[DESCRIPTION] EXHIBIT 4-E-1
PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED
and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as Trustee
_____________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of January 1, 1996
to
INDENTURE
Dated as of January 1, 1996
_____________________
6.99% Senior Debentures Due 2026
FIRST SUPPLEMENTAL INDENTURE dated as of JANUARY 1, 1996 (this
"Supplemental Indenture") between PUBLIC SERVICE COMPANY OF NORTH CAROLINA,
INCORPORATED, a corporation duly organized and existing under the laws of the
State of North Carolina (the "Company"), and FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, as trustee (the "Trustee") under the Indenture dated as of
JANUARY 1, 1996 between the Company and the Trustee (as such Indenture may
heretofore have been amended and supplemented, the "Indenture"). Except as
otherwise expressly provided in this Supplemental Indenture or in the form of
Debenture set forth herein or otherwise clearly required by the context
hereof or thereof, all terms used herein or in said form of Debenture that
are defined in the Indenture shall have the several meanings respectively
assigned to them thereby.
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of Securities, to be issued from
time to time in one or more series as might be determined by the Company
under the Indenture, in an unlimited aggregate principal amount that may be
authenticated and delivered thereunder as in the Indenture provided;
WHEREAS, pursuant to the terms of the Indenture, the Company desires
to provide for the establishment of a new series of Securities to be known
as its 6.99% Senior Debentures Due 2026 (the "Debentures"), the form and
substance thereof, and the terms, provisions and conditions thereof, to be
set forth as provided in the Indenture and this Supplemental Indenture; and
WHEREAS, the Company desires and has requested the Trustee to join
with it in the execution and delivery of this Supplemental Indenture and
all requirements necessary to make this Supplemental Indenture a valid
instrument, in accordance with its terms, and to make the Debentures, when
executed by the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company, have been performed and fulfilled, and
the execution and delivery hereof have been in all respects duly
authorized.
NOW, THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees
with the Trustee as follows:
ARTICLE ONE
General Terms and Conditions of the Debentures
SECTION 1.01. There shall be and is hereby authorized a series of
Securities designated the "6.99% Senior Debentures Due 2026", the aggregate
principal amount of which shall be limited to $50,000,000, which amount shall
be as set forth in any written order of the Company for the authentication
and delivery of Debentures. Debentures may, upon execution of this
Supplemental Indenture or from time to time thereafter, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver such Debentures to or upon the
written order of the Company, signed by its Chairman of the Board, its
President, or any Vice President and its Treasurer or an Assistant Treasurer,
without any further action by the Company. The Debentures shall mature and
the principal thereof shall be due and payable together with all accrued and
unpaid interest thereon, on January 15, 2026.
SECTION 1.02. (a) The Debentures shall be issued as Registered
Securities in global form (a "Global Debenture") in an aggregate principal
amount equal to the principal amount of the Debentures, to be registered in
the name of The Depository Trust Company, New York, New York or any successor
registered as a clearing agency under the Exchange Act or other applicable
statute or regulation, as the Depository, or its nominee, and delivered by
the Trustee to the Depository for crediting to the accounts of its
participants pursuant to the instructions of the Company. Payments on the
Debentures issued as a Global Debenture will be made to the Depository.
(b) Pursuant to the provisions of Section 3.5 of the Indenture, the
Global Debenture may be transferred, in whole but not in part, in the manner
provided in Section 3.5 of the Indenture, only by the Depository for such
series to a nominee of the Depository, by a nominee of the Depository to the
Depository or to another nominee of the Depository, or by the Depository or
such nominee to a successor Depository selected or approved by the Company or
to a nominee of such successor Depository.
(c) If at any time the Depository notifies the Company that it is
unwilling or unable to continue as Depository for the Debentures or if at any
time the Depository for the Debentures shall no longer be a clearing agency
registered under the Exchange Act, or other applicable statute or regulation,
and a successor Depository for the Debentures is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of
such condition, as the case may be, this Section 1.02 shall no longer be
applicable to the Debentures and the Company will execute and, subject to
Section 3.5 of the Indenture, the Trustee will, upon receipt of a Company
Order for the authentication and delivery of certificated Securities of like
tenor, authenticate and deliver Debentures of like tenor in certificated
form, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Debenture in exchange for such Global
Debenture. In addition, the Company may at any time determine in its sole
discretion that the Debentures shall no longer be represented by a Global
Debenture, and that the provisions of this Section 1.02 shall no longer apply
to the Debentures. In such event, the Company will execute and, subject to
Section 3.5 of the Indenture, the Trustee, upon receipt of a Company Order
evidencing such determination by the Company, will authenticate and deliver
certificated Debentures in authorized denominations, and in aggregate
principal amount equal to the principal amount of the Global Debenture in
exchange for such Global Debenture. Upon exchange of the Global Debenture
for such Debentures in definitive registered form without coupons, in
authorized denominations, the Global Debenture shall be canceled by the
Trustee. Such Debentures in definitive registered form issued in exchange
for the Global Debenture pursuant to this Section 1.02(c) shall be registered
in such names and authorized denominations as the Depository, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Debentures to the
Depository for delivery to the persons in whose names such Debentures are so
registered.
SECTION 1.03. If, pursuant to the provisions of Section 1.02(c)
hereof, the Debentures are issued in certificated form, principal of and
premium, if any, and interest thereon will be payable, the transfer thereof
will be registrable, and Debentures will be exchangeable for Debentures
bearing identical terms and provisions, at the office or agency of the
Company in the Borough of Manhattan, the City of New York, in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that
payment of interest on any of the Debentures may be made at the option of the
Company (i) by check mailed to the Holder thereof at such address as shall
appear in the Security Register or (ii) by wire transfer to an account
maintained by the person entitled thereto as specified in the Register.
SECTION 1.04. Each Debenture will bear interest at the rate of 6.99%
per annum from its original date of issuance or from the most recent Interest
Payment Date (as defined below) to which interest has been paid or duly
provided for until the principal thereof becomes due and payable, and any
overdue principal thereof and (to the extent that payment of such interest is
enforceable under applicable law) any overdue installment of interest thereon
will bear interest at the same rate per annum, payable in semi-annually in
arrears on January 15th and July 15th of each year (each, an "Interest
Payment Date"), commencing on July 15, 1996, and at Maturity to the person in
whose name such Debenture or any Predecessor Security thereof is registered,
at the close of business on the Regular Record Date for such interest
installment, which shall be the close of business on the Business Day 15 days
preceding an Interest Payment Date; provided, however, that (i) if any
Debenture is authenticated after a Regular Record Date and before the
Interest Payment Date therefor, such interest installment shall be paid on
the next succeeding Interest Payment Date to the Holder thereof on the
Regular Record Date therefor and (ii) interest payable at Maturity shall be
paid to the Person to whom principal is paid. Any such interest installment
not punctually paid or duly provided for shall forthwith cease to be payable
to such Holder on such Regular Record Date by virtue of having been such
Holder, and such defaulted interest may be paid by the Company, at its
election, to the person in whose name the Debenture (or one or more
Predecessor Securities thereof) is registered at the close of business on a
Special Record Date to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be given to the Holders of the
Debentures not less than 10 days prior to such Special Record Date, or in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Debentures may be listed, and upon such notice as may
be required by such exchange, all as more fully provided in the Indenture.
ARTICLE TWO
Form of Debenture
The Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms:
[FORM OF FACE OF DEBENTURE]
[If the Debenture is to be a Global Debenture, insert: This Debenture
is in global form within the meaning of the Indenture hereinafter referred to
and is registered in the name of the Depository or a nominee of the
Depository. Unless and until it is exchanged in whole or in part for
Securities in certificated form, this Security may not be transferred except
as a whole by the Depository to a nominee of the Depository or by a nominee
of the Depository to the Depository or another nominee of the Depository or
by the Depository or any such nominee to a successor Depository or a nominee
of such successor Depository.
Unless this Debenture is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York) to the Company or
its agent for registration of transfer, exchange or payment, and any
certificate to be issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an interest herein.]
PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED
6.99% Senior Debenture Due 2026
No. ________________ CUSIP No. 744516AA3
PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED, a corporation
duly organized and existing under the laws of the State of North Carolina
(herein referred to as the "Company," which term includes any successor
corporation under the Indenture referred to hereinafter), for value received,
hereby promises to pay to ___________________________________, or registered
assigns, the principal sum of _____________________________ Dollars on
January 15, 2026, and to pay interest thereon from January 16, 1996 or from
the most recent interest payment date (each such date, an "Interest Payment
Date") to which interest has been paid or duly provided for, semi-annually in
arrears on January 15 and July 15 of each year, commencing July 15, 1996, and
when the principal hereof shall have become due and payable, whether at
maturity, upon call for redemption, by declaration of acceleration or
otherwise ("Maturity"), at the rate of 6.99% per annum until the principal
hereof shall have become so due and payable, and on any overdue principal and
premium, if any, and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at
the same rate per annum. The amount of interest payable on any Interest
Payment Date shall be computed on the basis of a 360-day year of twelve 30-
day months. In the event that any date on which interest is payable on the
Securities of this series is not a Business Day, then payment of interest
payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any
such delay), with the same force and effect as if made on such date. The
interest installment so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to the
person in whose name this Debenture (or one or more Predecessor Securities of
the same series) is registered at the close of business on the Regular Record
Date for such interest installment, which shall be the close of business on
the Business Day 15 days preceding an Interest Payment Date; provided
further, however, that (i) if this Debenture is authenticated after a Regular
Record Date and before the Interest Payment Date therefor, such interest
installment shall be paid on the next succeeding Interest Payment Date to the
registered holder thereof on the Regular Record Date therefor and (ii)
interest payable at Maturity shall be paid to the Person to whom principal is
paid. Any such interest installment not punctually paid or duly provided for
shall forthwith cease to be payable to the registered holders on such Regular
Record Date, and may be paid to the person in whose name this Debenture (or
one or more Predecessor Securities of the same series) is registered at the
close of business on a Special Record Date to be fixed by the Trustee for the
payment of such defaulted interest, notice whereof shall be given to the
registered holders of Securities of this series not less than 10 days prior
to such Special Record Date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in the Indenture
hereinafter referred to. If at any time this Debenture is not in global
form, the principal of and premium, if any, and interest on this Debenture
shall be payable at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, the City of New York, in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that
payment of interest on this Debenture may be made at the option of the
Company (i) by check mailed to the registered holder hereof at such address
as shall appear in the Security Register or (ii) by wire transfer to an
account maintained by the person entitled thereto as specified in the
Security Register.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed
by or on behalf of the Trustee.
The provisions of this Debenture are contained on the reverse side
hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be
executed.
Dated:__________________
PUBLIC SERVICE COMPANY OF NORTH CAROLINA,
INCORPORATED
By:_____________________________
Its:
Attest:
_______________________________
Secretary
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series described in the within-
mentioned Indenture.
First Union National Bank of North Carolina,
as Trustee
By:______________________________
Authorized Signatory
[FORM OF REVERSE OF DEBENTURE]
This 6.99% Senior Debenture Due 2026 (herein sometimes referred to as
this "Debenture") is one of a duly authorized series of Securities of the
Company, specified in the Indenture (as defined below), all issued or to be
issued in one or more series under and pursuant to an Indenture dated as of
January 1, 1996 duly executed and delivered between the Company and First
Union National Bank of North Carolina, as trustee (herein referred to as the
"Trustee"), as amended and supplemented by the First Supplemental Indenture
dated as of January 1, 1996 between the Company and the Trustee (said
Indenture as so supplemented being hereinafter referred to as the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the holders of the Securities of this series. By the terms of
the Indenture, the Securities are issuable in series that may vary as to
amount, date of maturity, rate of interest and in other respects as in the
Indenture provided. The Securities of this series are limited in aggregate
principal amount as specified in said Supplemental Indenture.
If an Event of Default with respect to the Securities of this series
shall have occurred and be continuing, the principal of all of such
Securities may be declared, and upon such declaration shall become, due and
payable, in the manner, with the effect and subject to the conditions
provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Debenture upon compliance by the Company with
certain conditions set forth therein.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Securities of each series affected at the
time outstanding, as defined in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of modifying
in any manner the rights of the holders of Securities; provided, however,
that no such supplemental indenture shall, among other things, (i) change the
Stated Maturity of any Securities of any series, or reduce the principal
amount thereof, or reduce the rate of interest thereon, or reduce any premium
payable upon the redemption thereof or the amount of any installment of
interest thereon, without the consent of the holder of each Security so
affected or (ii) reduce the aforesaid percentage in principal amount of
Securities that is required to consent to any such supplemental indenture,
without the consent of the holders of each Security then outstanding and
affected thereby. The Indenture also contains provisions permitting the
holders of a majority in aggregate principal amount of the Securities of all
series at the time outstanding affected thereby, on behalf of the holders of
the Securities of such series, to waive any past default in the performance
of any of the covenants contained in the Indenture, or established pursuant
to the Indenture with respect to such series, and its consequences, except
(x) a default in the payment of the principal of or premium, if any, or
interest on any of the Securities of such series, or (y) a default in respect
of any other covenant or provision that cannot be modified without the
consent of the holder of each Security of such series adversely affected
thereby, in each case which default may be waived by the unanimous consent of
the holders affected. Any such consent or waiver by the registered holder of
this Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and
owners of this Debenture and of any Security of the same series issued in
exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium if any, and interest on this Debenture at the time and place and at
the rate and in the money herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered holder
hereof on the Security Register of the Company, upon surrender of this
Debenture for registration of transfer at the Corporate Trust Office of the
Trustee (or, if at any time this Debenture is not in global form, at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, the City of New York), accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Trustee
duly executed by the registered holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new Securities of the same
series of authorized denominations and for the same aggregate principal
amount will be issued to the designated transferee or transferees. No
service charge will be made for any such transfer, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in relation thereto.
Prior to due presentment for registration of this Debenture, the
Company, the Trustee and any agent of the Company or the Trustee may deem and
treat the registered holder hereof as the absolute owner hereof (whether or
not this Debenture shall be overdue) for the purpose of receiving payment of
or on account of the principal hereof and premium, if any, and (subject to
the provisions of the Indenture) interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any agent of the
Company or the Trustee shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
premium, if any, or the interest on this Debenture, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture, against any incorporator, stockholder, officer or director, past,
present or future, as such, of the Company or of any predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration
for the issuance hereof, expressly waived and released.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations herein and
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of a different
authorized denomination, as requested by the holder surrendering the same.
All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
[Form of Assignment]
For value received, the undersigned hereby sells, assigns and
transfers unto __________________ the within Debenture, and all rights
thereunder, and hereby irrevocably constitutes and appoints ___________,
attorney to transfer the said Debenture on the Security Register, with full
power of substitution in the premises.
Dated: __________________________
Signature of Assignor
Social Security Number
or Tax Identification
Number of Transferee: ____________________________
Signature guaranteed by
bank, trust company or
member of New York
Stock Exchange: _____________________________
NOTICE: Signature must be guaranteed by an institution
which is a participant in the securities transfer agent
medallion stamp program ("STAMP") or similar program.
Signature Guaranteed:
____________________________
NOTICE: Signature must be
guaranteed by an institution
which is a participant in the
securities transfer agent medallion
stamp program ("STAMP") or similar
program.
ARTICLE THREE
Other Matters
SECTION 3.01. (a) The Company designates the Trustee as Paying Agent
and Registrar with respect to the Debentures, and designates the Corporate
Trust Office of the Trustee as an office at which (i) the principal of and
premium, if any, and interest on the Debentures shall be payable, (ii)
registration of transfers and exchanges of the Debentures may be effected and
(iii) notices and demands to or upon the Company in respect of the Debentures
and the Indenture may be served.
(b) The Company reserves the right to change, by one or more
supplemental indentures, any such designation made pursuant to this Section
3.01.
.
SECTION 3.02. The proper officers of the Company may execute, with
the Paying Agent and any Authenticating Agent for the Debentures, one or
more letters of representations and other customary documentation to the
Depository and any supplements or amendments thereto necessary or desirable
to make the Debentures eligible for deposit at the Depository; provided,
however, that the Company reserves the right to terminate any such letter of
representations or other agreement by one or more Officer's Certificates;
provided further, however, that the Company reserves the right to enter into
similar agreements with any other Depository with respect to the Debentures
by one or more Officer's Certificates.
SECTION 3.03. Subject to the provisions of the Indenture (including,
without limitation, Section 4.6 thereof), the provisions of Sections 4.4 and
4.5 of the Indenture shall be applicable to the Debentures.
SECTION 3.04. The Debentures shall not be subject to redemption
prior to final maturity.
ARTICLE FOUR
Miscellaneous Provisions
SECTION 4.01. The Indenture, as supplemented by this Supplemental
Indenture, is in all respects ratified and confirmed, and this Supplemental
Indenture shall be deemed part of the Indenture in the manner and to the
extent herein and therein provided.
SECTION 4.02. The recitals herein contained are made by the Company
and not by the Trustee, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representation as to the validity
or sufficiency of this Supplemental Indenture.
SECTION 4.03. This Supplemental Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above
written.
PUBLIC SERVICE COMPANY OF NORTH CAROLINA,
INCORPORATED
[Seal]
By:/s/ Charles E. Zeigler, Jr.
Attest:
/s/ J. Paul Douglas
Secretary
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as Trustee
[Seal]
By:/s/ Karen Atkinson
Attest: Title:
______________________________
Title: