EXHIBIT 4-E-3
PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED
and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of December 15, 1996
to
INDENTURE
Dated as of January 1, 1996
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7.45% Senior Debentures Due 2026
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SECOND SUPPLEMENTAL INDENTURE dated as of December 15, 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 7.45% 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 "7.45% Senior Debentures Due 2026", the aggregate
principal amount of which shall be limited to $50,000,000.00, which amount shall
be as set forth in any written order of
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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 December 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.
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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
7.45% 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 June 15 and December 15 of each year (each, an "Interest Payment
Date"), commencing on June 15, 1997, 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.
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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]
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
7.45% Senior Debenture Due 2026
No. 1 CUSIP No. 744516 AB 1
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 Cede & Co., or registered assigns,
the principal sum of Fifty Million Dollars on December 15, 2026 and to pay
interest thereon from December 17, 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 June 15 and December 15
of each year, commencing June 15, 1997, and when the principal hereof shall have
become due and payable, whether at maturity, by declaration of acceleration or
otherwise ("Maturity"), at the rate of 7.45% 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
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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.
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IN WITNESS WHEREOF, the Company has caused this Instrument to
be executed.
Dated: December 17, 1996
PUBLIC SERVICE COMPANY OF NORTH
CAROLINA, INCORPORATED
By:_____________________________
Its:
Attest:
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Secretary
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
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This 7.45% 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 supplemented by the First Supplemental Indenture dated as of
January 1, 1996 and the Second Supplemental Indenture dated as of December 15,
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
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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.
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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.
The Securities of this series shall not be subject to
redemption prior to final maturity.
All terms used in this Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
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[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 (s) must be guaranteed by an institution which is a participant in the
securities transfer agent medallion stamp program ("STAMP") or similar
program. __________________
NOTICE: The assignor's signature to this Assignment must correspond with the
name as it appears on the face of the within Debenture in every particular
without alteration or any change whatsoever.
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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 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.
#40110214.2
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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.
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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/ JACK MASON
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Attest:
/s/Terina H. Cronin
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Assistant Secretary
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, as Trustee
[Seal]
By: /s/ KAREN E. ATKINSON
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Attest:
Title:
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