EXHIBIT 4.08
INDENTURE, dated as of January 1, 1996, between PUBLIC SERVICE
COMPANY OF NORTH CAROLINA, INCORPORATED, a North Carolina corporation (the
"Company"), and FIRST UNION NATIONAL BANK OF NORTH CAROLINA, as trustee (the
"Trustee").
RECITALS
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness ("Securities"), to be
issued in one or more series as herein provided and to rank as to priority of
payment equally with all other outstanding unsubordinated and unsecured
indebtedness of the Company.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders (as defined below) thereof, it is mutually covenanted
and agreed as follows for the equal and ratable benefit of the Holders of the
Securities:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1 Definitions. For all purposes of this
Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
GAAP;
(4) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(5) all references to any law shall include such law or any
successor law as amended, supplemented or otherwise modified and in effect from
time to time, and any other law in substance substitute therefor.
"Act" shall have the meaning set forth in Section 1.4(a).
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"Affiliate" of any specified Person means any Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition, "control"
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Paying Agent or Registrar.
"Attributable Debt" means, as to a lease under which any Person
is at the time liable that is required to be classified and accounted for as a
Capitalized Lease Obligation on a Person's balance sheet under GAAP, at any date
as of which the amount thereof is to be determined, the total net amount of rent
required to be paid by such Person under such lease during the remaining primary
term thereof, discounted from the respective due dates thereof to such date at
the rate per annum equal to the interest rate implicit in such lease. The net
amount of rent required to be paid under any such lease for such period shall be
the aggregate amount of rent payable by lessee with respect to such period after
excluding amounts required to be paid on account of maintenance and repairs,
insurance, taxes, assessments, water rates and similar expenses or any amount
required to be paid by such lessee thereunder contingent upon the amount of
revenues (or other similar contingent amounts). In the case of any lease which
is terminable by the lessee upon the payment of a penalty, such net amount shall
also include the amount of such penalty, but no rent shall be considered as
required to be paid under such lease subsequent to the first date upon which it
may be so terminated. Notwithstanding the foregoing, the term Attributable Debt
excludes any amounts in respect of any Sale and Leaseback Transaction which the
Company or a Subsidiary is permitted to enter into in accordance with the last
sentence of Section 9.9 of this Indenture.
"Authenticating Agent" means any authenticating agent appointed
by the Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general circulation,
in the official language of the country of publication or in the English
language, customarily published on each Business Day whether or not published on
Saturdays, Sundays or holidays. Whenever successive publications in an
Authorized Newspaper are required hereunder they may be made (unless otherwise
expressly provided herein) on the same or different days of the week and in the
same or different Authorized Newspapers.
"Bankruptcy Law" shall have the meaning set forth in Section 5.1.
"Bearer Security" means any Security issued hereunder which is
payable to bearer.
"Board" or "Board of Directors" means the Board of Directors of
the Company, or any other duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board of
Directors, certified by the Secretary or an Assistant Secretary of the Company
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of the certificate, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment or
any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
particular location are authorized or obligated by law or executive order to
close.
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"Capitalized Lease Obligation" means, as applied to any Person,
the rental obligation under any lease of any Property (whether real, personal or
mixed) the discounted present value of the rental obligations of such Person as
lessee under which, in conformity with GAAP, is required to be capitalized on
the balance sheet of that Person.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this Indenture such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the party named as the Company in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter means
such successor.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by two Officers, one
of whom must be the Chairman of the Board, the President, the Chief Financial
Officer, the Treasurer, the Assistant Treasurer, the Controller or a
Vice-President of the Company.
"Consolidated Net Tangible Assets" means, with respect to the
Company as of any date, the total assets of the Company as they appear on the
most recently prepared consolidated balance sheet of the Company as of the end
of a fiscal quarter, less (i) all liabilities shown on such consolidated balance
sheet that are classified and accounted for as current liabilities or that
otherwise would be considered current liabilities under GAAP; and (ii) all
assets shown on such consolidated balance sheet that are classified and
accounted for as intangible assets of the Company or that otherwise would be
considered intangible assets under GAAP, including, without limitation,
franchises, licenses, patents and patent applications, trademarks, brand names
and goodwill.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at 230 South Tryon
Street, 9th Floor, Charlotte, North Carolina 28288-1179, Attention: Corporate
Trust Administration.
"Custodian" shall have the meaning set forth in Section 5.1.
"Default" means any event which is, or after notice or passage
of time, or both, would be, an Event of Default.
"Defaulted Interest" shall have the meaning set forth in
Section 3.7(b).
"Depository" when used with respect to the Securities of or
within any series issuable or issued in whole or in part in global form, means
the Person designated as Depository by the Company pursuant to Section 3.1 until
a successor Depository shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person
which is then a Depository hereunder, and if at any time there is more than one
such Person, shall be a collective reference to such Persons.
"Dollar" means the currency of the United States as at the time
of payment is legal tender for the payment of public and private debts.
"Event of Default" shall have the meaning set forth in Section
5.1.
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"Fiscal Year" means the fiscal year of the Company, which as of
the date hereof consists of the 12 month period ending September 30.
"Funded Debt" means all indebtedness for borrowed money owed or
guaranteed by the Company or any of its Subsidiaries and any other indebtedness
which, under GAAP, would appear as indebtedness on the most recent consolidated
balance sheet of the Company, which matures by its terms more than 12 months
from the date of such consolidated balance sheet or which matures by its terms
in less than 12 months but by its terms is renewable or extendible beyond 12
months from the date of such consolidated balance sheet at the option of the
borrower.
"GAAP" means generally accepted accounting principles in the
United States as in effect on the date of application thereof.
"Government Obligations" means securities which are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued
by a bank or trust company subject to federal or state supervision or
examination with a combined capital and surplus of at least $50,000,000, as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depository receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Obligation or
the specific payment of interest on or principal of the Government Obligation
evidenced by such depository receipt.
"Holder" means, with respect to a Bearer Security, a bearer
thereof or of a coupon appertaining thereto and, with respect to a Registered
Security, a person in whose name a Security is registered on the Register.
"Indenture" means this Indenture as originally executed or as
amended or supplemented from time to time and shall include the forms and terms
of particular series of Securities established as contemplated hereunder.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"interest" when used with respect to an Original Issue Discount
Security which by its terms bears interest only after maturity, means interest
payable after maturity.
"Interest Payment Date" when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Lien" means any mortgage, pledge, lien, charge, security
interest, trust arrangement, conditional sale or other title retention agreement
or other encumbrance of any nature whatsoever.
"Maturity" when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
<PAGE>
"Officer" means the Chairman of the Board, the President, any
Vice-President, the Chief Financial Officer, the Treasurer, the Assistant
Treasurer, the Controller, the Secretary or any Assistant Secretary of the
Company.
"Officer's Certificate," when used with respect to the Company,
means a certificate signed by an Officer who must be the Chairman of the Board,
the President, the Chief Financial Officer, the Treasurer, the Assistant
Treasurer, the Controller or a Vice-President of the Company.
"Opinion of Counsel" means a written opinion from the general
counsel of the Company or other legal counsel who is reasonably acceptable to
the Trustee. Such counsel may be an employee of or counsel to the Company.
"Original Issue Discount Security" means any Security which
provides for an amount less than the stated principal amount thereof to be due
and payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
"Outstanding," when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i)Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii)Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities
and any coupons appertaining thereto, provided that, if such Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provisions therefor satisfactory to the
Trustee have been made;
(iii)Securities, except to the extent provided in Sections 4.4 and
4.5, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article 4; and
(iv)Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company;
<PAGE>
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (a) the principal amount of any Original Issue Discount
Securities that may be counted in making such determination or calculation and
that shall be deemed to be Outstanding for such purpose shall be equal to the
amount of principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such determination, upon a declaration of
acceleration of the maturity thereof pursuant to Section 5.2, and (b) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in making such calculation or in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which the Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of, premium, if any, or interest on any Securities on behalf of
the Company.
"Periodic Offering" means an offering of Securities of a series
from time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest or formula for determining the rate or
rates of interest thereon, if any, the Maturity thereof and the redemption
provisions, if any, with respect thereto, are to be determined by the Company
upon the issuance of such Securities.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment," when used with respect to the Securities of
or within any series, means the place or places where the principal of, premium,
if any, and interest on such Securities are payable as specified or contemplated
by Sections 3.1 and 9.2.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"principal amount," when used with respect to any Security,
means the amount of principal, if any, payable in respect thereof at Maturity;
provided, however, that when used with respect to an Indexed Security in any
context other than the making of payments at Maturity, "principal amount" means
the principal face amount of such Indexed Security at original issuance.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Register" shall have the meaning set forth in Section 3.5.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.
"Registrar" shall have the meaning set forth in Section 3.5.
<PAGE>
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of or within any series means the date specified
for that purpose as contemplated by Section 3.1.
"Responsible Officer," when used with respect to the Trustee,
shall mean the chairman or any vice-chairman of the board of directors, the
chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any senior vice
president, any vice president, any assistant vice president, the secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
senior trust officer, any trust officer, the controller, any assistant
controller, or any officer of the Trustee customarily performing functions
similar to those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with a particular subject.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Subsidiary of any Property, whether owned at
the date of this Indenture or thereafter acquired, which has been or is to be
sold or transferred by the Company or such Subsidiary to such Person or to any
other Person to whom funds have been or are to be advanced by such Person on the
security of such Property.
"Secured Debt" shall have the meaning set forth in Section
9.8(a).
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means a Security or Securities
of the Company issued, authenticated and delivered under this Indenture.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or in a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" of any Person means any Person of which at least a
majority of capital stock having ordinary voting power for the election of
directors or other governing body of such Person is owned by such Person
directly or through one or more Subsidiaries of such Person.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in effect on the date of this Indenture, except as provided in Section 8.3.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor Trustee replaces it pursuant to the
applicable provisions of this Indenture, and thereafter means such successor
Trustee and if, at any time, there is more than one Trustee, "Trustee" as used
with respect to the Securities of any series shall mean the Trustee with respect
to the Securities of that series.
"United States" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, the United
States of America (including the States and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.
<PAGE>
"U.S. Person" means, unless otherwise specified with respect to
the Securities of any series as contemplated by Section 3.1, a citizen, national
or resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust, the income of which is subject to
United States federal income taxation regardless of its source.
"Yield to Maturity" means the yield to maturity, calculated by
the Company at the time of issuance of a series of Securities or, if applicable,
at the most recent determination of interest on such series, in accordance with
accepted financial practice.
Section 1.2 Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel
all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to
which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Sections 2.3 and 9.7) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such condition or
covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3 Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
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Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations as to such matters are
erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 1.4 (a)Acts of Holders. 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 First Union National Bank of North Carolina,
230 South Tryon Street, 9th Floor, Charlotte, North Carolina 28288-1179,
Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder, shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at Public Service Company of
North Carolina, Incorporated, 400 Cox Road, P.O. Box 1398, Gastonia,
North Carolina 28053-1398, Attention: Chief Financial Officer, or at any
other address previously furnished in writing to the Trustee by the
Company.
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Section 1.6 Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, (i) if any of the
Securities affected by such event are Registered Securities,
such notice to the Holders thereof shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to each such Holder
affected by such event, at his address as it appears in the
Register, within the time prescribed for the giving of such
notice, and (ii) if any of the Securities affected by such event
are Bearer Securities, notice to the Holders thereof shall be
sufficiently given (unless otherwise herein or in the terms of
such Bearer Securities expressly provided) if published once in
an Authorized Newspaper in New York, New York, and in such other
city or cities, if any, as may be specified as contemplated by
Section 3.1.
In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. In any case where notice
is given to Holders by publication, neither the failure to publish such notice,
nor any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
If by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice as
provided above, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
If it is impossible or, in the opinion of the Trustee, impracticable to give any
notice by publication in the manner herein required, then such publication in
lieu thereof as shall be made with the approval of the Trustee shall constitute
a sufficient publication of such notice.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 1.7 Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.8 Successors and Assigns. All covenants and agreements
in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 1.9 Separability. In case any provision of this
Indenture or the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or
impaired thereby.
<PAGE>
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
<PAGE>
Section 2.1 Forms Generally. The Securities of each series and
the coupons, if any, to be attached thereto shall be in
substantially such form as shall be established by or pursuant
to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with
the rules of any securities exchange or as may, consistently
herewith, be determined by the officers executing such
Securities and coupons, if any, as evidenced by their execution
of the Securities and coupons, if any. Unless otherwise provided
as contemplated in Section 3.1, Securities will be issued only
in registered, certificated form without coupons or in the form
of one or more global securities. If temporary Securities of any
series are issued as permitted by Section 3.4, the form thereof
also shall be established as provided in the preceding sentence.
If the forms of Securities and coupons, if any, of any series
are established by, or by action taken pursuant to, a Board
Resolution, a copy of the Board Resolution together with an
appropriate record of any such action taken pursuant thereto,
including a copy of the approved form of Securities or coupons,
if any, shall be certified by the Corporate Secretary or an
Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by
Section 3.3 for the authentication and delivery of such
Securities.
Unless otherwise specified as contemplated by Section 3.1,
Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
coupons, if any, as evidenced by their execution of such Securities and coupons,
if any.
Section 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series described in the
within-mentioned Indenture.
First Union National Bank of North
Carolina, as Trustee
By___________________________
Authorized Signatory
Section 2.3 Securities in Global Form. If Securities of or
within a series are issuable in whole or in part in global form,
any such Security may provide that it shall represent the
aggregate or specified amount of Outstanding Securities from
time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Securities represented thereby
may from time to time be reduced to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount, or changes in the
rights of Holders, of Outstanding Securities represented
thereby, shall be made in such manner and by such Person or
Persons as shall be specified therein or in the Company Order to
be delivered to the Trustee pursuant to Section 3.3 or 3.4.
Subject to the provisions of Section 3.3 and, if applicable,
Section 3.4, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or
in the applicable Company Order. Any instructions by the Company
with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply
with Section 1.2 hereof and need not be accompanied by an
Opinion of Counsel.
<PAGE>
The provisions of the last paragraph of Section 3.3 shall apply
to any Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 1.2 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last paragraph of Section 3.3.
Notwithstanding the provisions of Sections 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal of,
premium, if any, and interest on any Security in permanent global form shall be
made to the Person or Persons specified therein.
Section 2.4 Form of Legend for Securities in Global Form. Any
Security in global form authenticated and delivered hereunder
shall bear a legend in substantially the following form:
This Security is in global form within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depository
or a nominee of a Depository. Unless and until it is exchanged in whole or in
part for Securities in certificated form, this Security may not be transferred
except as a whole by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the Depository
or by the Depository or any such nominee to a successor Depository or a nominee
of such successor Depository.
ARTICLE 3
THE SECURITIES
Section 3.1 Amount Unlimited; Issuable in Series.
(a) The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more
series.
(b) The following matters shall be established with respect
to each series of Securities issued hereunder (i) by a Board
Resolution, (ii) by action taken pursuant to a Board Resolution
and (subject to Section 3.3) set forth, or determined in the
manner provided, in an Officer's Certificate or (iii) in one or
more indentures supplemental hereto:
(1) the title of the Securities of the series (which title
shall distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (which limit shall not pertain to Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to
Section 3.4, 3.5, 3.6, 8.6, or 10.7);
(3) the date or dates on which the principal of and premium,
if any, on the Securities of the series is payable or the method of
determination thereof;
(4) the rate or rates (which may be fixed, variable or zero)
at which the Securities of the series shall bear interest, if any, or
the method of calculating such rate or rates of interest;
(5) the date or dates from which interest, if any, shall
accrue or the method by which such date or dates shall be determined;
<PAGE>
(6) the Interest Payment Dates on which any such interest
shall be payable and, with respect to Registered Securities, the Regular
Record Date, if any, for the interest payable on any Registered Security
on any Interest Payment Date;
(7) the place or places where the principal of, premium, if
any, and interest, if any, on Securities of the series shall be payable;
(8) the period or periods within which, the price or prices at
which, the currency in which, and the other terms and conditions upon
which, Securities of the series may be redeemed, in whole or in part, at
the option of the Company and, if other than as provided in Section
10.3, the manner in which the particular Securities of such series (if
less than all Securities of such series are to be redeemed) are to be
selected for redemption;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event or at
the option of a Holder thereof and the period or periods within which,
the price or prices at which, and the other terms and conditions upon
which, Securities of the series shall be redeemed or purchased, in whole
or in part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and if other than the
denomination of $5,000, if Bearer Securities, the denominations in which
Securities of the series shall be issuable;
(11) if other than Dollars, the currency for which the
Securities of the series may be purchased or in which the Securities of
the series shall be denominated and/or the currency in which the
principal of, premium, if any, and interest, if any, on the Securities
of the series shall be payable and the particular provisions applicable
thereto in accordance with, in addition to, or in lieu of the provisions
of this Indenture;
(12) if the amount of payments of principal of, premium, if
any, and interest, if any, on the Securities of the series shall be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on a currency
or currencies (including currency unit or units) other than that in
which the Securities of the series are denominated or designated to be
payable), the index, formula or other method by which such amounts shall
be determined;
(13) if the amount of payments of principal, premium, if
any, and interest, if any, on the Securities of the series shall be
determined with reference to an index, formula or other method based on
the prices of securities or commodities, with reference to changes in
the prices of securities or commodities or otherwise by application of a
formula, the index, formula or other method by which such amounts shall
be determined;
(14) if other than the entire principal amount thereof, the
portion of the principal amount of such Securities of the series which
shall be payable upon declaration of acceleration thereof pursuant to
Section 5.2 or the method by which such portion shall be determined;
<PAGE>
(15) if other than as provided in Section 3.7, the Person
to whom any interest on any Registered Security of the series shall be
payable and the manner in which, or the Person to whom, any interest on
any Bearer Securities of the series shall be payable;
(16) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(17) any addition to or modification or deletion of any
Events of Default set forth in Section 5.1 or covenant of the Company
set forth in Article 9 pertaining to the Securities of the series;
(18) under what circumstances, if any, the Company will pay
additional amounts on the Securities of that series held by a Person who
is not a U.S. Person in respect of taxes or similar charges withheld or
deducted and, if so, whether the Company will have the option to redeem
such Securities rather than pay such additional amounts (and the terms
of any such option);
(19) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without interest
coupons), or both, and any restrictions applicable to the offering, sale
or delivery of Bearer Securities and, if other than as provided in
Section 3.5, the terms upon which Bearer Securities of a series may be
exchanged for Registered Securities of the same series and vice versa;
(20) the date as of which any Bearer Securities of the
series and any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the date of
original issuance of the first Security of the series to be issued;
(21) the forms of the Securities and coupons, if any, of
the series;
(22) the applicability, if any, to the Securities of or
within the series of Sections 4.4 and 4.5, or such other means of
defeasance or covenant defeasance as may be specified for the Securities
and coupons, if any, of such series;
(23) if other than the Trustee, the identity of the
Registrar and any Paying Agent;
(24) if the Securities of the series shall be issued in
whole or in part in global form, (i) the Depository for such global
Securities, (ii) whether beneficial owners of interests in any
Securities of the series in global form may exchange such interests for
certificated Securities of such series and of like tenor of any
authorized form and denomination and (iii) if other than as provided in
Section 3.5, the circumstances under which any such exchange may occur;
and
(25) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture) including any
terms which may be required by or advisable under United States laws or
regulations or advisable in connection with the marketing of Securities
of the series.
<PAGE>
(c) All Securities of any one series and coupons, if any,
appertaining to any Bearer Securities of such series shall be
substantially identical except, in the case of Registered
Securities, as to denomination and except as may otherwise be
provided (i) by a Board Resolution, (ii) by action taken
pursuant to a Board Resolution and (subject to Section 3.3) set
forth, or determined in the manner provided, in the related
Officer's Certificate or (iii) in an indenture supplemental
hereto. All Securities of any one series need not be issued at
the same time and, if permitted by the terms of a series as
established pursuant to Section 3.1(b), such series may be
reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
(d) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a
copy of such Board Resolution shall be certified by the
Corporate Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the
Officer's Certificate setting forth, or providing the manner for
determining, the terms of the Securities of such series, and an
appropriate record of any action taken pursuant thereto in
connection with the issuance of any Securities of such series
shall be delivered to the Trustee prior to the authentication
and delivery thereof.
Section 3.2 Denominations. Unless otherwise provided as
contemplated by Section 3.1, any Registered Securities of a
series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
Section 3.3 Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by an
Officer (other than the Corporate Secretary or the Assistant
Secretary) under the Company's seal affixed thereto or
reproduced thereon attested by the Corporate Secretary or the
Assistant Secretary. The signatures of any of these Officers on
the Securities may be manual or facsimile. The coupons, if any,
of Bearer Securities shall bear the facsimile signature of two
Officers.
Securities and coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper Officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time, the Company may deliver
Securities, together with any coupons appertaining thereto, of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities; provided, however, that in the case of Securities offered in a
Periodic Offering, the Trustee shall authenticate and deliver such Securities
from time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions from
the Company or its duly authorized agents, promptly confirmed in writing)
acceptable to the Trustee as may be specified by or pursuant to a Company Order
delivered to the Trustee prior to the time of the first authentication of
Securities of such series.
<PAGE>
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 2.1 and 3.1, in authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to section 315(a) through
(d) of the Trust Indenture Act) shall be fully protected in relying upon, an
Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely
upon on an Opinion of Counsel, substantially to the effect that:
(1) if the forms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by Section
2.1, that such forms have been established in conformity with the
provisions of this Indenture;
(2) if the terms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by Section
3.1, that such terms have been, or in the case of Securities of a series
offered in a Periodic Offering, will be, established in conformity with
the provisions of this Indenture, subject, in the case of Securities
offered in a Periodic Offering, to any conditions specified in such
Opinion of Counsel;
(3) that such Securities together with any coupons appertaining
thereto, when authenticated and delivered by the Trustee and issued by
the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws of general applicability relating to
or affecting the enforcement of creditors' rights and to general equity
principles; and
(4) that all laws and requirements in respect of the
execution and delivery by the Company of such Securities have been complied
with.
Notwithstanding that such form or terms have been so
established, the Trustee shall have the right to decline to authenticate such
Securities if, in the written opinion of counsel to the Trustee, the issue of
such Securities pursuant to this Indenture will adversely affect the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the two
preceding paragraphs, if all of the Securities of any series are not to be
issued at one time, it shall not be necessary to deliver the Officer's
Certificate otherwise required pursuant to Section 3.1 or the Company Order and
Opinion of Counsel otherwise required pursuant to the two preceding paragraphs
in connection with the authentication of each Security of such series if such
documents, with appropriate modifications to cover such future issuances, are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
With respect to Securities of a series offered in a Periodic
Offering, the Trustee may rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 2.1 and 3.1 and this Section, as
applicable, in connection with the first authentication of Securities of such
series, unless and until such Opinion of Counsel or other documents have been
suspended or revoked.
<PAGE>
If the Company shall establish pursuant to Section 3.1 that the
Securities of a series are to be issued in whole or in part in global form, then
the Company shall execute and the Trustee shall, in accordance with this Section
and the Company Order with respect to such series, authenticate and deliver one
or more Securities in global form that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Security or
Securities in global form, (ii) shall be registered, if a Registered Security,
in the name of the Depository for such Security or Securities in global form or
the nominee of such Depository, (iii) shall be delivered by the Trustee to such
Depository or pursuant to such Depository's instruction and (iv) shall bear the
legend set forth in Section 2.4.
Each Depository designated pursuant to Section 3.1 for a
Registered Security in global form must, at the time of its designation and at
all times while it serves as Depository, be a clearing agency registered under
the Securities Exchange Act of 1934 and any other applicable statute or
regulation. The Trustee shall have no responsibility to determine if the
Depository is so registered. Each Depository shall enter into an agreement with
the Trustee governing the respective duties and rights of such Depository and
the Trustee with regard to Securities issued in global form.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 3.1.
No Security or coupon appertaining thereto shall be entitled to
any benefits under this Indenture or be valid or obligatory for any purpose
until authenticated by the manual signature of one of the authorized signatories
of the Trustee or an Authenticating Agent and no coupon shall be valid until the
Security to which it appertains has been so authenticated. Such signature upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered under this Indenture and is
entitled to the benefits of this Indenture. Except as permitted by Section 3.6
or 3.7, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been detached and
cancelled.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9 together with a written statement (which need not comply
with Section 1.2 and need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued and sold by the Company, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
Section 3.4 Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute
and, upon Company Order, the Trustee shall authenticate and
deliver temporary Securities of such series which are printed,
lithographed, typewritten, mimeographed or otherwise produced,
in any authorized denomination, substantially of the tenor and
form, with or without coupons, of the definitive Securities in
lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the
Officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities and
coupons, if any. In the case of Securities of any series, such
temporary Securities may be in global form, representing all or
a portion of the Outstanding Securities of such series.
<PAGE>
Except in the case of temporary Securities in global form, each
of which shall be exchanged in accordance with the provisions thereof, if
temporary Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company pursuant to Section 9.2 in a Place of Payment for such series,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor; provided, however, that no definitive Bearer Security shall be delivered
in exchange for a temporary Registered Security; and provided further that no
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security unless the Trustee shall have received from the person entitled to
receive the definitive Bearer Security a certificate substantially in the form
approved in the Board Resolutions relating thereto and such delivery shall occur
only outside the United States. Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series except as otherwise specified
as contemplated by Section 3.1.
Section 3.5 Registration, Transfer and Exchange. The Company
shall cause to be kept at the Corporate Trust Office of the
Trustee or in any office or agency to be maintained by the
Company in accordance with Section 9.2 in a Place of Payment a
register (the "Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for
the registration of Registered Securities and the registration
of transfers of Registered Securities. The Register shall be in
written form or any other form capable of being converted into
written form within a reasonable time. The Trustee is hereby
appointed "Registrar" for the purpose of registering Registered
Securities and transfers of Registered Securities as herein
provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency maintained pursuant to Section
9.2 in a Place of Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount containing
identical terms and provisions.
Bearer Securities or any coupons appertaining thereto shall be
transferable by delivery.
At the option of the Holder, Registered Securities of any series
(except a Registered Security in global form) may be exchanged for other
Registered Securities of the same series, of any authorized denominations and of
a like aggregate principal amount containing identical terms and provisions,
upon surrender of the Registered Securities to be exchanged at such office or
agency. Whenever any Registered Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is entitled to
receive. Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities may not be issued in exchange for Registered Securities.
<PAGE>
Unless otherwise specified as contemplated by Section 3.1, at
the option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations and of like tenor
and aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company and the
Trustee in an amount equal to the face amount of such missing coupon or coupons,
or the surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 9.2, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside the United States. Notwithstanding the
foregoing, in case any Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series after
the close of business at such office or agency on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon relating
to such Interest Payment Date or proposed date of payment, as the case may be
(or, if such coupon is so surrendered with such Bearer Security, such coupon
shall be returned to the person so surrendering the Bearer Security), and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon, when due in accordance
with the provisions of this Indenture.
Notwithstanding any other provision of this Section, unless and
until it is exchanged in whole or in part for Securities in definitive
certificated form, a Security in global form representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depository for such series to a nominee of such Depository or by a nominee of
such Depository to such Depository or another nominee of such Depository or by
such Depository or any such nominee to a successor Depository for such series or
a nominee of such successor Depository.
If at any time the Depository for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depository
for the Securities of such series or if at any time the Depository for the
Securities of such series shall no longer be eligible under Section 3.3, the
Company shall appoint a successor Depository with respect to the Securities of
such series. If a successor Depository for the Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election pursuant to
Section 3.1(b)(24) shall no longer be effective with respect to the Securities
of such series and the Company shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of certificated Securities of
such series of like tenor, shall authenticate and deliver, Securities of such
series of like tenor in certificated form, in authorized denominations and in an
aggregate principal amount equal to the principal amount of the Security or
Securities of such series of like tenor in global form in exchange for such
Security or Securities in global form.
<PAGE>
The Company may at any time in its sole discretion determine
that Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
If specified by the Company pursuant to Section 3.1 with respect
to a series of Securities, the Depository for such series may surrender a
Security in global form of such series in exchange in whole or in part for
Securities of such series in certificated form on such terms as are acceptable
to the Company and such Depository. Thereupon, the Company shall execute, and
the Trustee shall authenticate and deliver, without service charge,
(i) to each Person specified by such Depository a new certificated
Security or Securities of the same series of like tenor, of any
authorized denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Security in global form; and
(ii) to such Depository a new Security in global form of like
tenor in a denomination equal to the difference, if any, between the
principal amount of the surrendered Security in global form and the
aggregate principal amount of certificated Securities delivered to
Holders thereof.
Upon the exchange of a Security in global form for Securities in
certificated form, such Security in global form shall be cancelled by the
Trustee. Unless expressly provided with respect to the Securities of any series
that such Security may be exchanged for Bearer Securities, Securities in
certificated form issued in exchange for a Security in global form pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depository for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.
Whenever any Securities are surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or upon
any exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company,
the Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Registrar and
the Trustee duly executed by the Holder thereof or his attorney duly authorized
in writing.
<PAGE>
No service charge shall be made for any registration of transfer
or for any exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration or transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4 or 10.7 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of, or exchange any Securities for a period beginning at the opening of
business 15 days before any selection for redemption of Securities of like tenor
and of the series of which such Security is a part and ending at the close of
business on the earliest date on which the relevant notice of redemption is
deemed to have been given to all Holders of Securities of like tenor and of such
series to be redeemed; (ii) to register the transfer of or exchange any
Registered Security so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part; or (iii) to exchange
any Bearer Security so selected for redemption, except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor; provided that such Registered Security shall be simultaneously
surrendered for redemption.
Section 3.6 Replacement Securities. If a mutilated Security or a
Security with a mutilated coupon appertaining to it is
surrendered to the Trustee, together with, in proper cases, such
security or indemnity as may be required by the Company or the
Trustee to save each of them harmless, the Company shall execute
and the Trustee shall authenticate and deliver a replacement
Registered Security, if such surrendered Security was a
Registered Security, or a replacement Bearer Security with
coupons corresponding to the coupons appertaining to the
surrendered Security, if such surrendered Security was a Bearer
Security, of the same series and date of maturity, if the
Trustee's requirements are met.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or Security with a destroyed, lost or stolen coupon and (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security or coupon has been acquired by a bona fide purchaser,
the Company shall execute and the Trustee shall authenticate and deliver in lieu
of any such destroyed, lost or stolen Security or in exchange for the Security
to which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a replacement Registered Security, if
such Holder's claim appertains to a Registered Security, or a replacement Bearer
Security with coupons corresponding to the coupons appertaining to the
destroyed, lost or stolen Bearer Security or the Bearer Security to which such
lost, destroyed or stolen coupon appertains, if such Holder's claim appertains
to a Bearer Security, of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding with coupons corresponding to the coupons, if any, appertaining to
the destroyed, lost or stolen Security.
In case any such mutilated, destroyed, lost or stolen Security
or coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new security or coupon, pay such Security
or coupon; provided, however, that payment of principal of and any premium or
interest on Bearer Securities shall, except as otherwise provided in Section
9.2, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 3.1, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
<PAGE>
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.
Unless otherwise provided as contemplated by Section 3.1,
interest, if any, on any Registered Security which is payable,
and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such
interest at the office or agency maintained for such purpose
pursuant to 9.2; provided, however, that at the option of the
Company, interest on any series of Registered Securities that
bear interest may be paid (i) by check mailed to the address of
the Person entitled thereto as it shall appear on the Register
of Holders of Securities of such series or (ii) by wire transfer
to an account maintained by the Person entitled thereto as
specified in the Register of Holders of Securities of such
series.
Unless otherwise provided as contemplated by Section 3.1, (i)
interest, if any, on Bearer securities shall be paid only against presentation
and surrender of the coupons for such interest installments as are evidenced
thereby as they mature and (ii) original issue discount, if any, on Bearer
Securities shall be paid only against presentation and surrender of such
Securities; in either case at the office of a Paying Agent located outside the
United States, unless the Company shall have otherwise instructed the Trustee in
writing, provided that any such instruction for payment in the United States
does not cause any Bearer Security to be treated as a "registration-required
obligation" under United States laws and regulations. The interest, if any, on
any temporary Bearer Security shall be paid, as to any installment of interest
evidenced by a coupon attached thereto only upon presentation and surrender of
such coupon and, as to other installments of interest, only upon presentation of
such Security for notation thereon of the payment of such interest. If at the
time a payment of principal of or interest, if any, on a Bearer Security or
coupon shall become due, the payment of the full amount so payable at the office
or offices of all the Paying Agents outside the United States is illegal or
effectively precluded because of the imposition of exchange controls or other
similar restrictions on the payment of such amount in Dollars, then the Company
may instruct the Trustee in writing to make such payments at a Paying Agent
located in the United States, provided that provision for such payment in the
United States would not cause such Bearer Security to be treated as a
"registration-required obligation" under United States laws and regulations.
<PAGE>
(b) Unless otherwise provided as contemplated by Section 3.1,
any interest on Registered Securities of any series which is
payable, but is not punctually paid or duly provided for, on any
interest payment date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holders on the relevant
Regular Record Date by virtue of their having been such Holders,
and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of such Defaulted
Interest to the Persons in whose names such Registered Securities (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause (1) provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of such Registered Securities at his address as it
appears in the Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names such
Registered Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of such Defaulted Interest to
the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered at the close of
business on a specified date in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Registered Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause (2), such manner
of payment shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and
Section 3.5, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other
Security.
<PAGE>
Section 3.8 Persons Deemed Owners. Prior to due presentment of
any Registered Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the
purpose of receiving payment of principal of, premium, if any,
and (subject to Section 3.7) interest on such Registered
Security and for all other purposes whatsoever, whether or not
such Registered Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Bearer Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company or
the Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Security in global form,
nothing herein shall prevent the Company or the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any Depository (or its nominee), as a
Holder, with respect to such Security in global form or impair, as between such
Depository and owners of beneficial interests in such Security in global form,
the operation of customary practices governing the exercise of the rights of
such Depository (or its nominee) as Holder of such Security in global form.
Section 3.9 Cancellation. The Company at any time may deliver
Securities and coupons to the Trustee for cancellation. The
Registrar and any Paying Agent shall forward to the Trustee any
Securities and coupons surrendered to them for replacement, for
registration of transfer, or for exchange or payment. The
Trustee shall cancel all Securities and coupons surrendered for
replacement, for registration of transfer, or for exchange,
payment, redemption or cancellation and may, but shall not be
required to, dispose of cancelled Securities and coupons and
issue a certificate of destruction to the Company. The Company
may not issue new Securities to replace Securities that it has
paid or delivered to the Trustee for cancellation.
Section 3.10 Computation of Interest. Except as otherwise
specified as contemplated by Section 3.1, interest on the
Securities of each series shall be computed on the basis of a
360-day year of twelve 30-day months.
Section 3.11 CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use),
and, in such case, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that
any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
Section 3.12 Currency of Payment in Respect of Securities.
Unless otherwise specified with respect to any Securities
pursuant to Section 3.1, payment of the principal of, premium,
if any, and interest, if any, on any Registered or Bearer
Security of such series will be made in Dollars.
<PAGE>
ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1 Termination of Company's Obligations Under the
Indenture. This Indenture shall upon a Company Request cease to
be of further effect with respect to Securities of or within any
series and any coupons appertaining thereto (except as to any
surviving rights of registration of transfer or exchange of such
Securities and replacement of such Securities which may have
been lost, stolen or mutilated as herein expressly provided for)
and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of
this Indenture with respect to such Securities and any coupons
appertaining thereto when
(1) either
(A) all such Securities previously authenticated and delivered and all
coupons appertaining thereto (other than (i) such coupons appertaining to Bearer
Securities surrendered in exchange for Registered Securities and maturing after
such exchange, surrender of which is not required or has been waived as provided
in Section 3.5, (ii) such Securities and coupons which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section 3.6, (iii)
such coupons appertaining to Bearer Securities called for redemption and
maturing after the relevant Redemption Date, surrender of which has been waived
as provided in Section 10.6 and (iv) such Securities and coupons for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 9.3) have been delivered to the Trustee for
cancellation; or
(b) all Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust for the purpose an amount in the
currency in which the Securities of such series are payable,
sufficient to pay and discharge the entire indebtedness on such
Securities and such coupons not theretofore delivered to the
Trustee for cancellation, for principal, premium, if any, and
interest, with respect thereto, to the date of such deposit (in
the case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
<PAGE>
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligation of the Company to the Trustee and any predecessor
Trustee under Section 6.9, the obligations of the Company to any Authenticating
Agent under Section 6.14 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 4.2 and the last paragraph of Section 9.3 shall
survive.
Section 4.2 Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 9.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held
in trust and applied by it, in accordance with the provisions of
the Securities, the coupons and this Indenture, to the payment,
either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal,
premium, if any and any interest for whose payment such money
has been deposited with or received by the Trustee, but such
money need not be segregated from other funds except to the
extent required by law.
Section 4.3 Applicability of Defeasance Provisions; Company's
Option to Effect Defeasance or Covenant Defeasance. If pursuant
to Section 3.1 provision is made for either or both of (i)
defeasance of the Securities of or within a series under Section
4.4 or (ii) covenant defeasance of the Securities of or within a
series under Section 4.5, then the provisions of such Section or
Sections, as the case may be, together with the provisions of
Sections 4.6 through 4.9 inclusive, with such modifications
thereto as may be specified pursuant to Section 3.1 with respect
to any Securities, shall be applicable to such Securities and
any coupons appertaining thereto, and the Company may at its
option by Board Resolution, at any time, with respect to such
Securities and any coupons appertaining thereto, elect to have
Section 4.4 (if applicable) or Section 4.5 (if applicable) be
applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set
forth below in this Article.
<PAGE>
Section 4.4 Defeasance and Discharge. Upon the Company's
exercise of the option specified in Section 4.3 applicable to
this Section with respect to the Securities of or within a
series, the Company shall be deemed to have been discharged from
its obligations with respect to such Securities and any coupons
appertaining thereto on the date the conditions set forth in
Section 4.6 are satisfied (hereinafter "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed
to have paid and discharged the entire indebtedness represented
by such Securities and any coupons appertaining thereto which
shall thereafter be deemed to be "Outstanding" only for the
purposes of Section 4.7 and the other Sections of this Indenture
referred to in clause (ii) of this Section, and to have
satisfied all its other obligations under such Securities and
any coupons appertaining thereto and this Indenture insofar as
such Securities and any coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Company, shall
on Company Order execute proper instruments acknowledging the
same), except the following which shall survive until otherwise
terminated or discharged hereunder: (i) the rights of Holders of
such Securities and any coupons appertaining thereto to receive,
solely from the trust funds described in Section 4.6(a) and as
more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest, if any, on such
Securities or any coupons appertaining thereto when such
payments are due; (ii) the Company's obligations with respect to
such Securities under Sections 3.5, 3.6, 9.2 and 9.3 and with
respect to the payment of additional amounts, if any, payable
with respect to such Securities as specified pursuant to Section
3.1(b)(18); (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (iv) this Article 4.
Subject to compliance with this Article 4, the Company may
exercise its option under this Section notwithstanding the prior
exercise of its option under Section 4.5 with respect to such
Securities and any coupons appertaining thereto. Following a
defeasance, payment of such Securities may not be accelerated
because of an Event of Default.
Section 4.5 Covenant Defeasance. Upon the Company's exercise of
the option specified in Section 4.3 applicable to this Section
with respect to any Securities of or within a series, the
Company shall be released from its obligations under Sections
7.1, 9.4, 9.5, 9.8 and 9.9 and, if specified pursuant to Section
3.1, its obligations under any other covenant, with respect to
such Securities and any coupons appertaining thereto on and
after the date the conditions set forth in Section 4.6 are
satisfied (hereinafter, "covenant defeasance"), and such
Securities and any coupons appertaining thereto shall thereafter
be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with Sections
7.1, 9.4, 9.5, 9.8 and 9.9 or such other covenant, but shall
continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means
that, with respect to such Securities and any coupons
appertaining thereto, the Company may omit to comply with and
shall have no liability in respect of any term, condition or
limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant or
by reason of reference in any such Section or such other
covenant to any other provision herein or in any other document
and such omission to comply shall not constitute a Default or an
Event of Default under Section 5.1(3) or 5.1(7) or otherwise, as
the case may be, but, except as specified above, the remainder
of this Indenture and such Securities and any coupons
appertaining thereto shall be unaffected thereby.
Section 4.6 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 4.4
or Section 4.5 to any Securities of or within a series and any
coupons appertaining thereto:
<PAGE>
(a)(i) The Company shall have deposited or caused to be
deposited irrevocably with the Trustee (or another trustee
satisfying the requirements of Section 6.12 who shall agree to
comply with, and shall be entitled to the benefits of, the
provisions of Sections 4.3 through 4.9 inclusive and the last
paragraph of Section 9.3 applicable to the Trustee, for purposes
of such Sections also a "Trustee") as trust funds in trust for
the purpose of making the payments referred to in clauses (x)
and (y) of this Section 4.6(a), specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such
Securities and any coupons appertaining thereto, with
instructions to the Trustee as to the application thereof, (A)
money in an amount (in such currency in which such Securities
and any coupons appertaining thereto are then specified as
payable at Maturity), or (B) if Securities of such series are
not subject to repayment at the option of Holders, Government
Obligations which through the payment of interest and principal
in respect thereof in accordance with their terms (and without
any regard to reinvestment thereof) will provide, not later than
one day before the due date of any payment referred to in clause
(x) or (y) of this Section 4.6(a), money in an amount or (C) a
combination thereof in an amount, sufficient, in the opinion of
a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee to pay and discharge, (x) the
principal of, premium, if any, and interest, if any, on such
Securities and any coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or
interest and (y) any mandatory sinking fund payments applicable
to such Securities on the day on which such payments are due and
payable in accordance with the terms of this Indenture and such
Securities and any coupons appertaining thereto. Before such a
deposit the Company may make arrangements satisfactory to the
Trustee for the redemption of Securities at a future date or
dates in accordance with Article 10 which shall be given effect
in applying the foregoing, in which case, notwithstanding
anything in Section 4.4 or Section 4.5 to the contrary, the
provisions of such Article 10 shall survive to the extent they
apply to the redemption to be made on such Redemption Date; and
(ii) ninety-one or more days shall have elapsed from the date of
the deposit referred to in clause (i).
(b) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a Default or Event of
Default under, this Indenture or result in a breach or violation
of, or constitute a default under, any other material agreement
or instrument to which the Company is a party or by which it is
bound.
(c) 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.
<PAGE>
(d) In the case of an election under Section 4.5, the
Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Securities and
any coupons appertaining thereto will not recognize income, gain
or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance had not
occurred.
(e) The Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the trust resulting from the deposit referred to
in subparagraph (a) does not constitute an investment company under the
Investment Company Act of 1940.
(f) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 4.4 or the covenant defeasance
under Section 4.5 (as the case may be) have been complied with.
(g) Such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith as
contemplated by Section 3.1.
If each of the conditions set forth above shall have been satisfied with respect
to any Securities of or within a series, but the ninety-one day period
referenced in subparagraph (a)(ii) shall not have elapsed, such condition shall
be deemed to be satisfied if the Company shall have delivered to the Trustee an
opinion of qualified nationally recognized bankruptcy counsel acceptable to the
Trustee to the effect that the use by the Trustee of such monies in accordance
with this Indenture would not constitute an avoidable preference or be subject
to the provisions of Section 544 and 547, would not be recoverable under Section
550 and would not be subject to the provisions of Section 362(a), in each case
of Title 11, U.S. Code or similar federal or state laws for the relief of
debtors, if a Default relating to Section 5.1(5) or (6) were to occur.
Section 4.7 Deposited Money and Government Obligations to Be Held in Trust.
Subject to the provisions of the last paragraph of Section 9.3, all
money and Government Obligations (or other property as may be
provided pursuant to Section 3.1)(including the proceeds thereof)
deposited with the Trustee pursuant to Section 4.6 in respect of any
Securities of any series and any coupons appertaining thereto shall
be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any coupons appertaining thereto
and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities and
any coupons appertaining thereto of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, if
any, but such money need not be segregated from other funds except
to the extent required by law.
Section 4.8 Repayment to Company. The Trustee (and any
Paying Agent) shall promptly pay to the Company
upon Company Request any excess money or
securities held by them at any time.
Section 4.9 Indemnity for Government Obligations. The
Company shall pay, and shall indemnify the
Trustee against, any tax, fee or other charge
imposed on or assessed against Government
Obligations deposited pursuant to this Article or
the principal and interest received on such
Government Obligations.
<PAGE>
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1 Events of Default. An "Event of Default" occurs
with respect to the Securities of any series if:
(1) the Company defaults in the payment of interest
on any Security of that series or any coupon appertaining
thereto or any additional amount payable with respect to
any Security of that series as specified pursuant to
Section 3.1(b)(18) when the same becomes due and payable
and such default continues for a period of 30 days;
(2) the Company defaults in the payment of the
principal of or any premium on any Security of that series
when the same becomes due and payable at its Maturity, or
in the making of a mandatory sinking fund payment when and
as due by the terms of the Securities of that series;
(3) the Company fails to comply in any material
respect with any of its agreements or covenants in, or any
of the provisions of, this Indenture or any supplemental
indenture or board resolution referred to therein with
respect to any Security of that series (other than an
agreement, covenant or provision for which non-compliance
is elsewhere in this Section specifically dealt with), and
such non-compliance continues for a period of 90 days
after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 33 1/3% in
principal amount of the Outstanding Securities of the
series, a written notice specifying such default or breach
and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder;
<PAGE>
(4) an event of default as defined in any mortgage,
indenture or instrument under which there may be issued,
or by which there may be secured or evidenced, any
indebtedness for borrowed money of the Company (including
this Indenture), whether such indebtedness now exists or
shall hereafter be created, in a principal amount then
outstanding of $20,000,000 or more, shall happen, which
default shall constitute a failure to pay any portion of
the principal of, premium, if any, or interest on such
indebtedness when due and payable after the expiration of
any applicable grace period or shall result in such
indebtedness becoming or being declared due and payable
prior to the date on which it would otherwise become due
and payable, and such acceleration shall not be rescinded
or annulled and such indebtedness shall not be paid in
full within a period of 30 days; provided, however, that
there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 33 1/3% in
aggregate principal amount of the Outstanding Securities
of that series a written notice specifying such event of
default and requiring the Company to cause such
acceleration to be rescinded or annulled or to pay in full
such indebtedness and stating that such notice is a
"Notice of Default" hereunder (it being understood,
however, that the Trustee shall not be deemed to have
knowledge of such default under such agreement or
instrument unless either (A) a Responsible Officer of the
Trustee shall have actual knowledge of such default or (B)
a Responsible Officer of the Trustee shall have received
written notice thereof from the Company, from any Holder,
from the holder of any such indebtedness or from the
trustee under any such agreement or other instrument);
provided, further, that if, prior to any declaration of
acceleration by the Holders of Securities or the Trustee
under Section 5.2 hereof, such default under such
agreement or instrument is remedied or cured by the
Company or waived by the holders of such indebtedness and
any acceleration is rescinded or annulled, then the Event
of Default hereunder by reason thereof shall be deemed
likewise to have been thereupon remedied, cured or waived
without further action upon the part of either the Trustee
or any of such Holders;
(5) the Company pursuant to or within the meaning of
any Bankruptcy Law (A) commences a voluntary case, (B)
accepts in writing any petition filed against it, or
otherwise consents to the entry of an order for relief
against it, in an involuntary case, (C) consents to the
appointment of a Custodian of, or the taking of possession
by, it or for all or a substantial part of its property;
(D) makes a general assignment for the benefit of its
creditors; or (E) admits in writing of its inability to
pay its debts generally as they become due.
(6) an involuntary case within the meaning of any
Bankruptcy Law is commenced against the Company in a court
of competent jurisdiction and continues undismissed for 60
days, or such court enters an order or decree under any
Bankruptcy Law that (A) adjudges the Company a bankrupt or
insolvent, or approves a petition filed by one or more
Persons other than the Company seeking reorganization,
arrangement, adjustment or composition of the Company, (B)
is for relief against the Company in an involuntary case,
(C) appoints a Custodian of the Company or for a
substantial part of its property, or (D) orders the
liquidation of the Company, and the order or decree
remains unstayed and in effect for 60 days; or
(7) any other Event of Default provided as
contemplated by Section 3.1 with respect to Securities of
that series.
The term "Bankruptcy Law" means Title 11, U.S. Code, or any
similar federal or state law for the relief of debtors, including any other law
relating to bankruptcy, insolvency, reorganization, dissolution, arrangement,
winding-up or readjustment of debts. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
<PAGE>
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 principalamount as may be specified in the terms
of that series) of and accrued interest, if any, on all the
Securities of that series to be due and payable and upon any
such declaration such principal (or, in the case of Original
Issue Discount Securities or Indexed Securities, such specified
amount) and interest, if any, shall be immediately due and
payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Trustee, may
rescind and annul such declaration and its consequences if all existing Defaults
and Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 5.7. No such rescission shall affect any subsequent default
or impair any right consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if:
(1) default is made in the payment of any interest on
any Security or coupon, if any, when such interest becomes
due and payable and such default continues for a period of
30 days; or
(2) default is made in the payment of the principal
of (or premium, if any, on) any Security at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities or coupons, if any, the whole amount then due and
payable on such Securities for principal, premium, if any, and interest and, to
the extent that payment of such interest shall be legally enforceable, interest
on any overdue principal, premium, if any, and on any overdue interest, at the
rate or rates prescribed therefor in such Securities or coupons, if any, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to secure any other proper remedy.
Section 5.4 Trustee May File Proofs of Claim. The Trustee
may file such proofs of claim and other papers or
documents as may be necessary or advisable in
order to have the claims of the Trustee and the
Holders of Securities allowed in any judicial
proceedings relating to the Company, its
creditors or its property.
Section 5.5 Trustee May Enforce Claims Without Possession
of Securities. All rights of action and claims
under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without
the possession of any of the Securities or the
production thereof in any proceeding relating
thereto.
<PAGE>
Section 5.6 Delay or Omission Not Waiver. No delay or
omission by the Trustee or any Holder of any
Securities to exercise any right or remedy
accruing upon an Event of Default shall impair
any such right or remedy or constitute a waiver
of or acquiescence in any such Event of Default.
Section 5.7 Waiver of Past Defaults. The Holders of a
majority in aggregate principal amount of
outstanding Securities of any series by written
notice to the Trustee may waive on behalf of the
Holders of all Securities of such series a
past Default or Event of Default with respect to
that series and its consequences except (i) a
Default or Event of Default in the payment of the
principal of, premium, if any, or interest on any
Security of such series or any coupon
appertaining thereto or (ii) in respect of a
covenant or provision hereof which pursuant to
Section 8.2 cannot be amended or modified without
the consent of the Holder of each Outstanding
Security of such series adversely affected.
Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every
purpose of this Indenture.
Section 5.8 Control by Majority. The Holders of a majority
in aggregate principal amount of the Outstanding
Securities of each series affected (with each
such series voting as a class) shall have the
right to direct the time, method and place
of conducting any proceeding for any remedy
available to the Trustee or exercising any trust
or power conferred on it with respect to
Securities of that series; provided, however,
that (i) the Trustee may refuse to follow any
direction that conflicts with law or this
Indenture, (ii) the Trustee may refuse to follow
any direction that is unduly prejudicial to the
rights of the Holders of Securities of such
series not consenting, or that would in the good
faith judgment of the Trustee have a substantial
likelihood of involving the Trustee in personal
liability and (iii) the Trustee may take any
other action deemed proper by the Trustee which
is not inconsistent with such direction.
Section 5.9 Limitation on Suits by Holders. No Holder of
any Security of any series or any coupons
appertaining thereto shall have any right to
institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) the Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect
to the Securities of that series;
(2) the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of that
series have made a written request to the Trustee to
institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee indemnity satisfactory to the Trustee against any
loss, liability or expense to be, or which may be,
incurred by the Trustee in pursuing the remedy;
<PAGE>
(4) the Trustee for 60 days after its receipt of such
notice, request and the offer of indemnity has failed to
institute any such proceedings; and
(5) during such 60 day period, the Holders of a
majority in aggregate principal amount of the Outstanding
Securities of that series have not given to the Trustee a
direction inconsistent with such written request.
No one or more Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or to obtain or to
seek to obtain priority or preference over any other of such Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all of such Holders.
Section 5.10 Rights of Holders to Receive Payment.
Notwithstanding any other provision of
this Indenture, but subject to Section 9.2, the
right of any Holder of a Security or coupon to
receive payment of principal of, premium, if any,
and, subject to Sections 3.5 and 3.7, interest on
the Security, on or after the respective due
dates expressed in the Security (or, in case of
redemption, on the Redemption Dates), and the
right of any Holder of a coupon to receive
payment of interest due as provided in such
coupon, or to bring suit for the enforcement of
any such payment on or after such respective
dates, shall not be impaired or affected without
the consent of such Holder.
Section 5.11 Application of Money Collected. If the
Trustee collects any money pursuant to this
Article, it shall pay out the money in the
following order, at the date or dates fixed by
the Trustee and, in case of the distribution of
such money on account of principal, premium, if
any, or interest, upon presentation of the
Securities and the notation thereon of the
payment if only partially paid and upon surrender
thereof if fully paid:
First: to the Trustee for amounts due under Section 6.9;
Second: to Holders of Securities and coupons in respect of which
or for the benefit of which such money has been collected for amounts due
and unpaid on such Securities for principal of, premium, if any, and
interest, ratably, without preference or priority of any kind, according to
the amounts due and payable on such Securities for principal, premium, if
any, and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment
to Holders pursuant to this Section 5.11. At least 15 days before such record
date, the Trustee shall mail to each holder and the Company a notice that states
the record date, the payment date and the amount to be paid.
<PAGE>
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 employ-
ment of any other appropriate right or remedy.
ARTICLE 6
THE TRUSTEE
Section 6.1 Certain Duties and Responsibilities of the
Trustee. 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.
<PAGE>
(d) The Trustee may act through agents or attorneys and shall
not be responsible for the misconduct or negligence of any agent
or attorney appointed with due care.
(e) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized
or within its rights or powers.
(f) The Trustee shall not be required to expend or risk its
own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of
its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
Section 6.3 Trustee May Hold Securities. The Trustee, any
Paying Agent, any Registrar or any other agent of
the Company, in its individual or any other
capacity, may become the owner or pledgee of
Securities and coupons and, subject to Sections
310(b) and 311 of the Trust Indenture Act, may
otherwise deal with the Company, an Affiliate or
Subsidiary with the same rights it would have if
it were not Trustee, Paying Agent, Registrar or
such other agent.
Section 6.4 Money Held in Trust. Money held by the
Trustee in trust hereunder need not be segregated
from other funds except to the extent required by
law. The Trustee shall be under no liability for
interest on any money received by it hereunder
except as otherwise agreed upon in writing with
the Company.
Section 6.5 Trustee's Disclaimer. The recitals contained
herein and in the Securities, except the
Trustee's certificate of authentication, shall be
taken as the statements of the Company, and the
Trustee assumes no responsibility for their
correctness. The Trustee makes no representation
as to the validity or adequacy of this Indenture
or the Securities or any coupon. The Trustee
shall not be accountable for the Company's use of
the proceeds from the Securities or for monies
paid over to the Company pursuant to the
Indenture.
Section 6.6 Notice of Defaults. If a Default known to the
Trustee occurs and is continuing with respect to
the Securities of any series, the Trustee shall,
within 90 days after it occurs, transmit by mail,
in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, notice
of all such Defaults unless such Default shall
have been cured or waived; provided, however,
that in the case of a Default in payment of the
principal of or interest on the Securities of any
series, the Trustee may withhold the notice
if and so long as the board of directors, the
executive committee or a committee of its
Responsible Officers in good faith determines
that withholding such notice is in the interests
of Holders of Securities of that series; and
provided, further, that in the case of any
Default of the character specified in Section
5.1(3) with respect to Securities of such
series, no such notice to Holders shall be given
until at least 30 days after the occurrence
thereof.
<PAGE>
Section 6.7 Reports by Trustee to Holders. Within 60 days
after each May 15 of each year commencing with
the first May 15 after the first issuance of
Securities pursuant to this Indenture, the
Trustee shall transmit by mail to all Holders of
Securities as provided in Section 313(c) of the
Trust Indenture Act a brief report dated as of
such May 15 if required by and in compliance with
Section 313(a) of the Trust Indenture Act.
Section 6.8 Securityholder Lists. The Trustee shall preserve in as current
a form as is reasonably practicable the most recent list available to
it of the names and addresses of Holders of Securities of each series.
If the Trustee is not the Registrar, the Company shall furnish to the
Trustee semiannually on or before the last day of June and December in
each year, and at such other times as the Trustee may request in
writing, a list, in such form and as of such date as the Trustee may
reasonably require, containing all the information in the possession
or control of the Registrar, the Company or any of its Paying Agents
other than the Trustee as to the names and addresses of Holders of
Securities of each such series. If there are Bearer Securities of any
series outstanding, even if the Trustee is the Registrar, the Company
shall furnish to the Trustee such a list containing such information
with respect to Holders of such Bearer Securities only.
Section 6.9 Compensation and Indemnity. The Company shall pay to the
Trustee such compensation as the Company and the Trustee shall from
time to time agree in writing for all services rendered by it
hereunder. The Trustee's compensation shall not be limited by any law
on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket
expenses incurred by it in connection with the performance of its
duties under this Indenture, except any such expense as may be
attributable to its gross negligence or bad faith. Such expenses shall
include the reasonable compensation and expenses of the Trustee's
agents and counsel.
(b) The Company shall indemnify the Trustee for, and hold it
harmless against, any loss or liability, damage, claim or
reasonable expense including taxes (other than taxes based upon or
determined or measured by the income of the Trustee) incurred by
it arising out of or in connection with its acceptance or
administration of the trust or trusts hereunder, including the
reasonable costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder. The Trustee shall notify
the Company promptly of any claim for which it may seek indemnity.
The Company shall defend the claim and the Trustee shall cooperate
in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without
its consent.
(c) The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through
gross negligence or bad faith.
<PAGE>
(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. The resignation or
removal of the Trustee and the appointment of a
successor Trustee shall become effective only
upon the successor Trustee's acceptance of
appointment as provided in Section 6.11.
(b) The Trustee may resign at any time with respect to
the Securities of any series by giving written notice thereof to
the Company. If the instrument of acceptance by a successor
Trustee required by Section 6.11 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Holders of a majority in aggregate principal
amount of the Outstanding Securities of any series may remove the
Trustee with respect to that series by so notifying the Trustee
and the Company and may appoint a successor Trustee for such
series with the Company's consent.
(d) If at any time:
(1) the Trustee fails to comply with Section 310(b)
of the Trust Indenture Act after written request therefor
by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 310(a) of the Trust Indenture Act and shall fail
to resign after written request therefor by the Company or
by any Holder of a Security who has been a bona fide
Holder of a Security for at least six months; or
(3) the Trustee becomes incapable of acting, is
adjudged a bankrupt or an insolvent, or a receiver or
public officer takes charge of the Trustee or its property
or affairs for the purpose of rehabilitation, conservation
or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee with respect to all Securities, or (ii) subject to Section
315(e) of the Trust Indenture Act, any Holder who has been a bona fide Holder of
a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
<PAGE>
(e) If the Trustee resigns or is removed or if a
vacancy exists in the office of Trustee for any reason, with
respect to Securities of one or more series, the Company, by or
pursuant to a Board Resolution, shall promptly appoint a successor
Trustee with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 6.11. If,
within one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act
of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner
required by Section 6.11, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may,
on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
Section 6.11 Acceptance of Appointment by Successor. 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.
<PAGE>
(b) in case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not
all) series, the Company, the retiring Trustee and such successor
Trustee shall execute and deliver an indenture supplemental hereto
wherein such successor Trustee shall accept such appointment and
which (i) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, such
successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates,
(ii) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (iii) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee
and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in paragraph (a) or (b) of
this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under the Trust Indenture Act.
(e) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect to
the Securities of any series in the manner provided for notices to
the Holders of Securities in Section 1.6. Each notice shall
include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust
office.
Section 6.12 Eligibility Disqualification. There shall at all
times be a Trustee hereunder which shall be eligible to act
as Trustee under Section 310(a)(1) of the Trust Indenture
Act and shall have, at all times, a combined capital and
surplus of at least $75,000,000. If such corporation
publishes reports of condition at least annually, pursuant
to law or the requirements of federal, state, territorial or
District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
<PAGE>
Section 6.13 Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper
or any further act on the part of any of the parties hereto.
In case any Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such
Securities.
Section 6.14 Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized
to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue, exchange,
registration of transfer or partial redemption thereof, and
Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an
instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly
furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities
by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the
Company and, except as may otherwise be provided pursuant to
Section 3.1, shall at all times be a bank or trust company
or corporation organized and doing business and in good
standing under the laws of the United States of America or
of any state or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $1,500,000 and subject
to supervision or examination by federal or state
authorities. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or the
requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so
published. In case at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in
this Section.
<PAGE>
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any
time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 1.6. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation including reimbursement of its reasonable
expenses for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
This is one of the Securities of the series described in the within-mentioned
Indenture.
First Union National Bank of North Carolina,
as Trustee
By______________________________
as Authenticating Agent
By______________________________
Authorized Signatory
ARTICLE 7
CONSOLIDATION, MERGER OR SALE BY THE COMPANY
Section 7.1 Consolidation, Merger or Sale of Assets
Permitted. The Company shall not consolidate or
merge with or into, or transfer or lease all or
substantially all of its assets to, any Person
unless:
(1) the Person formed by or surviving any such
consolidation or merger (if other than the Company), or
which acquires the Company's assets, is organized and
existing under the laws of the United States, any state
thereof or the District of Columbia;
<PAGE>
(2) the Person formed by or surviving any such
consolidation or merger (if other than the Company), or
which acquires the Company's assets, assumes by
supplemental indenture all the obligations of the Company
under the Securities and this Indenture; and
(3) immediately after giving effect to the
transaction no Default or Event of Default shall have
occurred and be continuing.
The Company shall deliver to the Trustee prior to the proposed
transaction an Officer's Certificate to the foregoing effect and an Opinion of
Counsel stating that the proposed transaction and such supplemental indenture
comply with this Indenture and that all conditions precedent to the consummation
of the transaction under this Indenture have been met.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the
Company, when authorized by a Board Resolution,
and the Trustee, at any time and from time to
time, may enter into indentures supplemental
hereto, in form reasonably satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of
the covenants of the Company herein and in the Securities;
or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities
(and if such covenants are to be for the benefit of less
than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of
such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default with
respect to all or any series of Securities; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to
facilitate the issuance of Bearer Securities (including,
without limitation, to provide that Bearer Securities may
be registrable as to principal only) or to facilitate the
issuance of Securities in global form; or
(5) to change or eliminate any of the provisions of
this Indenture; provided that any such change or
elimination shall become effective only when there is no
Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled
to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of
any series as permitted by Sections 2.1 and 3.1; or 1.1.
<PAGE>
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect
to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 6.11; or
(9) if allowed without penalty under applicable laws
and regulations, to permit payment in the United States
(including any of the states and the District of
Columbia), its territories, its possessions and other
areas subject to its jurisdiction of principal, premium,
if any, or interest, if any, on Bearer Securities or
coupons, if any; or
(10) to correct or supplement any provision herein
which may be inconsistent with any other provision herein
or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such
action shall not adversely affect the interests of any
Holder of Securities of any series or the Trustee; or
(11) to cure any ambiguity or correct any mistake,
provided such action shall not adversely affect the
interests of any Holder of Securities of any series or the
Trustee.
Section 8.2 Supplemental Indentures With Consent of Holders. With
the written consent of the Holders of a majority of the
aggregate principal amount of the Outstanding Securities
adversely affected by such supplemental indenture (with the
Securities of all series voting as one class), the Company
and the Trustee may enter into an indenture or indentures
supplemental hereto to add any provisions to or to change or
eliminate any provisions of this Indenture or of any other
indenture supplemental hereto or to modify the rights of the
Holders of such Securities; provided, however, that without
the consent of the Holder of each Outstanding Security
affected thereby, an amendment under this Section may not:
(1) change the Stated Maturity of the principal of or
premium, if any, or any installment of principal of or
premium, if any, or interest on, any Security, or reduce
the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption
thereof, or change the manner in which the amount of any
principal thereof or premium, if any, or interest thereon
is determined, or reduce the amount of the principal of
any Original Issue Discount Security or Indexed Security
that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section
5.2, or change the currency in which any Securities or any
premium or the interest thereon is payable, change the
index, securities or commodities with reference to which
or the formula by which the amount of principal or any
premium or the interest thereon is determined, or impair
the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or,
in the case of redemption, on or after the Redemption
Date);
<PAGE>
(2) reduce the percentage in principal amount of the
Outstanding Securities affected thereby, the consent of
whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for
any waiver (or compliance with certain provisions of this
Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture;
(3) change any obligation of the Company to maintain
an office or agency in the places and for the purposes
specified in Section 9.2; or
(4) make any change in Section 5.7 or this 8.2 except
to increase any percentage or to provide that certain
other provisions of this Indenture cannot be modified or
waived without the consent of the Holders of each
Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities or such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It is not necessary under this Section 8.2 for the Holders to
consent to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
Section 8.3 Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Securities of one or more series shall be
set forth in a supplemental indenture that complies with the
Trust Indenture Act as then in effect.
Section 8.4 Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby
of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's
own rights, duties or immunities under this Indenture or
otherwise.
Section 8.5 Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder and of any coupon
appertaining thereto shall be bound thereby.
<PAGE>
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.
<PAGE>
Section 9.2 Maintenance of Office or Agency. If Securities of a series
are issued as Registered Securities, the Company will maintain in
each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the
Company will maintain, (i) subject to any laws or regulations
applicable thereto, an office or agency in a Place of Payment for
that series which is located outside the United States where
Securities of that series and related coupons may be presented
and surrendered for payment; provided, however, that if the
Securities of that series are listed on any stock exchange
located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent for the
Securities of that series in any other required city located
outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange, and (ii)
subject to any laws or regulations applicable thereto, an office
or agency in a Place of Payment for that series which is located
outside the United States, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the
location, of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
Unless otherwise specified as contemplated by Section 3.1, no
payment of principal, premium or interest on Bearer Securities shall be made at
any office or agency of the Company in the United States, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or coupon for payment, even if the payment would be credited to an
account located outside the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium or interest on any such Bearer Security shall be
made at the office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, if (but only if) payment in Dollars of the full amount of
such principal, premium or interest, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities (including any coupons, if any) of one
or more series may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities (including any coupons, if any) of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Unless otherwise specified as contemplated by Section 3.1, the
Trustee shall initially serve as Paying Agent.
Section 9.3 Money for Securities Payments to Be Held in Trust;
Unclaimed Money. If the Company shall at any time act as its own
Paying Agent with respect to any series of Securities, it will,
on or before each due date of the principal of, premium, if any,
or interest on any of the Securities of that series, segregate
and hold in trust for the benefit of the Persons entitled thereto
a sum sufficient to pay the principal, premium, if any, or
interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee in writing of its action or failure
so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of, premium, if any, or interest on Securities
of that series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
<PAGE>
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities of that
series) in the making of any payment of principal,
premium, if any, or interest on the Securities; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by
such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of any principal, premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium, if any, or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
and coupon, if any, shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense and at the direction of the Company cause to be published
once, in a newspaper published in the English language, customarily published on
each Business Day and of general circulation in The City of New York, or cause
to be mailed to such Holder, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 9.4 Corporate Existence. Subject to Article 7, the Company will at
all times do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and its rights
and franchises; provided that nothing in this Section 9.4 shall
prevent the abandonment or termination of any right or franchise of
the Company if, in the opinion of the Company (evidenced by a Board
Resolution), such abandonment or termination is in the best interests
of the Company and not prejudicial in any material respect to the
Holders of the Securities.
<PAGE>
Section 9.5 Insurance. The Company covenants and agrees that
it will maintain, and cause each of its Subsidiaries to
maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and
covering such risks as are consistent with sound
business practice for corporations engaged in the same
or similar business similarly situated against loss by
fire and the extended coverage perils. In lieu of the
foregoing or in combination therewith, in case of
itself or of any one or more of its Subsidiaries, the
Company will maintain or cause to be maintained a
system or systems of self-insurance which will accord
with the financially sound and approved practices of
companies owning or operating properties of a similar
character and maintaining such systems. The Trustee
shall not be required to see that such insurance is
effected or maintained.
Section 9.6 Reports by the Company. The Company covenants:
(a) to file with the Trustee, within 30 days after the
Company is required to file the same with the Commission, copies
of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended; or, if the Company is
not required to file information, documents or reports pursuant to
either of such Sections, then to file with the Trustee and the
Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) to file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from time to
time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the
conditions and covenants provided for in this Indenture, as may be
required from time to time by such rules and regulations; and
(c) to transmit to all Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act,
such summaries of any information, documents and reports required
to be filed by the Company pursuant to subsections (a) and (b) of
this Section 9.6, as may be required by the rules and regulations
prescribed from time to time by the Commission.
Section 9.7 Annual Review Certificate; Notice of Defaults or
Events of Default. 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.
(a) 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.
<PAGE>
Section 9.8 Limitation on Liens. If the Company or any of
its Subsidiaries shall incur, assume or guarantee any
indebtedness for borrowed money secured by a Lien (any
such indebtedness being herein referred to as "Secured
Debt") on any Property or assets of the Company or any
of its Subsidiaries, the Company shall secure, or cause
such Subsidiary to secure, the Securities equally and
ratably with (or, at the option of the Company, prior
to) such Secured Debt, unless after giving effect
thereto the sum, without duplication, of (i) the
aggregate principal amount of all such Secured Debt,
and (ii) all Attributable Debt in respect of Sale and
Leaseback Transactions (other than Sale and Leaseback
Transactions as to which the Company would be entitled
to incur Secured Debt, in an amount at least equal to
the Attributable Debt in respect of such Sale and
Leaseback Transaction, on the Property to be leased,
without equally and ratably securing the Securities,
pursuant to the exclusions from the computation of
Secured Debt contained below in subclauses (i)-(vii) of
Section 9.8(b) and other than Sale and Leaseback
Transactions the proceeds of which have been applied in
accordance with clause (b) of Section 9.9), would not
exceed 15% of the Consolidated Net Tangible Assets of
the Company.
(b) The restriction of Section 9.8(a) will not apply to, and
there shall be excluded in computing the aggregate amount of
Secured Debt for the purpose of such restriction, indebtedness
secured by:
(i)(A) Liens existing as of the date of
this Indenture or (B) Liens relating to
a contract that was entered into by the
Company or any Subsidiary prior to the
date of this Indenture, provided that in
no case shall the liens excluded
pursuant to this clause (i) include the
lien of the Indenture dated as of
January 1, 1952 between the Company and
the Marine Midland Trust Company of New
York, as trustee, as supplemented and
amended;
(ii) Liens on any Property existing at the
time of acquisition thereof (whether such
acquisition is direct or by acquisition of
stock, assets or otherwise) by the Company
or any of its Subsidiaries, provided that no
such Lien extends or shall extend to or
cover any Property other than the Property
being acquired and fixed improvements then
or thereafter erected thereon;
<PAGE>
(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).
<PAGE>
Section 9.9 Limitation on Sale and Leaseback Transactions.
Neither the Company nor any of its Subsidiaries may
enter into, assume, guarantee or otherwise become
liable with respect to any Sale and Leaseback
Transaction involving any Property, if the latest to
occur of the acquisition, the completion of
construction or the commencement of commercial
operation of such Property shall have occurred more
than 180 days prior thereto, unless (a) the Company or
such Subsidiary could create Secured Debt secured by
such Property under the restrictions described in
Section 9.8 in an amount equal to the Attributable Debt
with respect to the Sale and Leaseback Transaction
without equally and ratably securing the Securities or
(b) the Company or such Subsidiary, within 180 days
from the effective date of such Sale and Leaseback
Transaction, applies an amount not less than the
greater of (i) the net proceeds of the sale of such
Property leased pursuant to such arrangement or (ii)
the fair value, in the opinion of the Board of
Directors, of such Property (as of the time of entering
into such Sale and Leaseback Transaction) to (x) the
retirement of its Funded Debt, including, for this
purpose, any currently maturing portion of such Funded
Debt, or (y) the purchase of other property having a
fair value (as of the time of such purchase), in the
opinion of the Board of Directors, at least equal to
the fair value, in the opinion of the Board of
Directors, of the Property leased in such Sale and
Leaseback Transaction (as of the time of entering into
such Sale and Leaseback Transaction). This restriction
will not apply to any Sale and Leaseback Transaction
(1) between the Company and any Subsidiary or between
any Subsidiaries, (2) entered into prior to the date of
this Indenture or (3) for which, at the time the
transaction is entered into, the term of the related
lease to the Company or such Subsidiary of the Property
sold pursuant to such transaction is three years or
less.
Section 9.10 Books of Record and Account; Compliance with
Law. 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.
<PAGE>
ARTICLE 10
REDEMPTION
Section 10.1 Applicability of Article. Securities
(including coupons, if any) of any series which
are redeemable before their Stated Maturity shall
be redeemable in accordance with their terms and
(except as otherwise specified as contemplated by
Section 3.1 for Securities of any series) in
accordance with this Article.
Section 10.2 Election to Redeem; Notice to Trustee. The election of
the Company to redeem any Securities, including coupons, if any,
shall be evidenced by or pursuant to a Board Resolution. In the
case of any redemption at the election of the Company of less
than all the Securities or coupons, if any, of any series, the
Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the
Securities to be redeemed. In the case of any redemption of
Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere
in this Indenture or (ii) pursuant to an election of the Company
which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction
or condition.
Section 10.3 Selection of Securities to Be Redeemed. Unless otherwise
specified as contemplated by Section 3.1, if less than all the
Securities (including coupons, if any) of a series with the same
terms are to be redeemed, the Trustee, not more than 45 days
prior to the redemption date, shall select the Securities of the
series to be redeemed pro rata or by lot or by any other method
utilized by the Trustee. The Trustee shall make the selection
from Securities of the series that are Outstanding and that have
not previously been called for redemption and may provide for the
selection for redemption of portions (equal to the minimum
authorized denomination for Securities, including coupons, if
any, of that series or any integral multiple thereof) of the
principal amount of Securities, including coupons, if any, of
such series of a denomination larger than the minimum authorized
denomination for Securities of that series. The Trustee shall
promptly notify the Company in writing of the Securities selected
by the Trustee for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to
be redeemed.
For purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities (including
coupons, if any) shall relate, in the case of any Securities (including coupons,
if any) redeemed or to be redeemed only in part, to the portion of the principal
amount of such Securities (including coupons, if any) which has been or is to be
redeemed.
<PAGE>
Section 10.4 Notice of Redemption. Unless otherwise
specified as contemplated by Section 3.1, notice
of redemption shall be given in the manner
provided in Section 1.6 not less than 30 days nor
more than 60 days prior to the Redemption Date to
the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of a
series are to be redeemed, the identification (and, in the
case of partial redemption, the principal amounts) of the
particular Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall state that
on and after the Redemption Date, upon surrender of such
Security, the holder will receive, without a charge, a new
Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed;
(5) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the
Redemption Date, are to be surrendered for payment for the
Redemption Price;
(6) that Securities of the series called for redemption
and all unmatured coupons, if any, appertaining thereto
must be surrendered to the Paying Agent to collect the
Redemption Price;
(7) that, on the Redemption Date, the Redemption Price
will become due and payable upon each such Security, or
the portion thereof, to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after
said date;
(8) that the redemption is for a sinking fund, if such is
the case;
(9) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for
redemption must be accompanied by all coupons maturing
subsequent to the Redemption Date or the amount of any
such missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee and any Paying
Agent is furnished; and
(10) the CUSIP number, if any, of the Securities.
Notice of redemption of Securities to be redeemed shall be given
by the Company or, at the Company's request, by the Trustee in the name and at
the expense of the Company.
<PAGE>
Section 10.5 Deposit of Redemption Price. On or prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, which it
may not do in the case of a sinking fund payment under Article 11,
segregate and hold in trust as provided in Section 9.3) an amount of
money in the currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 3.1 for the
Securities of such series) sufficient to pay on the Redemption Date
the Redemption Price of, and (unless the Redemption Date shall be an
Interest Payment Date) interest accrued to the Redemption Date on, all
Securities or portions thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any sinking fund
payment obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
Section 10.6 Securities Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities shall cease to bear
interest and the coupons for any such interest appertaining to any
Bearer Security so to be redeemed, except to the extent provided
below, shall be void. Except as provided in the next succeeding
paragraph, upon surrender of any such Security, including coupons, if
any, for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable only at an office
or agency located outside the United States and its possessions
(except as otherwise provided in Section 9.2) and, unless otherwise
specified as contemplated by Section 3.1, only upon presentation and
surrender of coupons for such interest; and provided, further, that,
unless otherwise specified as contemplated by Section 3.1,
installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.7.
<PAGE>
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Bearer Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be payable only at
an office or agency located outside of the United States (except as otherwise
provided pursuant to Section 9.2) and, unless otherwise specified as
contemplated by Section 3.1, only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 10.7 Securities Redeemed in Part. Upon surrender of a Security that
is redeemed in part at any Place of Payment therefor (with, if the
Company or the Trustee so required, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of that Security, without
service charge, a new Security or securities of the same series,
having the same form, terms and Stated Maturity, in any authorized
denomination equal in aggregate principal amount to the unredeemed
portion of the principal amount of the Security surrendered.
ARTICLE 11
SINKING FUNDS
Section 11.1 Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such series. The
minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment," and any payment in excess of
such minimum amount provided for by the terms of Securities of
any series is herein referred to as an "optional sinking fund
payment." If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 11.2. Each sinking
fund payment shall be applied to the redemption of Securities of
any series as provided for by the terms of Securities of such
series.
<PAGE>
Section 11.2 Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding
Securities of a series (other than any previously called for
redemption) together, in the case of Bearer Securities of
such series, with all unmatured coupons appertaining thereto
and (ii) may apply as a credit Securities of a series which
have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment
with respect to the Securities of such series required to be
made pursuant to the terms of such Securities as provided
for by the terms of such series; provided that such
Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose
by the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be
reduced accordingly.
Section 11.3 Redemption of Securities for Sinking Fund. Not less
than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the
Trustee an Officer's Certificate specifying the amount of
the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof,
if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant
to Section 11.2 and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before
each such sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund payment
date in the manner specified in Section 10.3 and cause
notice of the redemption thereof to be given in the name of
and at the expense of the Company in the manner provided in
Section 10.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 10.6 and 10.7. This
Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts
shall together constitute but one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
PUBLIC SERVICE COMPANY OF NORTH
CAROLINA, INCORPORATED
By:/s/ Charles E. Zeigler, Jr.
Title: Chairman, President and Chief Executive
Officer
[Seal]
Attest:
/s/ J. Paul Douglas
Secretary
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, as Trustee
By: /s/ Karen Atkinson
Title:
[Seal]
Attest:
---------------------
<PAGE>
Title:
<PAGE>
Reconciliation and tie between Indenture, dated as of January 1, 1996 and the
Trust Indenture Act of 1939, as amended.
Trust Indenture Act Indenture
of 1939 Section Section
310(a)(1)..................................................... 6.12
(a)(2)..................................................... 6.12
(a)(3)..................................................... TIA
(a)(4)..................................................... Not Applicable
(a)(5)..................................................... TIA
(b)........................................................ 6.10; TIA
311(a)........................................................ TIA
(b)........................................................ 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
(f)........................................................ TIA
315(a)........................................................ 6.1
(b)........................................................ 6.6
(c)........................................................ 6.1
(d)(1)..................................................... TIA
(d)(2)..................................................... TIA
(d)(3)..................................................... TIA
(e)........................................................ TIA
316(a)(last sentence)......................................... 1.1
(a)(1)(A).................................................. 5.2; 5.8
(a)(1)(B).................................................. 5.7
(b)........................................................ 5.9; 5.10
(c)........................................................ TIA
317(a)(1)..................................................... 5.3
(a)(2)..................................................... 5.4
(b)........................................................ 9.3
318(a)........................................................ 1.11
(b)........................................................ TIA
(c)........................................................ 1.11; TIA
This reconciliation and tie section does not constitute part of the
Indenture.
