the person in whose name the Debenture (or one
or more Predecessor Securities thereof) is registered at the close of business
on a Special Record Date to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be given to the Holders of the
Debentures not less than 10 days prior to such Special Record Date, or in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Debentures may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
[ARTICLE TWO
Redemption of the Debentures
SECTION 2.01. Subject to the terms of Article 10 of the
Indenture, the Company shall have the right to redeem the Debentures, in whole
or in part, from time to time, on or after [_______], at the following
redemption prices (expressed in percentages of
-3-
<PAGE>
the principal amounts to be redeemed) during the twelve-month periods commencing
on of the years indicated:
Year Redemption Price
plus, in each case, any accrued and unpaid interest thereon to the date of such
redemption. Any redemption pursuant to this Section 2.01 will be made upon not
less than 30 nor more than 60 days' notice. If less than all of the Debentures
are to be redeemed pursuant to this Section 2.01, the Debentures will be
redeemed pro rata or by lot or by any other method utilized by the Trustee;
provided, however, that if at the time of redemption the Debentures are in the
form of a Global Debenture, the Depository shall determine by lot the principal
amount of such Debentures held by each holder of Debentures to be redeemed.
SECTION 2.02. The Company may not redeem (or otherwise
purchase) less than all of the Debentures if as a result of such partial
redemption (or purchase) the Debentures would be delisted from any national
securities exchange on which they are then listed, and in such case if the
Company elects to redeem (or otherwise purchase) any of the Debentures, the
Company shall redeem (or otherwise purchase) all of them. No notice of
redemption with respect to the Debentures may state that such redemption shall
be conditional upon the receipt of monies sufficient to pay the principal
thereof or premium, if any, or interest thereon.]
ARTICLE THREE
Form of Debenture
The Debentures and the Trustee's Certificate of Authentication
to be endorsed thereon are to be substantially in the following forms:
[FORM OF FACE OF DEBENTURE]
[[If the Debenture is to be a Global Debenture, insert: This
Debenture is in global form within the meaning of the Indenture hereinafter
referred to and is registered in the name of the Depository or a nominee of the
Depository. Unless and until it is exchanged in whole or in part for Securities
in certificated form, this Security may not be transferred except as a whole by
the Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository or by the Depository or
any such nominee to a successor Depository or a nominee of such successor
Depository.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York) to
the Company or its agent for registration of transfer, exchange or payment, and
any certificate to be issued is registered in
-4-
<PAGE>
the name of Cede & Co. or such other name as requested by an authorized
representative of The Depository Trust Company and any payment hereon is made to
Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.]
PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED
[__]% [Senior Debenture] Due [_____]
No. ________________ CUSIP No.________________
PUBLIC SERVICE COMPANY OF NORTH CAROLINA,
INCORPORATED, a corporation duly organized and existing under the laws of the
State of North Carolina (herein referred to as the "Company," which term
includes any successor corporation under the Indenture referred to hereinafter),
for value received, hereby promises to pay to
___________________________________, or registered assigns, the principal sum of
_____________________________ Dollars on [_________], and to pay interest
thereon from [______] or from the most recent interest payment date (each such
date, an "Interest Payment Date") to which interest has been paid or duly
provided for, semi-annually in arrears on [______] and [______] of each year,
commencing [______], and when the principal hereof shall have become due and
payable, whether at maturity, upon call for redemption, by declaration of
acceleration or otherwise ("Maturity"), at the rate of [__]% per annum until the
principal hereof shall have become so due and payable, and on any overdue
principal and premium, if any, and (to the extent that payment of such interest
is enforceable under applicable law) on any overdue installment of interest at
the same rate per annum. The amount of interest payable on any Interest Payment
Date shall be computed on the basis of a 360-day year of twelve 30-day months.
In the event that any date on which interest is payable on the Securities of
this series is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), with the same force and
effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Debenture
(or one or more Predecessor Securities of the same series) is registered at the
close of business on the Regular Record Date for such interest installment,
which shall be the close of business on the Business Day 15 days preceding an
Interest Payment Date; provided further, however, that (i) if this Debenture is
authenticated after a Regular Record Date and before the Interest Payment Date
therefor, such interest installment shall be paid on the next succeeding
Interest Payment Date to the registered holder thereof on the Regular Record
Date therefor and (ii) interest payable at Maturity shall be paid to the Person
to whom principal is paid. Any such interest installment not punctually paid or
duly provided for shall forthwith cease to be payable to the registered holders
on such Regular Record Date, and may be paid to the person in whose name this
Debenture (or one or more Predecessor Securities of the same series) is
registered at the close of business on a Special Record Date to be fixed by the
Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered holders of Securities
-5-
<PAGE>
of this series not less than 10 days prior to such Special Record Date, or may
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture hereinafter referred to. The principal of
and premium, if any, and interest on this Debenture shall be payable at the
office or agency of the Company maintained for that purpose in [the Borough of
Manhattan, the City of New York], in any coin or currency of the United States
of America that at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest on this Debenture may
be made at the option of the Company by check mailed to the registered holder
hereof at such address as shall appear in the Security Register.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by or on
behalf of the Trustee.
The provisions of this Debenture are contained on the reverse
side hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
-6-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Instrument to
be executed.
Dated:__________________
PUBLIC SERVICE COMPANY OF NORTH
CAROLINA, INCORPORATED
By:_____________________________
Its:
Attest:
- -------------------------------
Secretary
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series described in the
within-mentioned Indenture.
-----------------------------------
as Trustee
By:______________________________
Authorized Signatory
[FORM OF REVERSE OF DEBENTURE]
This [_]% [Senior Debenture] Due [______] (herein sometimes
referred to as this "Debenture") is one of a duly authorized series of
Securities of the Company, specified in the Indenture (as defined below), all
issued or to be issued in one or more series under and pursuant to an Indenture
dated as of [________], 1996 duly executed and delivered between the Company and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA, as trustee (herein referred to as
the "Trustee"), as amended and supplemented [from time to time, including] by
the [______] Supplemental Indenture dated as of [_________] between the Company
and the Trustee (said Indenture as so supplemented being hereinafter referred to
as the "Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the holders of the Securities of this series. By the terms of the Indenture, the
Securities are issuable in series that may vary as
-7-
<PAGE>
to amount, date of maturity, rate of interest and in other respects as in the
Indenture provided. The Securities of this series are limited in aggregate
principal amount as specified in said Supplemental Indenture.
[Subject to the terms of Article 10 of the Indenture, the
Company shall have the right to redeem the Securities of this series at the
option of the Company, without premium or penalty, in whole or in part at any
time on or after [__________], at the following redemption prices (expressed as
percentages of the principal amounts to be redeemed) during the twelve-month
periods commencing on [__________] of the years indicated:
Year Amount
plus, in each case, any accrued but unpaid interest to the date of such
redemption. Any redemption pursuant to this paragraph will be made upon not less
than 30 nor more than 60 days' notice. If less than all of the Securities of
this series are to be so redeemed, the Securities of this series will be
redeemed pro rata or by lot or by any other method utilized by the Trustee;
provided, however, that if at the time of such redemption, the Securities of
this series are in global form, the Depository shall determine by lot the
principal amount thereof held by each holder of Securities of this series to be
redeemed.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures for the unredeemed portion hereof will be issued in
the name of the holder hereof upon the cancellation hereof.]
If an Event of Default with respect to the Securities of this
series shall have occurred and be continuing, the principal of all of such
Securities may be declared, and upon such declaration shall become, due and
payable, in the manner, with the effect and subject to the conditions provided
in the Indenture.
The Indenture contains provisions for defeasance at any time
of the entire indebtedness of this Debenture upon compliance by the Company with
certain conditions set forth therein.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Securities of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of modifying in any manner the rights
of the holders of Securities; provided, however, that no such supplemental
indenture shall, among other things, (i) change the Stated Maturity of any
Securities of any series, or reduce the principal amount thereof, or reduce the
rate of interest thereon, or reduce any premium payable upon the redemption
thereof or the amount of any installment of interest thereon, without the
consent of the holder of each Security so affected or (ii) reduce
-8-
<PAGE>
the aforesaid percentage in principal amount of Securities that is required to
consent to any such supplemental indenture, without the consent of the holders
of each Security then outstanding and affected thereby. The Indenture also
contains provisions permitting the holders of a majority in aggregate principal
amount of the Securities of all series at the time outstanding affected thereby,
on behalf of the holders of the Securities of such series, to waive any past
default in the performance of any of the covenants contained in the Indenture,
or established pursuant to the Indenture with respect to such series, and its
consequences, except (x) a default in the payment of the principal of or
premium, if any, or interest on any of the Securities of such series, or (y) a
default in respect of any other covenant or provision that cannot be modified
without the consent of the holder of each Security of such series adversely
affected thereby, in each case which default may be waived by the unanimous
consent of the holders affected. Any such consent or waiver by the registered
holder of this Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and owners
of this Debenture and of any Security of the same series issued in exchange
herefor or in place hereof (whether by registration of transfer or otherwise),
irrespective of whether or not any notation of such consent or waiver is made
upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium if any, and interest on this Debenture at the time and place and at the
rate and in the money herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, this Debenture is transferable by the registered
holder hereof on the Security Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Company in
[the Borough of Manhattan, the City of New York] accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee duly executed by the registered holder hereof or such holder's
attorney duly authorized in writing, and thereupon one or more new Securities of
the same series of authorized denominations and for the same aggregate principal
amount will be issued to the designated transferee or transferees. No service
charge will be made for any such transfer, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
relation thereto.
Prior to due presentment for registration of this Debenture,
the Company, the Trustee and any agent of the Company or the Trustee may deem
and treat the registered holder hereof as the absolute owner hereof (whether or
not this Debenture shall be overdue) for the purpose of receiving payment of or
on account of the principal hereof and premium, if any, and (subject to the
provisions of the Indenture) interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any agent of the Company or the Trustee
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of
or the premium, if any, or the interest on this Debenture, or for any claim
based hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture, against any incorporator, stockholder, officer or director, past,
present or future, as such, of the Company or of any
-9-
<PAGE>
predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issuance hereof, expressly waived and released.
The Securities of this series are issuable only in registered
form without coupons in denominations of $[1,000] and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations herein
and therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of a different
authorized denomination, as requested by the holder surrendering the same.
All terms used in this Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ARTICLE FOUR
Other Matters
SECTION 4.01. (a) The Company designates [the Trustee] as
Paying Agent and Registrar with respect to the Debentures, and designates [the
Corporate Trust Office of the Trustee] as an office at which (i) the principal
of and premium, if any, and interest on the Debentures shall be payable, (ii)
registration of transfers and exchanges of the Debentures may be effected and
(iii) notices and demands to or upon the Company in respect of the Debentures
and the Indenture may be served.
(b) The Company reserves the right to change, by one or more
supplemental indentures, any such designation made pursuant to this Section
4.01.
SECTION 4.02. The proper officers of the Company may execute,
with the Paying Agent and any Authenticating Agent for the Debentures, one or
more letters of representations and other customary documentation to the
Depository and any supplements or amendments thereto necessary or desirable to
make the Debentures eligible for deposit at the Depository; provided, however,
that the Company reserves the right to terminate any such letter of
representations or other agreement by one or more Officer's Certificates;
provided further, however, that the Company reserves the right to enter into
similar agreements with any other Depository with respect to the Debentures by
one or more Officer's Certificates.
SECTION 4.03. Subject to the provisions of the Indenture
(including, without limitation, Section 4.6 thereof), the provisions of Sections
4.4 and 4.5 of the Indenture shall be applicable to the Debentures.
-10-
<PAGE>
ARTICLE FIVE
Miscellaneous Provisions
SECTION 5.01. The Indenture, as supplemented by this
Supplemental Indenture, is in all respects ratified and confirmed, and this
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 5.02. The recitals herein contained are made by the
Company and not by the Trustee, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representation as to the validity
or sufficiency of this Supplemental Indenture.
SECTION 5.03. This Supplemental 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.
-11-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
PUBLIC SERVICE COMPANY OF
NORTH CAROLINA, INCORPORATED
[Seal]
By:______________________________
Attest:
- ------------------------------
Secretary
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, as Trustee
[Seal]
By:______________________________
Attest: Title:
- ------------------------------
Title:
-12-
<PAGE>
FENNEBRESQUE, CLARK, SWINDELL & HAY
ATTORNEYS AT LAW
NATIONSBANK CORPORATE CENTER TELEPHONE 704-347-3800
SUITE 2900 FACSIMILE 704-347-3838
100 NORTH TRYON STREET
CHARLOTTE, NORTH CAROLINA 28202-4011
EXHIBIT 5
December 20, 1995
Public Service Company of
North Carolina, Incorporated
400 Cox Road
Post Office Box 1398
Gastonia, North Carolina 28053-1398
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We refer to the above-captioned Registration Statement on Form S-3 (the
"Registration Statement") filed by Public Service Company of North Carolina,
Incorporated, a North Carolina corporation (the "Company"), with the Securities
and Exchange Commission under the Securities Act of 1933, as amended (the
"Act"), relating to the proposed issuance and sale of up to $125,000,000
aggregate principal amount of debt securities ("Debt Securities") to be issued
pursuant to the Indenture and any applicable supplemental indenture
(collectively, and as amended, restated, supplemented or otherwise modified and
in effect from time to time, the "Indenture") between the Company and First
Union National Bank of North Carolina, as trustee (the "Trustee").
We have examined the originals or copies, certified or otherwise
identified to our satisfaction, of such corporate records of the Company,
certificates of officers of the Company and public officials and such other
documents as we have deemed necessary as the basis for the opinion hereinafter
expressed. In our examination, we have assumed (i) the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity with the originals of all documents submitted to us as copies and
(ii) due execution and delivery of the Indenture by the Company and the Trustee.
Based on the foregoing, we are of the opinion that:
(1) when the Registration Statement relating to the Debt Securities
filed with the Securities and Exchange Commission under the Act has been
declared effective, no further authorization, consent or approval by any
regulatory authority will be required for the valid issuance and sale of the
Debt Securities (except under the so-called "blue-sky" or securities
<PAGE>
Public Service Company of
North Carolina, Incorporated
Page 2
laws of the several states or by the North Carolina Utilities Commission
("NCUC"), as to the applicability of which we do not express an opinion);
(2) when the Board of Directors of the Company or a committee
designated thereby, or the authorized officers of the Company acting pursuant to
a delegation of authority to them by such a committee, has determined the price
and other terms and conditions relating to the issue and sale of the Debt
Securities, the Debt Securities will have been duly authorized by the Company;
(3) upon the execution and delivery to the Trustee of the duly executed
written order of the Company, the Debt Securities will be issuable under the
terms of the Indenture; and
(4) upon the execution, certification and delivery of the Debt
Securities in accordance with the corporate and governmental authorizations
(including, without limitation, compliance with any applicable orders or rules
of the NCUC or any "blue-sky" or state securities laws) referred to above and in
accordance with the Indenture, the Debt Securities will be valid and legally
binding obligations of the Company.
The opinion expressed in numbered paragraph (4) is qualified to the
extent that enforcement of the rights and remedies in the Indenture and the Debt
Securities referred to therein is subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting the
rights and remedies of creditors and to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
We understand that this opinion is to be used in connection with the
Company's Registration Statement on Form S-3 relating to the Debt Securities to
be filed with the Securities and Exchange Commission under the Act.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the related Prospectus.
Very truly yours,
(signature of Fennebresque, Clark, Swindell & Hay appears here)
<PAGE>
EXHIBIT 12
RATIO OF EARNINGS TO FIXED CHARGES
FOR THE YEARS ENDED SEPTEMBER 30
<TABLE>
<CAPTION>
DESCRIPTION 1995 1994 1993 1992 1991
<S> <C> <C> <C> <C> <C>
Net Income From Continuing Operations............ $21,421,227 $18,465,406 $14,183,536 $16,654,357 $10,479,330
Add:
Federal Income Taxes............................. 10,776,500 8,031,000 5,917,400 8,071,900 4,755,500
State Income Taxes............................... 2,743,800 2,109,000 1,708,100 2,197,000 1,151,400
Earnings Before Taxes............................ $34,941,527 $28,605,406 $21,809,036 $26,923,257 $16,386,230
Interest on Long-Term Debt....................... $11,115,979 $12,060,285 $12,593,076 $10,792,871 $10,300,661
Amortization of Debt Expense..................... 137,122 146,983 146,263 137,756 137,040
Other Interest................................... 1,974,268 1,187,878 1,201,171 2,636,295 3,201,164
Total Fixed Charges.............................. $13,227,369 $13,395,146 $13,940,510 $13,566,922 $13,638,865
Earnings Before Fixed Charges and Taxes.......... $48,168,896 $42,000,552 $35,749,546 $40,490,179 $30,025,095
Ratio of Earnings to Fixed Charges............... 3.64 3.14 2.56 2.98 2.20
</TABLE>
<PAGE>
EXHIBIT 23(A)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our reports dated November 2,
1995, included in the Public Service Company of North Carolina, Incorporated
Form 10-K for the fiscal year ended September 30, 1995 and to all references to
our Firm included in this Registration Statement.
/s/ Arthur Andersen, LLP
Arthur Andersen, LLP
Charlotte, North Carolina
December 20, 1995
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT FOR 1939, AS AMENDED,
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
(Exact name of Trustee as specified in its charter)
230 SOUTH TRYON STREET, 8TH FLOOR
CHARLOTTE, NORTH CAROLINA 28288-1179 56-0900030
(Address of principal executive (Zip Code) (I.R.S. Employer Identification No.)
office)
Public Service Company of North Carolina, Incorporated
(Exact name of obligor as specified in its charter)
North Carolina 56-0233140
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
400 Cox Road
Post Office Box 1398
Gastonia, North Carolina 28053-1398
(Address of principal executive offices) (Zip Code)
SENIOR UNSECURED DEBT
(Title of the indenture securities)
<PAGE>
1. General information.
(a) The following are the names and addresses of each
examining or supervising authority to which the
Trustee is subject:
The Comptroller of the Currency, Washington, D.C.
Federal Reserve Bank of Richmond, Virginia. Federal
Deposit Insurance Corporation, Washington, D.C.
Securities and Exchange Commission, Division of Market
Regulation, Washington, D.C.
(b) The Trustee is authorized to exercise corporate trust
powers.
2. Affiliations with obligor.
The obligor is not an affiliate of the Trustee.
(See Note 2 on Page 5)
3. Voting Securities of the Trustee.
The following information is furnished as to each
class of voting securities of the Trustee:
As of September 30, 1995
Column A Column B
Title of Class Amount Outstanding
Common Stock, par value $3.33-1/3 a share 167,795,141 shares
4. Trusteeships under other indentures.
The Trustee is not a trustee under another
indenture under which any other securities, or
certificates of interest or participation in any other
securities, of the obligor are outstanding.
5. Interlocking directorates and similar relationships with the
obligor or underwriters.
Neither the Trustee nor any of the directors or
executive officers of the Trustee is a director, officer,
partner, employee, appointee or representative of the
obligor or of any underwriter for the obligor.
(See Note 2 on Page 5)
6. Voting securities of the Trustee owned by the obligor or its
officials.
Voting securities of the Trustee owned by the obligor
and its directors, partners, executive officers, taken as a
group, do not exceed one percent of the outstanding voting
securities of the Trustee.
(See Notes 1 and 2 on Page 5)
2
<PAGE>
7. Voting securities of the Trustee owned by underwriters or their
officials.
Voting securities of the Trustee owned by any
underwriter and its directors, partners, and executive
officers, taken as a group, do not exceed one percent of the
outstanding voting securities of the Trustee.
(See Note 2 on Page 5)
8. Securities of the obligor owned or held by the Trustee.
The amount of securities of the obligor which the
Trustee owns beneficially or holds as collateral security for
obligation in default does not exceed one percent of the
outstanding securities of the obligor.
(See Note 2 on Page 5)
9. Securities of underwriters owned or held by the Trustee.
The Trustee does not own beneficially or hold as
collateral security for obligations in default any securities
of an underwriter for the obligor.
(See Note 2 on Page 5)
10. Ownership or holdings by the Trustee of voting securities of
certain affiliates or security holders of the obligor.
The Trustee does not own beneficially or hold as
collateral security for obligations in default voting
securities of a person, who, to the knowledge of the Trustee
(1) owns 10% or more of the voting securities of the obligor
or (2) is an affiliate, other than a subsidiary, of the
obligor.
(See Note 2 on Page 5)
11. Ownership of holders by the Trustee of any securities of a
person owning 50 percent or more of the voting securities of
the obligor.
The Trustee does not own beneficially or hold as
collateral security for obligations in default any securities
of a person who, to the knowledge of Trustee, owns 50
percent or more of the voting securities of the obligor.
(See Note 2 on Page 5)
12. Indebtedness of the obligor to the Trustee.
The obligor is not indebted to the Trustee.
13. Defaults by the obligor.
Not applicable.
3
<PAGE>
14. Affiliations with the underwriters.
No underwriter is an affiliate of the Trustee.
15. Foreign trustee.
Not applicable.
16. List of Exhibits.
(1) Articles of Association of the Trustee as now in
effect. Incorporated to Exhibit (1) filed with Form
T-1 Statement included in Registration Statement No.
33-45946.
(2) Certificate of Authority of the Trustee to commence
business. Incorporated by reference to Exhibit (2)
filed with Form T-1 Statement included in Registration
Statement No. 33-45946.
(3) Authorization of the Trustee to exercise
corporate trust powers, if such authorization is
not contained in the documents specified in
exhibits (1) and (2) above.
(4) By-Laws of the Trustee. Incorporated by reference to
Exhibit (4) filed with Form T-1 Statement included in
Registration Statement No. 33-45946.
(5) Inapplicable.
(6) Consent by the Trustee required by Section 321(b) of
the Trust Indenture Act of 1939. Included at Page 6
of this Form T-1 Statement.
(7) Inaplicable.
(8) Inapplicable.
(9) Inapplicable.
4
<PAGE>
NOTES
1. Since the Trustee is a member of First Union
Corporation, a bank holding company, all of the voting
securities of the Trustee are held by First Union Corporation.
The securities of First Union Corporation are described in Item
3.
2. Inasmuch as this Form T-1 is filed prior to the
ascertainment by the Trustee of all facts on which to base
responsive answers to Items 2, 5, 6, 7, 8, 9, 10 and 11, the
answers to said Items are based on incomplete information.
Items 2, 5, 6, 7, 8, 9, 10 and 11 may, however by considered
as correct unless amended by an amendment to this Form T-1.
5
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the Trustee, FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, a national association organized and existing under the
laws of the United States of America, has duly caused this statement
of eligibility and qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Charlotte,
and State of North Carolina on the 19th day of December , 1995.
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
(Trustee)
BY: (signature of Karen E. Atkinson appears here)
Karen E. Atkinson
EXHIBIT T-1 (6)
CONSENTS OF TRUSTEE
Under section 321(b) of the Trust Indenture Act of
1939 and in connection with the proposed issuance by Public Service
Company of North Carolina, Incorporated of its Senior Unsecured Debt,
First Union National Bank of North Carolina, as the Trustee herein
named, hereby consents that reports of examinations of said Trustee
by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission
upon requests therefor.
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
BY: (signature of Daniel J. Ober appears here)
Daniel J. Ober, Vice President
Dated:
6
