<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 17, 1996
REGISTRATION STATEMENT NO. 333-
POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT NO. 33-50543
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-3
REGISTRATION STATEMENT
and
POST-EFFECTIVE AMENDMENT NO. 1
under
THE SECURITIES ACT OF 1933
------------------
DUKE POWER COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
NORTH CAROLINA 56-0205520
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
</TABLE>
422 SOUTH CHURCH STREET
CHARLOTTE, NORTH CAROLINA 28242-0001
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
704-594-0887
(REGISTRANT'S TELEPHONE NUMBER)
------------------
<TABLE>
<S> <C>
RICHARD J. OSBORNE JOHN SPUCHES
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER DEWEY BALLANTINE
422 SOUTH CHURCH STREET 1301 AVENUE OF THE AMERICAS
CHARLOTTE, NORTH CAROLINA 28242-0001 NEW YORK, NEW YORK 10019-6092
TELEPHONE NO. 704-382-5159 TELEPHONE NO. 212-259-7700
</TABLE>
(NAMES, ADDRESSES AND TELEPHONE NUMBERS OF AGENTS FOR SERVICE)
------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement
as determined by market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following box.
/ /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C>
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
PROPOSED
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED OFFERING PRICE REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------
First and Refunding Mortgage Bonds.................................. $700,000,000* $241,381
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
</TABLE>
* Estimated solely for the purpose of calculating the registration fee.
------------------
Pursuant to Rule 429 of the General Rules and Regulations under the
Securities Act of 1933, the Prospectus included in this Registration Statement
is a combined Prospectus which also relates to Registration Statement No.
33-50543, previously filed by the Registrant on Form S-3, as to which First and
Refunding Mortgage Bonds having an aggregate offering price of $300,000,000 (for
which a registration fee of $93,750 was paid) remain unsold. This Registration
Statement also constitutes Post-Effective Amendment No. 1 with respect to the
Registrant's Registration Statement No. 33-50543 and such Post-Effective
Amendment shall hereafter become effective concurrently with the effectiveness
of this Registration Statement in accordance with Section 8(c) of the Securities
Act of 1933.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION
DATED APRIL 17, 1996
PROSPECTUS
DUKE POWER COMPANY
FIRST AND REFUNDING
MORTGAGE BONDS
Duke Power Company (the Company) may from time to time issue up to $1
billion aggregate principal amount of its First and Refunding Mortgage Bonds
(New Bonds) in one or more series on terms to be determined at the time or times
of sale. The terms of the New Bonds in respect of which this Prospectus is being
delivered (Offered Bonds) including, where applicable, the series designation,
the principal amount of the series, the maturity, the rate and time of payment
of interest, the initial public offering price, the provisions for redemption
and other provisions are set forth in the accompanying Prospectus Supplement
(Prospectus Supplement), together with the terms of offering of the Offered
Bonds.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS APRIL , 1996.
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 and in accordance therewith files periodic and current
reports and other information with the Securities and Exchange Commission (the
Commission). Information concerning directors and officers, their remuneration,
the principal holders of securities of the Company and any material interest of
such persons in transactions with the Company, as of particular dates, is
disclosed in proxy statements distributed to shareholders of the Company and
filed with the Commission. Such reports, proxy statements and other information
can be inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C., 500 West Madison Street,
Chicago, Ill. and Seven World Trade Center, New York, N.Y. Copies of such
material can also be obtained at prescribed rates from the Public Reference
Section of the Commission at its principal office at 450 Fifth Street, N.W.,
Washington, D.C. 20549. In addition, reports, proxy statements and other
information concerning the Company can be inspected at the offices of the New
York Stock Exchange, Inc., where certain securities of the Company are listed.
DOCUMENTS INCORPORATED BY REFERENCE
The following document filed by the Company with the Commission is
incorporated herein by reference:
- Annual report on Form 10-K for the year ended December 31, 1995.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of this
Prospectus and prior to the termination of the offering made by this Prospectus
shall be deemed to be incorporated by reference in this Prospectus and to be
made a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein or in the accompanying Prospectus Supplement
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON, INCLUDING ANY
BENEFICIAL OWNER, TO WHOM A COPY OF THIS PROSPECTUS HAS BEEN DELIVERED, UPON
ORAL OR WRITTEN REQUEST OF ANY SUCH PERSON, A COPY OF ANY OR ALL OF THE
DOCUMENTS REFERRED TO ABOVE WHICH HAVE BEEN OR MAY BE INCORPORATED BY REFERENCE
IN THIS PROSPECTUS, OTHER THAN EXHIBITS TO SUCH DOCUMENTS, UNLESS SUCH EXHIBITS
ARE SPECIFICALLY INCORPORATED BY REFERENCE THEREIN. REQUESTS FOR COPIES OF SUCH
DOCUMENTS SHOULD BE ADDRESSED TO INVESTOR RELATIONS DEPARTMENT, DUKE POWER
COMPANY, P.O. BOX 1005, CHARLOTTE, NORTH CAROLINA 28201-1005 (TELEPHONE NO.
704-382-3853 OR 800-488-3853 (TOLL-FREE)).
2
<PAGE> 4
THE COMPANY
The Company is primarily engaged in the generation, transmission,
distribution and sale of electric energy in the central portion of North
Carolina and the western portion of South Carolina, comprising the area in both
States known as the Piedmont Carolinas. Its service area, approximately
two-thirds of which lies in North Carolina, covers about 20,000 square miles
with an estimated population of 5,000,000 and includes a number of cities, of
which the largest are Charlotte, Greensboro, Winston-Salem and Durham in North
Carolina and Greenville and Spartanburg in South Carolina. The Company supplies
electric service directly to approximately 1,800,000 residential, commercial and
industrial customers in more than 200 cities, towns and unincorporated
communities. Electricity is sold at wholesale to incorporated municipalities and
to several public and private utilities. In addition, sales are made through
contractual arrangements to former wholesale municipal or cooperative customers
of the Company who had purchased portions of the Catawba Nuclear Station. The
Company's wholly-owned subsidiary, Nantahala Power and Light Company, supplies
electric service directly to approximately 53,000 mostly residential customers
in five counties in western North Carolina. The Company is also engaged in a
variety of diversified operations, most of which are organized in separate
subsidiaries, through the Associated Enterprises Group (AEG).
During 1995, the Company's operating revenues, including those of AEG, were
$4.7 billion. The Company's executive offices are located in the Power Building,
422 South Church Street, Charlotte, North Carolina 28242-0001 (Telephone No.
704-594-0887).
RECENT FINANCIAL DATA
<TABLE>
<CAPTION>
(IN THOUSANDS OF DOLLARS EXCEPT PER SHARE DATA)
YEAR ENDED DECEMBER 31,
---------------------------
1995 1994
------------ ----------
<S> <C> <C>
RESULTS OF OPERATIONS:
Electric Revenues....................................... $4,422,438 $4,279,329
Net Income.............................................. 714,538 638,876
Earnings for Common Stock............................... 665,635 589,152
Earnings Per Share of Common Stock...................... $3.25 $2.88
</TABLE>
<TABLE>
<CAPTION>
AS OF
DECEMBER 31,
1995 %
------------ ----
<S> <C> <C>
CAPITAL STRUCTURE:
Long-Term Debt......................................... $3,711,405 40
Preferred Stocks....................................... 684,000 8
Common Equity.......................................... 4,785,184 52
------------ ----
Total Capitalization........................... $9,180,589 100
========== ===
Current Maturities of Long-Term Debt and
Preferred Stocks and Short-Term Debt................ $ 167,371
</TABLE>
The foregoing information has been selected from or is based upon the
detailed information and financial statements incorporated by reference in this
Prospectus and is qualified in its entirety by reference thereto and should be
read together therewith.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------------------
1995 1994 1993 1992 1991
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges.............. 4.94 4.72 4.68 3.49 3.83
</TABLE>
For purposes of this ratio (i) earnings consist of income from continuing
operations before income taxes and fixed charges and (ii) fixed charges consist
of all interest deductions and the interest component of rentals.
3
<PAGE> 5
USE OF PROCEEDS
The Company is offering hereby a maximum of $1 billion aggregate principal
amount of its First and Refunding Mortgage Bonds (the New Bonds) on terms to be
determined when an agreement to sell is made.
The net proceeds from the sale of the New Bonds will be used for (a)
financing the construction of additions to the Company's electric plant
facilities and the acquisition of nuclear fuel, (b) redeeming from time to time
the Company's presently outstanding securities when such transactions will
result in an overall cost savings to the Company and (c) refunding maturing
securities.
DESCRIPTION OF THE NEW BONDS
The New Bonds will be issued as one or more series of First and Refunding
Mortgage Bonds (the Bonds) under a First and Refunding Mortgage, dated as of
December 1, 1927 (the Indenture), from the Company to Chemical Bank, as
successor Trustee (the Trustee) to Morgan Guaranty Trust Company of New York, as
supplemented and amended and as to be supplemented by one or more supplemental
indentures relating to the New Bonds. The Indenture, as heretofore supplemented
and amended and as to be supplemented by said supplemental indenture or
indentures, is hereinafter called the "Mortgage". The statements under this
heading are subject to the detailed provisions of the Mortgage. They are
summaries which make use of terms defined in the Mortgage but do not purport to
be complete.
FORM, DENOMINATIONS AND EXCHANGEABILITY
The New Bonds will be issuable only in fully registered form, without
coupons, in denominations of $1,000 and integral multiples thereof and will be
exchangeable for a like aggregate principal amount of New Bonds of other
authorized denominations of the same series. No charge will be made for any
transfer or exchange of the New Bonds, but the Company may require payment of a
sum sufficient to cover any stamp tax or other governmental charge incident
thereto. Transfers and exchanges of the New Bonds may be made at Chemical Bank,
55 Water Street, New York, New York 10041.
INTEREST, MATURITY AND PAYMENT
See the accompanying Prospectus Supplement.
REDEMPTION
See the accompanying Prospectus Supplement.
REPLACEMENT FUND
The Company is required to deposit with the Trustee annually, for a
Replacement Fund, the sum of the replacement requirements (as defined) for all
years beginning with 1949 and ending with the last calendar year preceding the
date of the deposit, after deducting therefrom (1) the aggregate original cost
of all fixed property (electric) retired during such period, which amount shall
not exceed the aggregate of the gross amounts of additional property (electric)
acquired or constructed by the Company during the same period; and (2) the
aggregate amount of cash theretofore deposited by the Company with the Trustee,
or which would have been required to be so deposited except for permitted
reductions, under the Replacement Fund.
The "replacement requirement" in respect of any year is 2 1/2% of the
average "amount of depreciable fixed property" (electric) as at the beginning
and end of such year but shall not exceed the depreciation or retirement charges
permitted by any governmental authority, or the amount deductible as
depreciation or similar expense for Federal income tax purposes. The "amount of
4
<PAGE> 6
depreciable fixed property" (electric) is the amount by which the sum of
$192,913,385, plus the aggregate gross amount of all depreciable additional
property (electric) acquired or constructed by the Company from January 1, 1949
to the date as of which such amount is determined, exceeds the original cost of
all depreciable fixed property (electric) retired during such period or released
from the lien of the Mortgage.
Upon application of the Company, the amount of cash at any time required to
be deposited in the Replacement Fund may be reduced, and any cash previously so
deposited and then held by the Trustee may be withdrawn, (1) in an amount equal
to 150% of the principal amount of Bonds previously authenticated and delivered
under the Mortgage, or refundable prior lien bonds, which shall be deposited
with the Trustee and on the basis of which the Company would otherwise have been
entitled to the authentication and delivery of additional Bonds; and (2) in an
amount equal to 150% of the principal amount of Bonds to the authentication and
delivery of which the Company would otherwise be entitled on the basis of
additional property (electric).
Upon application of the Company, the Trustee shall apply cash deposited in
the Replacement Fund (and not theretofore withdrawn by the Company) to the
payment, purchase or redemption of Bonds issued under the Mortgage or to the
purchase of refundable prior lien bonds.
The Company has never deposited any cash with the Trustee pursuant to the
Replacement Fund. If any cash should be deposited in the future, the Company has
agreed not to apply such cash to the redemption of the New Bonds as long as any
of the Bonds presently outstanding remain outstanding.
SECURITY
The Mortgage creates a continuing lien to secure the payment of the
principal of, and interest on, all Bonds issued thereunder, which are in all
respects equally and ratably secured without preference, priority or
distinction. The lien of the Mortgage covers substantially all of the properties
(real, personal and mixed) and franchises of the Company, whether now owned or
hereafter acquired, with certain exceptions including certain after-acquired
non-electric properties, cash, accounts receivable, choses in action,
inventories of materials and supplies, merchandise held for sale, securities
held by the Company, certain after-acquired property not useful in the Company's
electric business and certain after-acquired franchises.
The lien of the Mortgage is subject to certain permitted liens and to liens
which may exist upon properties acquired subsequent to the making of the
Mortgage to the extent of the amounts of prior lien bonds secured by such
properties (which shall not exceed 75% of the cost or value thereof) and
additions thereto.
ISSUANCE OF ADDITIONAL BONDS
The aggregate amount of Bonds which may be issued under the Mortgage is
unlimited. The Bonds of each series shall be of such denominations, date,
maturity and interest rate, and may have such redemption or sinking fund
provisions and such other terms as the Board of Directors of the Company may
determine.
Subject to the provisions of the Mortgage, additional Bonds may be
authenticated and delivered in an aggregate principal amount not exceeding (1)
the amount of cash deposited with the Trustee therefor, (2) the amount of
previously authenticated and delivered Bonds and/or refundable prior lien bonds
retired or to be retired and which, with certain exceptions, are deposited with
the Trustee therefor, or (3) as to additional property (electric) certified to
the Trustee subsequent to February 18, 1949, 66 2/3% of the aggregate of the net
amounts thereof.
No additional Bonds may be authenticated and delivered under the Mortgage,
other than certain types of refunding Bonds, unless the Company's available net
earnings for twelve consecutive calendar months within the fifteen calendar
months immediately preceding shall have been at least twice the amount of the
annual interest charges on all Bonds outstanding under the Mortgage, including
the Bonds applied for, and on all outstanding prior lien bonds not held by the
Trustee under the Mortgage.
5
<PAGE> 7
The Company may not apply for the authentication and delivery of any Bonds
(1) in an aggregate principal amount exceeding $26 million on the basis of
additional property (electric) acquired or constructed prior to January 1, 1949,
or (2) on the basis of Bonds or prior lien bonds paid, purchased or redeemed
prior to February 1, 1949; and the Company may not certify any additional
property (electric) which is subject to the lien of any prior lien bonds for the
purpose of establishing such prior lien bonds as refundable if the aggregate
principal amount of such prior lien bonds exceeds 66 2/3% of the net amount of
such additional property subject to the lien of such prior lien bonds.
RELEASE PROVISIONS
The Mortgage permits the Company to dispose of certain property and take
certain other action without release by the Trustee, and permits mortgaged
property to be released upon the deposit of cash or equivalent consideration
equal to the value of the property to be released. The Mortgage contains
provisions under which, in certain events and within certain limitations, cash
received by the Trustee (other than for the Replacement Fund or as the basis for
the issuance of Bonds) shall be paid out by the Trustee upon application of the
Company.
Cash deposited with the Trustee for the Replacement Fund may be withdrawn
by the Company as outlined under the subcaption "Replacement Fund" above. Cash
deposited with the Trustee as the basis for the issuance of Bonds may be
withdrawn by the Company, upon application to the Trustee, in an amount equal to
the aggregate principal amount of any Bonds, the authentication and delivery of
which the Company shall have become entitled to on the basis of additional
property (electric), on the basis of Bonds previously authenticated and
delivered, or on the basis of refundable prior lien bonds.
AMENDMENTS OF MORTGAGE
Amendments of the Mortgage may be made with the consent of the holders of
66 2/3% of the Bonds; but no amendment shall affect the terms of payment of the
principal at maturity of, or the interest or premium on, any Bond or affect the
rights of Bondholders to sue to enforce any such payment at maturity, or reduce
the percentage required to effect a valid amendment; nor shall any amendment
affect the rights under the Mortgage of the holders of less than all of the
series of Bonds outstanding unless consented to by the holders of 66 2/3% of the
Bonds of each of the series so affected.
The covenants to be included in the supplemental indenture for the Offered
Bonds will be solely for the benefit of holders of such Offered Bonds and may be
modified by written consent or affirmative vote of holders of 66 2/3% of such
Offered Bonds outstanding, without consent of Bondholders of any other series.
DEFAULT
The Trustee may, and upon written request by the holders of not less than a
majority of the outstanding Bonds shall, declare the principal of all
outstanding Bonds due upon the happening of any of the events of default
specified in the Mortgage, but the holders of a majority of the outstanding
Bonds may waive such default and rescind any declaration if such default has
been cured. The Trustee is under no obligation to exercise any of its powers at
the request of any of the holders of the Bonds unless such Bondholders have
offered to the Trustee security or indemnity satisfactory to it against the
cost, expenses and liabilities to be incurred therein or thereby. The holders of
a majority in principal amount of the Bonds outstanding may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, and the
Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with any such direction.
Events of default are defined in the Mortgage as including (a) default in
the payment of principal, (b) default for 60 days in the payment of interest,
(c) default in the performance of any other covenants in the Mortgage continuing
for a period of 60 days after notice by the Trustee or by the holders of not
less than 10% in principal amount of the Bonds then outstanding, and (d) certain
events
6
<PAGE> 8
in bankruptcy or insolvency. The Company is required to furnish annually to the
Trustee a certificate in respect of compliance or non-compliance by the Company
with the covenants of the Mortgage.
CONCERNING THE TRUSTEE
The Trustee, Chemical Bank, is a participant in the Company's $355 million
credit facility under which Chemical Bank's commitment is $25 million.
PLAN OF DISTRIBUTION
The Company may sell the New Bonds in any of three ways: (a) through
underwriters or dealers, (b) directly to a limited number of purchasers or to a
single purchaser or (c) through agents. Each Prospectus Supplement with respect
to a series of the Offered Bonds will set forth the terms of the offering of
such series, including the name or names of any underwriters, the initial public
offering price or purchase price from the Company, the proceeds to the Company,
any underwriting discounts and other items constituting underwriters'
compensation and any discounts or concessions to be allowed or reallowed or paid
to dealers. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
If underwriters are used in the sale of any series of the Offered Bonds,
such series will be acquired by the underwriters for their own account and may
be resold from time to time in one or more transactions, including negotiated
transactions, at a fixed offering price or at varying prices determined at the
time of sale. Such series may be offered to the public either through
underwriting syndicates represented by one or more managing underwriters or
directly by one or more underwriters. Any underwriters with respect to any
series of the Offered Bonds will be named in the Prospectus Supplement relating
thereto and, if an underwriting syndicate is used, the managing underwriter or
underwriters will be named on the cover page of such Prospectus Supplement.
Unless otherwise set forth in such Prospectus Supplement, the obligations of the
underwriters to purchase any series of the Offered Bonds will be subject to
certain conditions precedent, the underwriters will be obligated to purchase all
the Bonds of such series if any are purchased and the Company will have agreed
to indemnify the underwriters against certain civil liabilities, including
liabilities under the Securities Act of 1933.
If any series of the Offered Bonds is sold through agents designated by the
Company from time to time, any agent involved in the offer or sale of such
series will be named, and any commissions payable by the Company to such agent
will be set forth, in the Prospectus Supplement relating thereto. Unless
otherwise indicated in such Prospectus Supplement, any such agent will be acting
on a best efforts basis for the period of its appointment.
EXPERTS
The financial statements included in the Company's annual report on Form
10-K, which are incorporated herein by reference, have been audited by Deloitte
& Touche LLP, as stated in their report appearing therein, and are incorporated
herein in reliance upon such report given upon the authority of that firm as
experts in accounting and auditing.
LEGAL OPINIONS
The validity of the New Bonds will be passed upon for the Company by Steve
C. Griffith, Jr., Esq., Charlotte, North Carolina, and by Dewey Ballantine, New
York, New York, and for any agent, dealer or underwriter by Willkie Farr &
Gallagher, New York, New York. In giving their opinions, Dewey Ballantine and
Willkie Farr & Gallagher may rely as to matters of local law upon the opinion of
Mr. Griffith, who is a Director and Vice Chairman of the Board and the General
Counsel of the Company. Mr. Griffith owns 43,668 shares of Common Stock of the
Company, including 42,498 shares held under the Stock Purchase-Savings Program
for Employees and the Employees' Stock Ownership Plan.
7
<PAGE> 9
L O G O
<PAGE> 10
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION (ESTIMATED):
<TABLE>
<S> <C>
SEC Filing Fee*................................................ $241,381
Trustee Fees................................................... 140,000
Printing and Engraving Costs................................... 140,000
Legal Fees and Expenses........................................ 190,000
Accounting Fees................................................ 35,000
Blue Sky Fees and Expenses..................................... 10,000
Rating Agency Fees............................................. 230,000
Miscellaneous.................................................. 8,619
--------
Total................................................ $995,000
========
</TABLE>
------------------------
* Actual
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 55-8-50 through 55-8-58 of the North Carolina Business Corporation
Act and the By-Laws of the Company permit indemnification of the registrant's
directors and officers in a variety of circumstances, which may include
liabilities under the Securities Act of 1933 (Act). In addition, the registrant
has purchased insurance permitted by the law of North Carolina on behalf of
directors, officers, employees or agents which may cover liabilities under the
Act.
ITEM 16. EXHIBITS.
Exhibits filed herewith:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- ---------------------
<S> <C>
1 -- Form of Underwriting Agreement.
4-B-81 -- Form of Supplemental Indenture relating to the New Bonds.
5 -- Opinion of Steve C. Griffith, Jr., Esq.
12 -- Computation of Ratio of Earnings to Fixed Charges.
23(A) -- Independent Auditors' Consent.
23(B) -- Consent of Steve C. Griffith, Jr., Esq. (included in Exhibit 5).
23(C) -- Consent of Dewey Ballantine.
24(A) -- Copy of power of attorney authorizing Ellen T. Ruff and others to sign
the registration statement on behalf of the registrant and certain of
its directors and officers.
24(B) -- Certified copy of resolution of the Board of Directors of the registrant
authorizing power of attorney.
25 -- Statement of Eligibility of the Trustee on Form T-1 of Chemical Bank.
</TABLE>
II-1
<PAGE> 11
Exhibits incorporated herein by reference:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<S> <C>
4-A-1 -- Form of the New Bonds will be substantially as set forth on pages 7
through 12 of Exhibit 4-B-81 hereto.
4-B-1 -- First and Refunding Mortgage from registrant to Guaranty Trust Company
of New York, Trustee, dated as of December 1, 1927 (filed with Form
S-1, File No. 2-7224, effective October 15, 1947, as Exhibit 7(a)).
4-B-2 -- Supplemental Indenture, dated as of March 12, 1930, supplementing said
Mortgage (filed with Form S-1, File No. 2-7224, effective October 15,
1947, as Exhibit 7(b)).
4-B-3 -- Supplemental Indenture, dated as of July 1, 1935, supplementing said
Mortgage (filed with Form S-1, File No. 2-7224, effective October 15,
1947, as Exhibit 7(c)).
4-B-4 -- Supplemental Indenture, dated as of December 1, 1935, supplementing said
Mortgage (filed with Form S-1, File No. 2-7224, effective October 15,
1947, as Exhibit 7(d)).
4-B-5 -- Supplemental Indenture, dated as of September 1, 1936, supplementing
said Mortgage (filed with Form S-1, File No. 2-7224, effective October
15, 1947, as Exhibit 7(e)).
4-B-6 -- Supplemental Indenture, dated as of January 1, 1941, supplementing said
Mortgage (filed with Form S-1, File No. 2-7224, effective October 15,
1947, as Exhibit 7(f)).
4-B-7 -- Supplemental Indenture, dated as of April 1, 1944, supplementing said
Mortgage (filed with Form S-1, File No. 2-7224, effective October 15,
1947, as Exhibit 7(g)).
4-B-8 -- Supplemental Indenture, dated as of September 1, 1947, supplementing
said Mortgage (filed with Form S-1, File No. 2-7224, effective October
15, 1947, as Exhibit 7(h)).
4-B-9 -- Supplemental Indenture, dated as of September 8, 1947, supplementing
said Mortgage (filed with Form S-1, File No. 2-10401, effective August
21, 1953, as Exhibit 4-B-9).
4-B-10 -- Supplemental Indenture, dated as of February 1, 1949, supplementing said
Mortgage (filed with Form S-1, File No. 2-7808, effective February 3,
1949, as Exhibit 7(j)).
4-B-11 -- Supplemental Indenture, dated as of March 1, 1949, supplementing said
Mortgage (filed with Form S-1, File No. 2-8877, effective April 6,
1951, as Exhibit 7(k)).
4-B-12 -- Supplemental Indenture, dated as of April 1, 1951, supplementing said
Mortgage (filed with Form S-1, File No. 2-8877, effective April 6,
1951, as Exhibit 7(l)).
4-B-13 -- Supplemental Indenture, dated as of September 1, 1953, supplementing
said Mortgage (filed with Form S-1, File No. 2-10401, effective August
21, 1953, as Exhibit 4-B-13).
4-B-14 -- Supplemental Indenture, dated as of October 1, 1954, supplementing said
Mortgage (filed with Form S-9, File No. 2-11297, effective December
30, 1954, as Exhibit 2-B-14).
4-B-15 -- Supplemental Indenture, dated as of January 1, 1955, supplementing said
Mortgage (filed with Form S-9, File No. 2-11297, effective December
30, 1954, as Exhibit 2-B-15).
4-B-16 -- Supplemental Indenture, dated as of May 1, 1956, supplementing said
Mortgage (filed with Form S-9, File No. 2-12402, effective April 26,
1956, as Exhibit 2-B-16).
4-B-17 -- Supplemental Indenture, dated as of January 1, 1960, supplementing said
Mortgage (filed with Form 10, effective June 29, 1961, as Exhibit
3-B-18).
4-B-18 -- Supplemental Indenture, dated as of February 1, 1960, supplementing said
Mortgage (filed with Form 10, effective June 29, 1961, as Exhibit
3-B-19).
</TABLE>
II-2
<PAGE> 12
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<S> <C>
4-B-19 -- Supplemental Indenture, dated as of February 1, 1962, supplementing said
Mortgage (filed with Form S-9, File No. 2-20577, effective August 16,
1962, as Exhibit 2-B-20).
4-B-20 -- Supplemental Indenture, dated as of August 1, 1962, supplementing said
Mortgage (filed with Form S-1, File No. 2-25367, effective August 23,
1966, as Exhibit 4-B-19).
4-B-21 -- Supplemental Indenture, dated as of June 15, 1964, supplementing said
Mortgage (filed with Form S-1, File No. 2-25367, effective August 23,
1966, as Exhibit 4-B-20).
4-B-22 -- Supplemental Indenture, dated as of February 1, 1965, supplementing said
Mortgage (filed with Form S-1, File No. 2-25367, effective August 23,
1966, as Exhibit 4-B-21).
4-B-23 -- Supplemental Indenture, dated as of April 1, 1967, supplementing said
Mortgage (filed with Form S-9, File No. 2-28023, effective February
15, 1968, as Exhibit 2-B-25).
4-B-24 -- Supplemental Indenture, dated as of February 1, 1968, supplementing said
Mortgage (filed with Form S-9, File No. 2-31304, effective January 21,
1969, as Exhibit 2-B-26).
4-B-25 -- Supplemental Indenture, dated as of February 1, 1969, supplementing said
Mortgage (filed with Form S-7, File No. 2-34289, effective August 27,
1969, as Exhibit 2-B-27).
4-B-26 -- Supplemental Indenture, dated as of September 1, 1969, supplementing
said Mortgage (filed with Form S-7, File No. 2-36095, effective
February 16, 1970, as Exhibit 2-B-39).
4-B-27 -- Supplemental Indenture, dated as of March 1, 1970, supplementing said
Mortgage (filed with Form S-7, File No. 2-37953, effective July 28,
1970, as Exhibit 2-B-42).
4-B-28 -- Supplemental Indenture, dated as of August 1, 1970, supplementing said
Mortgage (filed with Form S-7, File No. 2-39451, effective March 4,
1971, as Exhibit 2-B-28).
4-B-29 -- Supplemental Indenture, dated as of March 1, 1971, supplementing said
Mortgage (filed with Form S-7, File No. 2-42404, effective December 7,
1971, as Exhibit 2-B-29).
4-B-30 -- Supplemental Indenture, dated as of December 1, 1971, supplementing said
Mortgage (filed with Form S-7, File No. 2-43122, effective March 7,
1972, as Exhibit 2-B-30).
4-B-31 -- Supplemental Indenture, dated as of April 1, 1972, supplementing said
Mortgage (filed with Form S-7, File No. 2-46208, effective November
20, 1972, as Exhibit 2-B-31).
4-B-32 -- Supplemental Indenture, dated as of December 1, 1972, supplementing said
Mortgage (filed with Form S-7, File No. 2-48058, effective June 5,
1973, as Exhibit 2-B-32).
4-B-33 -- Supplemental Indenture, dated as of June 1, 1973, supplementing said
Mortgage (filed with Form S-7, File No. 2-49333, effective November 5,
1973, as Exhibit 2-B-33).
4-B-34 -- Supplemental Indenture, dated as of November 1, 1973, supplementing said
Mortgage (filed with Form S-7, File No. 2-50493, effective April 25,
1974, as Exhibit 2-B-34).
4-B-35 -- Supplemental Indenture, dated as of May 1, 1974, supplementing said
Mortgage (filed with Form S-7, File No. 2-52669, effective February
11, 1975, as Exhibit 2-B-35).
</TABLE>
II-3
<PAGE> 13
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<S> <C>
4-B-36 -- Supplemental Indenture, dated as of February 1, 1975, supplementing said
Mortgage (filed with Form S-7, File No. 2-57118, effective October 5,
1976, as Exhibit 2-B-36).
4-B-37 -- Supplemental Indenture, dated as of July 1, 1975, supplementing said
Mortgage (filed with Form S-7, File No. 2-57118, effective October 5,
1976, as Exhibit 2-B-37).
4-B-38 -- Supplemental Indenture, dated as of October 1, 1976, supplementing said
Mortgage (filed with Form S-7, File No. 2-59494, effective August 10,
1977, as Exhibit 2-B-38).
4-B-39 -- Supplemental Indenture, dated as of September 1, 1977, supplementing
said Mortgage (filed with Form S-7, File No. 2-61995, effective July
26, 1978, as Exhibit 2-B-39).
4-B-40 -- Supplemental Indenture, dated as of August 1, 1978, supplementing said
Mortgage (filed with Form S-7, File No. 2-64541, effective June 7,
1979, as Exhibit 2-B-40).
4-B-41 -- Supplemental Indenture, dated as of June 1, 1979, supplementing said
Mortgage (filed with Form S-7, File No. 2-65371, effective October 2,
1979, as Exhibit 2-B-41).
4-B-42 -- Supplemental Indenture, dated as of October 1, 1979, supplementing said
Mortgage (filed with Form S-7, File No. 2-66659, effective March 12,
1980, as Exhibit 2-B-42).
4-B-43 -- Supplemental Indenture, dated as of March 1, 1980, supplementing said
Mortgage (filed with Form S-16, File No. 2-68571, effective August 19,
1980, as Exhibit 2-B-43).
4-B-44 -- Supplemental Indenture, dated as of August 1, 1980, supplementing said
Mortgage (filed with Form S-16, File No. 2-75951, effective February
23, 1982, as Exhibit 2-B-44).
4-B-45 -- Supplemental Indenture, dated as of March 1, 1982, supplementing said
Mortgage (filed with Form S-3, File No. 2-78882, effective August 30,
1982, as Exhibit 4-B-45).
4-B-46 -- Supplemental Indenture, dated as of September 1, 1982, supplementing
said Mortgage (filed with Form S-3, File No. 2-95931, effective April
1, 1985, as Exhibit 4-B-46).
4-B-47 -- Supplemental Indenture, dated as of May 1, 1983, supplementing said
Mortgage (filed with Form S-3, File No. 2-95931, effective April 1,
1985, as Exhibit 4-B-47).
4-B-48 -- Supplemental Indenture, dated as of September 1, 1983, supplementing
said Mortgage (filed with Form S-3, File No. 2-95931, effective April
1, 1985, as Exhibit 4-B-48).
4-B-49 -- Supplemental Indenture, dated as of September 1, 1984, supplementing
said Mortgage (filed with Form S-3, File No. 2-95931, effective April
1, 1985, as Exhibit 4-B-49).
4-B-50 -- Supplemental Indenture, dated as of March 1, 1985, supplementing said
Mortgage (filed with Form S-3, File No. 2-95931, effective April 1,
1985, as Exhibit 4-B-50).
4-B-51 -- Supplemental Indenture, dated as of December 1, 1985, supplementing said
Mortgage (filed with Form S-3, File No. 33-5163, effective May 2,
1986, as Exhibit 4-B-51).
</TABLE>
II-4
<PAGE> 14
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<S> <C>
4-B-52 -- Supplemental Indenture, dated as of April 1, 1986, supplementing said
Mortgage (filed with Form S-3, File No. 33-5163, effective May 2,
1986, as Exhibit 4-B-52).
4-B-53 -- Supplemental Indenture, dated as of May 1, 1986, supplementing said
Mortgage (filed with Form 10-K for the year ended December 31, 1986,
File No. 1-4928, as Exhibit 4-B-53).
4-B-54 -- Supplemental Indenture, dated as of June 1, 1986, supplementing said
Mortgage (filed with Form 10-K for the year ended December 31, 1986,
File No. 1-4928, as Exhibit 4-B-54).
4-B-55 -- Supplemental Indenture, dated as of February 1, 1987, supplementing said
Mortgage (filed with Form 10-K for the year ended December 31, 1986,
File No. 1-4928, as Exhibit 4-B-55).
4-B-56 -- Supplemental Indenture, dated as of February 15, 1987, supplementing
said Mortgage (filed with Form 10-K for the year ended December 31,
1986, File No. 1-4928, as Exhibit 4-B-56).
4-B-57 -- Supplemental Indenture, dated as of March 1, 1987, supplementing said
Mortgage (filed with Form 10-K for the year ended December 31, 1986,
File No. 1-4928, as Exhibit 4-B-57).
4-B-58 -- Supplemental Indenture, dated as of October 1, 1987, supplementing said
Mortgage (filed with Form 10-K for the year ended December 31, 1987,
File No. 1-4928, as Exhibit 4-B-58).
4-B-59 -- Supplemental Indenture, dated as of February 1, 1990, supplementing said
Mortgage (filed with Form 10-K for the year ended December 31, 1989,
File No. 1-4928, as Exhibit 4-B-59).
4-B-60 -- Supplemental Indenture, dated as of March 1, 1990, supplementing said
Mortgage (filed with Form 10-K for the year ended December 31, 1990,
File No. 1-4928, as Exhibit 4-B-60).
4-B-61 -- Supplemental Indenture, dated as of May 1, 1990, supplementing said
Mortgage (filed with Form 10-K for the year ended December 31, 1990,
File No. 1-4928, as Exhibit 4-B-61).
4-B-62 -- Supplemental Indenture, dated as of May 15, 1990, supplementing said
Mortgage (filed with Form 10-K for the year ended December 31, 1990,
File No. 1-4928, as Exhibit 4-B-62).
4-B-63 -- Supplemental Indenture, dated as of March 1, 1991, supplementing said
Mortgage (filed with Form 10-K for the year ended December 31, 1990,
File No. 1-4928, as Exhibit 4-B-63).
4-B-64 -- Supplemental Indenture, dated as of July 1, 1991, supplementing said
Mortgage (filed with Form S-3, File No. 33-45501, effective February
13, 1992, as Exhibit 4-B-64).
4-B-65 -- Supplemental Indenture, dated as of December 1, 1991, supplementing said
Mortgage (filed with Form S-3, File No. 33-45501, effective February
13, 1992, as Exhibit 4-B-65).
4-B-66 -- Supplemental Indenture, dated as of March 1, 1992, supplementing said
Mortgage (filed with Form 10-K for the year ended December 31, 1991,
File No. 1-4928, as Exhibit 4-B-66).
</TABLE>
II-5
<PAGE> 15
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<S> <C>
4-B-67 -- Supplemental Indenture, dated as of June 1, 1992, supplementing said
Mortgage (filed with Form S-3, File No. 33-50592, effective August 11,
1992, as Exhibit 4-B-67).
4-B-68 -- Supplemental Indenture, dated as of July 1, 1992, supplementing said
Mortgage (filed with Form S-3, File No. 33-50592, effective August 11,
1992, as Exhibit 4-B-68).
4-B-69 -- Supplemental Indenture, dated as of September 1, 1992, supplementing
said Mortgage (filed with Form S-3, File No. 33-53308, effective
November 24, 1992, as Exhibit 4-B-69).
4-B-70 -- Supplemental Indenture, dated as of February 1, 1993, supplementing said
Mortgage (filed with Form 10-K for the year ended December 31, 1992,
File No. 1-4928, as Exhibit 4-B-70).
4-B-71 -- Supplemental Indenture, dated as of March 1, 1993, supplementing said
Mortgage (filed with Form S-3, File No. 33-59448, effective March 17,
1993, as Exhibit 4-B-71).
4-B-72 -- Supplemental Indenture, dated as of April 1, 1993, supplementing said
Mortgage (filed with Form S-3, File No. 33-50543, effective October
20, 1993, as Exhibit 4-B-72).
4-B-73 -- Supplemental Indenture, dated as of May 1, 1993, supplementing said
Mortgage (filed with Form S-3, File No. 33-50543, effective October
20, 1993, as Exhibit 4-B-73).
4-B-74 -- Supplemental Indenture, dated as of June 1, 1993, supplementing said
Mortgage (filed with Form S-3, File No. 33-50543, effective October
20, 1993, as Exhibit 4-B-74).
4-B-75 -- Supplemental Indenture, dated as of July 1, 1993, supplementing said
Mortgage (filed with Form S-3, File No. 33-50543, effective October
20, 1993, as Exhibit 4-B-75).
4-B-76 -- Supplemental Indenture, dated as of August 1, 1993, supplementing said
Mortgage (filed with Form S-3, File No. 33-50543, effective October
20, 1993, as Exhibit 4-B-76).
4-B-77 -- Supplemental Indenture, dated as of August 20, 1993, supplementing said
Mortgage (filed with Form S-3, File No. 33-50543, effective October
20, 1993, as Exhibit 4-B-77).
4-B-78 -- Supplemental Indenture, dated as of May 1, 1994, supplementing said
Mortgage (filed with Form 10-K for the year ended December 31, 1994,
File No. 1-4928, as Exhibit 4-B-78).
4-B-79 -- Supplemental Indenture, dated as of November 1, 1994, supplementing said
Mortgage (filed with Form 10-K for the year ended December 31, 1994,
File No. 1-4928, as Exhibit 4-B-79).
4-B-80 -- Supplemental Indenture, dated as of August 1, 1995, supplementing said
Mortgage (filed with Form 10-K for the year ended December 31, 1995,
File No. 1-4928, as Exhibit 4-B-80).
4-C -- Instrument of Resignation, Appointment and Acceptance among the
registrant, Morgan Guaranty Trust Company of New York, as Trustee, and
Chemical Bank, as Successor Trustee, dated as of August 30, 1994
(filed with Form 10-K for the year ended December 31, 1994, File No.
1-4928, as Exhibit 4-C).
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
registration statement:
II-6
<PAGE> 16
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this registration statement
or any material change to such information in this registration
statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in
this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for the purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the indemnification provisions described in Item 15 above or in
contractual arrangements pursuant thereto, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-7
<PAGE> 17
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT OR AMENDMENT THERETO TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF CHARLOTTE AND STATE OF NORTH CAROLINA,
ON THE 17TH DAY OF APRIL, 1996.
DUKE POWER COMPANY
Registrant
By: W. H. GRIGG
-------------------------
Chairman of the Board and
Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT OR AMENDMENT THERETO HAS BEEN SIGNED BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATE INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------- ---------------------------------------- ---------------
<S> <C> <C>
W. H. GRIGG Chairman of the Board and Chief April 17, 1996
Executive Officer
(Principal Executive Officer)
RICHARD J. OSBORNE Senior Vice President and April 17, 1996
Chief Financial Officer
(Principal Financial Officer)
JEFFREY L. BOYER Controller (Principal April 17, 1996
Accounting Officer)
G. ALEX BERNHARDT
CRANDALL C. BOWLES
ROBERT J. BROWN
W. A. COLEY
STEVE C. GRIFFITH, JR.
W. H. GRIGG
GEORGE DEAN JOHNSON, JR. A majority of the Directors April 17, 1996
W. W. JOHNSON
MAX LENNON
JAMES G. MARTIN
BUCK MICKEL
R. B. PRIORY
RUSSELL M. ROBINSON, II
</TABLE>
ELLEN T. RUFF, by signing her name hereto, does hereby sign this document
on behalf of the registrant and on behalf of each of the above-named persons
pursuant to a power of attorney duly executed by the registrant and such
persons, filed with the Securities and Exchange Commission as an exhibit hereto.
ELLEN T. RUFF
----------------
ELLEN T. RUFF
Attorney-in-fact
II-8
<PAGE> 18
EXHIBIT 12
DUKE POWER COMPANY
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------------------------------------------------
1995 1994 1993 1992 1991
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Earnings Before Income Taxes........... $1,180,979 $1,035,895 $1,036,392 $ 812,053 $ 876,641
Fixed Charges.......................... 299,633 278,117 281,428 326,575 310,030
---------- ---------- ---------- ---------- ----------
Total..................... $1,480,612 $1,314,012 $1,317,820 $1,138,628 $1,186,671
========== ========== ========== ========== ==========
Fixed Charges
Interest on long-term debt......... $ 253,058 $ 237,063 $ 243,047 $ 257,149 $ 269,419
Other interest..................... 21,143 16,814 17,704 47,239 23,947
Amortization of debt discount,
premium, and expense............. 16,239 16,340 13,300 8,497 5,243
Interest component of rentals...... 9,193 7,900 7,377 13,690 11,421
---------- ---------- ---------- ---------- ----------
Fixed Charges............. $ 299,633 $ 278,117 $ 281,428 $ 326,575 $ 310,030
========== ========== ========== ========== ==========
Ratio of Earnings to Fixed Charges..... 4.94 4.72 4.68 3.49 3.83
</TABLE>
II-9
<PAGE> 19
EXHIBIT 23(A)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in Post-Effective Amendment
No. 1 to Registration Statement No. 33-50543 on Form S-3 of Duke Power Company
and to the incorporation by reference in this Registration Statement on Form S-3
of Duke Power Company of our report dated February 9, 1996, appearing in the
annual report on Form 10-K of Duke Power Company for the year ended December 31,
1995 filed with the Securities and Exchange Commission, and to the reference to
us under the heading "Experts" in the Prospectus which is a part of these
Registration Statements.
DELOITTE & TOUCHE LLP
- ------------------------
DELOITTE & TOUCHE LLP
Charlotte, North Carolina
April 17, 1996
II-10
<PAGE> 20
EXHIBIT 23(B)
CONSENT OF COUNSEL
The consent of Steve C. Griffith, Jr., Esq. is contained in his opinion
filed as Exhibit 5 to this Registration Statement.
II-11
<PAGE> 21
EXHIBIT 23(C)
We hereby consent to the reference to our firm under the heading "Legal
Opinions" in the Prospectus forming a part of this Registration Statement. In
giving such consent we do not thereby admit that we come within the category of
persons whose consent is required under Section 7 of the Securities Act of 1933
and the rules and regulations of the Securities and Exchange Commission
thereunder.
DEWEY BALLANTINE
- ------------------------
DEWEY BALLANTINE
New York, New York
April 17, 1996
II-12
<PAGE> 22
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- --------------------- ----------------------------------------------------------
<S> <C>
1 -- Form of Underwriting Agreement.
4-B-81 -- Form of Supplemental Indenture relating to the New Bonds.
5 -- Opinion of Steve C. Griffith, Jr., Esq.
12 -- Computation of Ratio of Earnings to Fixed Charges (see
page II-9 of Registration Statement).
23(A) -- Independent Auditors' Consent (see page II-10 of
Registration Statement).
23(B) -- Consent of Steve C. Griffith, Jr., Esq. (included in
Exhibit 5 -- see page II-11 of Registration Statement).
23(C) -- Consent of Dewey Ballantine (see page II-12 of
Registration Statement).
24(A) -- Copy of power of attorney authorizing Ellen T. Ruff and
others to sign the registration statement on behalf of
the registrant and certain of its directors and
officers.
24(B) -- Certified copy of resolution of the Board of Directors of
the registrant authorizing power of attorney.
25 -- Statement of Eligibility of the Trustee on Form T-1 of
Chemical Bank.
</TABLE>
<PAGE> 1
(Proof of April 17, 1996)
$
DUKE POWER COMPANY
FIRST AND REFUNDING MORTGAGE BONDS,
% SERIES DUE
UNDERWRITING AGREEMENT
, 199
Gentlemen:
1. Introductory. DUKE POWER COMPANY, a North Carolina corporation
("Company"), proposes to issue and sell $ aggregate principal amount
of First and Refunding Mortgage Bonds, % Series Due ("Bonds"), to be
issued pursuant to the provisions of a First and Refunding Mortgage, dated as of
December 1, 1927 ("Original Indenture"), from the Company to Chemical Bank, as
successor Trustee to Morgan Guaranty Trust Company of New York, as amended and
supplemented by various supplemental indentures, including the supplemental
indenture dated as of , (the Original Indenture, as so amended and
supplemented, being hereinafter called the "Mortgage"), and hereby agrees with
you (the "Underwriter") as follows:
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the Underwriter that:
(a) A registration statement (No. 33- ), including a prospectus,
relating to the Bonds has been filed with the Securities and Exchange
Commission ("Commission") under the Securities Act of 1933 (the "1933 Act")
and has been declared effective by the Commission. The Company will file
with, or will transmit for filing to, the Commission a supplemented
prospectus relating to the Bonds pursuant to Rule 424 under the 1933 Act.
The registration statement as amended at the date of this Agreement
(including all documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the 1933 Act) is hereinafter referred to as the
"Registration Statement", and such supplemented prospectus (including all
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act) is hereinafter referred to as the "Prospectus".
(b) The Registration Statement conforms and the Prospectus will
conform in all material respects to the requirements of the 1933 Act and
the rules and regulations thereunder ("1933 Act Regulations"), and the
Registration Statement does not and the Prospectus will not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, except that the foregoing does not apply to statements or
omissions in any such document based upon written information furnished to
the Company by the Underwriter specifically for use therein.
(c) The documents incorporated by reference in the Prospectus pursuant
to Item 12 of Form S-3 under the 1933 Act, at the time they were filed with
the Commission, complied in all material respects with the requirements of
the Securities Exchange Act of 1934 (the "1934 Act") and the rules and
regulations of the Commission thereunder (the "1934 Act Regulations"), and,
when read together with the other information in the Prospectus, do not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not
<PAGE> 2
misleading, and any documents deemed to be incorporated by reference in the
Prospectus will, when they are filed with the Commission, comply in all
material respects with the requirements of the 1934 Act and the 1934 Act
Regulations, and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they are made, not misleading.
3. Purchase, Sale and Delivery of Bonds. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriter, and the Underwriter agrees to purchase from the Company, the entire
principal amount of the Bonds at a purchase price of % of the principal
amount thereof, plus accrued interest from , to the Closing Date
(as hereinafter defined).
Payment of the purchase price for the Bonds to be purchased by the
Underwriter shall be made at the offices of Dewey Ballantine, 1301 Avenue of the
Americas, New York, N.Y., or at such other place as shall be mutually agreed
upon by you and the Company, at 10:00 A.M., New York City time, on ,
or such other time not later than seven full business days after such date
as shall be agreed upon by you and the Company (the "Closing Date"). Payment
shall be made to the Company by certified or official bank check or checks in
New York Clearing House or similar next day funds, payable to the order of the
Company, against delivery to you of the Bonds. The Bonds shall be in such
denominations and registered in such names as you may request in writing at
least two full business days before the Closing Date.
4. Offering by the Underwriter. It is understood that the Underwriter
proposes to offer the Bonds for sale to the public as set forth in the
Prospectus.
5. Covenants of the Company. The Company covenants and agrees with the
Underwriter that:
(a) The Company will advise you promptly of any amendment or
supplementation of the Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect of
the Registration Statement, and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(b) If at any time when a prospectus relating to the Bonds is required
to be delivered under the 1933 Act any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact, or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the 1933 Act, the Company promptly will
prepare and file with the Commission an amendment, supplement or an
appropriate document pursuant to Section 13 or 14 of the 1934 Act which
will correct such statement or omission or which will effect such
compliance.
(c) The Company, during the period when a prospectus relating to the
Bonds is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the Commission pursuant to Section
13 or 14 of the 1934 Act.
(d) The Company will make generally available to its security holders,
in each case as soon as practicable but not later than 60 days after the
close of the period covered thereby, earnings statements (in form complying
with the provisions of Section 11(a) of the 1933 Act, which need not be
certified by independent certified public accountants unless required by
the 1933 Act) covering (i) a twelve-month period beginning not later than
the first day of the Company's fiscal quarter next following the effective
date of the Registration Statement and (ii) a twelve-month period beginning
not later than the first day of the Company's fiscal quarter next following
the date of this Agreement.
(e) The Company will furnish to you copies of the Registration
Statement ( of which will be signed and will include all exhibits other
than those incorporated by reference), the Prospectus, and all amendments
and supplements to such documents, in each case as soon as available and in
such quantities as you reasonably request.
2
<PAGE> 3
(f) The Company will arrange or cooperate in arrangements for the
qualification of the Bonds for sale under the laws of such jurisdictions as
you designate and will continue such qualifications in effect so long as
required for the distribution; provided, however, that the Company shall
not be required to qualify as a foreign corporation or to file any general
consents to service of process under the laws of any state where it is not
now so subject.
(g) The Company will pay all expenses incident to the performance of
its obligations under this Agreement including (i) the printing and filing
of the Registration Statement and the printing of this Agreement, the Blue
Sky Survey and any Underwriter's Questionnaire, (ii) the issuance and
delivery of the Bonds to the Underwriter, (iii) the fees and disbursements
of counsel for the Underwriter in connection with the qualification of the
Bonds under the securities laws of any jurisdiction in accordance with the
provisions of Section 5(f) and in connection with the preparation of the
Blue Sky Survey, such fees not to exceed $5,000, and (iv) the printing and
delivery to the Underwriter, in quantities as hereinabove referred to, of
copies of the Registration Statement and any amendments thereto, and of the
Prospectus and any amendments or supplements thereto.
6. Conditions of the Obligations of the Underwriter. The obligations of
the Underwriter to purchase and pay for the Bonds will be subject to the
accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the statements of Company officers made pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions precedent:
(a) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or you, shall be threatened by the Commission.
(b) Prior to the Closing Date, the rating assigned by Moody's
Investors Service, Inc. or Standard & Poor's Corporation to any debt
securities or preferred stock of the Company as of the date of this
Agreement shall not have been lowered.
(c) Since the respective most recent dates as of which information is
given in the Prospectus and up to the Closing Date, there shall not have
been any material adverse change in the condition of the Company, financial
or otherwise, except as reflected in or contemplated by the Prospectus,
and, since such dates and up to the Closing Date, there shall not have been
any material transaction entered into by the Company other than
transactions contemplated by the Prospectus and transactions in the
ordinary course of business.
(d) You shall have received an opinion of Steve C. Griffith, Jr.,
Esq., General Counsel to the Company, dated the Closing Date, to the effect
that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of North
Carolina, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus.
(ii) The Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which it owns
or leases substantial properties or in which the conduct of its business
requires such qualification.
(iii) The Mortgage has been duly authorized, executed and delivered
by the Company, is duly qualified under the Trust Indenture Act of 1939,
and is a legal, valid and enforceable instrument in accordance with its
terms, except (x) as the same may be limited by the laws of the States
of North Carolina and South Carolina (in which States such counsel is
advised all physical property of the Company subject to the Mortgage is
located except for certain interconnection lines) with respect to or
affecting the remedies to enforce the security provided by the Mortgage,
which laws do not, in the opinion of such counsel, make inadequate the
remedies necessary for the realization of the benefits of such security,
and by bankruptcy, insolvency, reorganization or other laws affecting
the enforcement of creditors' rights, and (y) that the provisions of the
Mortgage subjecting to the lien
3
<PAGE> 4
thereof the revenues and income from the mortgaged property may not be
effective prior to the delivery or taking of possession of such revenues
or income or of the mortgaged property by or on behalf of the
bondholders.
(iv) The Bonds have been duly authorized by all necessary corporate
action and, when the same have been executed and authenticated as
specified in the Mortgage and delivered to the Underwriter against
payment of the consideration therefor specified in this Agreement, will
be legal, valid and binding obligations of the Company enforceable in
accordance with their terms, except, in each case, as the same may be
limited by bankruptcy, insolvency, reorganization or other laws
affecting the enforcement of creditors' rights, and are entitled to the
benefits and security afforded by the Mortgage in accordance with the
terms of the Mortgage and the Bonds, except as set forth in paragraph
(iii) above.
(v) The Company has good title to all properties owned by it,
subject only (a) to the lien of the Mortgage, (b) to permitted
encumbrances as defined in the Mortgage, (c) to minor exceptions and
defects which do not, in the aggregate, in the opinion of such counsel,
materially interfere with the use by the Company of such properties for
the purposes for which they are held, materially detract from the value
of said properties or in any material way impair the security afforded
by the Mortgage, and (d) in the case of the Company's existing
hydroelectric plants, to provisions of licenses issued by the Federal
Power Commission or the Federal Energy Regulatory Commission and to the
provisions of the Federal Power Act.
(vi) The Mortgage complies as to form with all applicable laws of
the States wherein the properties subjected or intended to be subjected
to the lien of the Mortgage are located, including all applicable
recording laws, and constitutes a valid, direct first mortgage lien on
all properties and franchises purported to be owned by the Company,
except such property as is specifically excepted from the lien thereof,
subject only to the liens, charges and encumbrances stated in paragraph
(v) above; all fixed electric properties hereafter acquired by the
Company will, upon such acquisition, become subject to the lien of the
Mortgage, subject, however, to liens or charges of the character
permitted to exist by the Mortgage, and to liens, if any, existing or
placed on such property at the time of the acquisition thereof by the
Company; and the description of such property and franchises in the
Mortgage is adequate to constitute the same a lien on such property and
franchises of the Company except as aforesaid.
(vii) The Company holds valid and subsisting franchises, licenses
and permits in all communities wherein it operates its properties, which
are free from unduly burdensome restrictions, are individually
satisfactory and vest in the Company adequate authority to operate its
public utility system therein, except that in a few municipalities the
Company is operating either without franchises or with franchises the
validity of which might possibly be called into question; in the opinion
of such counsel, however, the Company's franchises, licenses and permits
relating to its public utility business, as a system, are satisfactory
for the adequate conduct of the business of the Company in the territory
which it serves, the rights of the Company to maintain transmission
lines through unincorporated communities and over public lands not
located in incorporated communities and over private rights of way are,
as a system, satisfactory for the adequate conduct of the business of
the Company in the territory which it serves, and, as a public utility
corporation operating under the laws of the States of North Carolina and
South Carolina, the Company has adequate rights to operate its system.
(viii) The Original Indenture and the supplemental indentures
thereto, other than the supplemental indenture dated as of ,
, have been duly recorded or filed for recordation in all such
offices as are necessary to perfect and to preserve and protect the lien
of the Mortgage upon the property intended to be subjected to the lien
thereof, and upon the filing and recording of the supplemental indenture
dated as of , , no other recording or any periodic or other
refiling or rerecording of the Mortgage is or will be required in order
to perfect and to preserve and protect the lien of the Mortgage upon
such property, and there are no mortgage, recording or other
4
<PAGE> 5
taxes required to be paid in connection with such filing and recording
or in connection with the issuance of the Bonds other than customary
filing and recording fees.
(ix) The Registration Statement has become effective under the 1933
Act, and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or threatened under the 1933 Act.
(x) This Agreement has been duly authorized, executed and delivered
by the Company.
(xi) The North Carolina Utilities Commission and The Public Service
Commission of South Carolina have issued appropriate orders with respect
to the issuance and sale of the Bonds in accordance with this Agreement,
and, to the best of the knowledge of such counsel, such orders are still
in effect; the issuance and sale of the Bonds to the Underwriter are in
conformity with the terms of such orders; and no other authorization,
approval or consent of any other governmental body (other than in
connection or compliance with the provisions of the securities or blue
sky laws of any jurisdiction) is legally required for the issuance and
sale of the Bonds pursuant to this Agreement.
(xii) The performance by the Company of this Agreement will not
contravene any of the provisions of the Restated Articles of
Incorporation or By-Laws of the Company.
(xiii) The descriptions in the Registration Statement and
Prospectus of legal or governmental proceedings are accurate and fairly
present the information required to be shown and such counsel does not
know of any other legal or governmental proceedings required to be
described in the Registration Statement or Prospectus which are not
described as required.
(e) You shall have received an opinion or opinions of Dewey
Ballantine, counsel to the Company, dated the Closing Date, with respect to
the matters set forth in (i), (iii), (iv) and (ix) through (xii) of Section
6(d) and to the further effect that:
(i) The Registration Statement as of the date of effectiveness
under the 1933 Act and the Prospectus as of the date it was filed with,
or transmitted for filing to, the Commission (in each case, other than
the financial statements and other financial information included
therein, as to which no opinion need be rendered) complied as to form in
all material respects with the requirements of the 1933 Act and the 1933
Act Regulations, and nothing has come to their attention that would lead
them to believe that the Registration Statement as of the date of
effectiveness under the 1933 Act (or if an amendment to such
Registration Statement or an annual report on Form 10-K has been filed
by the Company with the Commission subsequent to the effectiveness of
the Registration Statement, then at the time of the most recent such
filing) contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus as of the
date it was filed with, or transmitted for filing to, the Commission and
at the Closing Date contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(ii) The statements made in the Prospectus under the captions
"Description of the New Bonds" and "Certain Terms of the Offered Bonds",
insofar as they purport to summarize provisions of documents
specifically referred to therein, fairly present the information called
for with respect thereto by Form S-3.
In giving their opinion Dewey Ballantine may rely on the opinion of
Steve C. Griffith, Jr., Esq. as to matters of the laws of North Carolina
and South Carolina.
(f) You shall have received the opinion of Willkie Farr & Gallagher,
counsel for the Underwriter, dated the Closing Date, with respect to the
matters set forth in (i), (iii), (iv) and (ix) through (xi) of Section 6(d)
and in (i) and (ii) of Section 6(e) and other related matters as you may
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of
5
<PAGE> 6
enabling them to pass upon such matters. In giving their opinion Willkie
Farr & Gallagher may rely on the opinion of Steve C. Griffith, Jr., Esq. as
to matters of the laws of North Carolina and South Carolina.
(g) You shall have received a certificate of the President or any Vice
President and a principal financial or accounting officer of the Company,
dated the Closing Date, in which such officers, to the best of their
knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are true
and correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to the Closing Date, that the conditions specified in Section 6(b)
and Section 6(c) have been satisfied, and that no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are threatened by the
Commission.
(h) On the date of this Agreement, you shall have received from
Deloitte & Touche a letter dated the date hereof, in form and substance
reasonably satisfactory to you, to the effect that (i) they are independent
certified public accountants with respect to the Company within the meaning
of the 1933 Act and the applicable published 1933 Act Regulations; (ii) in
their opinion, the financial statements and supplemental schedules
incorporated by reference in the Registration Statement from the Company's
Form 10-K Annual Reports filed with the Commission under Section 13 of the
1934 Act (such 10-K Annual Report for December 31 of the most recent year
for which the Company has filed an Annual Report on Form 10-K, or, if the
Company has filed a Current Report on Form 8-K including audited financial
statements for a later year but has not theretofore filed an Annual Report
on Form 10-K for such year, such Current Report on Form 8-K, being
hereinafter referred to as the "Form 10-K") comply as to form in all
material respects with the applicable accounting requirements of the 1934
Act and the applicable published 1934 Act Regulations; (iii) they have read
the unaudited balance sheets of the Company as of the end of each quarter
since the end of the year covered by the Form 10-K and the related
unaudited statements of income and cash flows of the Company for the
interim periods ended as of the end of each of the quarters since the end
of the year covered by the Form 10-K and the corresponding interim periods
in the preceding year incorporated by reference in the Registration
Statement and included in the Company's Form 10-Q Quarterly Reports, if
any, filed with the Commission under Section 13 of the 1934 Act for the
quarters ended since the end of the year covered by the Form 10-K (the
"Form 10-Q's"); and on the basis of a reading of such unaudited balance
sheets and such unaudited statements of income and cash flows and of the
latest available unaudited financial statements of the Company, the minutes
of the meetings of shareholders, the Board of Directors and the Management
Committee of the Board of Directors of the Company as set forth in the
minute books at a specified date not more than five days prior to the date
of such letter and inquiries of officers of the Company who have
responsibility for financial and accounting matters (it being understood
that the foregoing procedures do not constitute an examination made in
accordance with generally accepted auditing standards and that they would
not necessarily reveal matters of significance with respect to the comments
made in such letter, and, accordingly, that Deloitte & Touche make no
representation as to the sufficiency of such procedures for your purposes),
nothing has come to their attention which caused them to believe that (A)
any material modifications should be made to the unaudited financial
statements of the Company as at the end of each quarter since the end of
the year covered by the Form 10-K and for the interim periods ended as of
the end of each of the quarters since the end of the year covered by the
Form 10-K and the corresponding interim periods in the preceding year
included in the Form 10-Q's and incorporated by reference in the
Registration Statement do not comply as to form in all material respects
with the applicable accounting requirements of the 1934 Act and the
applicable published 1934 Act Regulations or (B) at a specified date not
more than five days prior to the date of such letter there was any change
in the capital stock (except for the issuance of common stock under the
Company's Stock Purchase-Savings Program for Employees, Employees' Stock
Ownership Plan, Stock Purchase and Dividend Reinvestment Plan or Stock
Ownership Plan for Nonemployee Directors) or long-term debt of the Company
(except for increases resulting from issuances of debt pursuant to the
Company's Medium-Term Notes Program or reductions resulting from
redemptions, purchases, payments of sinking fund obligations or scheduled
maturities) or any decrease in its net assets, in each case as compared
with amounts shown in the most recent balance sheet of the Company
incorporated by
6
<PAGE> 7
reference in the Prospectus except, with respect to clause (B), for changes
or decreases which the Prospectus discloses have occurred or may occur; and
(iv) they have carried out certain procedures, and made certain findings
confirming certain other financial information contained or incorporated by
reference in the Registration Statement and Prospectus.
(i) At the Closing Date you shall have received from Deloitte & Touche
a letter, dated the Closing Date, to the effect that such accountants
reaffirm the statements made in the letter furnished pursuant to paragraph
(h) of this Section 6, except that the specified date referred to shall be
a date not more than four days prior to the Closing Date.
The Company will furnish you with such conformed copies of such opinions,
certificates, letters and documents as you reasonably request.
7. Indemnification. (a) The Company agrees to indemnify and hold harmless
the Underwriter and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the 1933 Act, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus, the prospectus constituting a part of the Registration
Statement in the form in which it became effective or the Prospectus (or
any amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, unless such statement or omission or such alleged statement or
omission was made in reliance upon and in conformity with written
information furnished to the Company by the Underwriter expressly for use
in the Registration Statement (or any amendment thereto) or such
preliminary prospectus, such prospectus, or the Prospectus (or any
amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission or any such alleged untrue statement
or omission, if such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent
that any such expense is not paid under (i) or (ii) above.
In no case shall the Company be liable under this indemnity agreement with
respect to any claim made against the Underwriter or any such controlling person
unless the Company shall be notified in writing of the nature of the claim
within a reasonable time after the assertion thereof, but failure so to notify
the Company shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. The Company shall be entitled to
participate at its own expense in the defense, or, if it so elects, within a
reasonable time after receipt of such notice, to assume the defense of any suit
brought to enforce any such claim, but if it so elects to assume the defense,
such defense shall be conducted by counsel chosen by it and approved by the
Underwriter or controlling person or persons, defendant or defendants in any
suit so brought, which approval shall not be unreasonably withheld. In any such
suit, the Underwriter or any such controlling person shall have the right to
employ its own counsel, but the fees and expenses of such counsel shall be at
the expense of the Underwriter or such controlling person unless (i) the Company
and the Underwriter shall have mutually agreed to the employment of such
counsel, or (ii) the named parties to any such action (including any impleaded
parties) include both the Underwriter or such controlling person and the Company
and the Underwriter or such controlling person shall have been advised by such
counsel that a conflict of interest between the Company and the Underwriter or
such controlling person may arise and for this reason it is not
7
<PAGE> 8
desirable for the same counsel to represent both the indemnifying party and also
the indemnified party (it being understood, however, that the Company shall not,
in connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys for the Underwriter and all such
controlling persons, which firm shall be designated in writing by you). The
Company agrees to notify you within a reasonable time of the assertion of any
claim against it, any of its officers or directors or any person who controls
the Company within the meaning of Section 15 of the 1933 Act, in connection with
the sale of the Bonds.
(b) The Underwriter agrees that it will indemnify and hold harmless the
Company, its directors, and each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act to the same extent as the indemnity contained in
subsection (a) of this Section, but only with respect to statements or omissions
made in the Registration Statement (or any amendment thereto) or any preliminary
prospectus, such prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by the Underwriter expressly for use in the Registration
Statement (or any amendment thereto), such preliminary prospectus, such
prospectus or the Prospectus (or any amendment or supplement thereto). In case
any action shall be brought against the Company or any person so indemnified
based on the Registration Statement (or any amendment thereto) or such
preliminary prospectus, such prospectus or the Prospectus (or any amendment or
supplement thereto) and in respect of which indemnity may be sought against the
Underwriter, the Underwriter shall have the rights and duties given to the
Company, and the Company and each person so indemnified shall have the rights
and duties given to the Underwriter, by the provisions of subsection (a) of this
Section.
8. Termination of this Agreement. (a) You shall have the right to
terminate this Agreement by giving the notice indicated below in this Section at
any time at or prior to the Closing Date if (i) trading on the New York Stock
Exchange shall be suspended by that Exchange or by order of the Commission or
any other governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by either Federal or New York authorities, or (iii)
there shall have occurred any outbreak of hostilities or other national or
international calamity or crisis, or any declaration of war or a national
emergency by the United States, the effect of which on the financial markets of
the United States shall be such as, in your reasonable judgment, to make it
impracticable for you to enforce contracts for the sale of the Bonds. If you
shall so terminate this Agreement, such termination shall be without liability
of any party to any other party except for any expenses to be paid or reimbursed
by the Company pursuant to Section 5(g).
(b) If the Underwriter elects to terminate this Agreement as provided in
this Section, the Company shall be notified promptly by the Underwriter, by
telephone or telecopy, confirmed by letter.
9. Representations and Indemnities to Survive Delivery. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Underwriter set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
the Underwriter or the Company, or any of its officers or directors or any
controlling person, and will survive delivery of and payment for the Bonds.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriter, will be mailed, delivered, or telecopied and confirmed to
you at ,
, , ,
attention of
, or, if sent to the Company, will be mailed, delivered,
or telecopied and confirmed to it at 422 South Church Street, Charlotte, N.C.
28242-0001, attention of Richard J. Osborne.
11. Successors. This Agreement shall inure to the benefit of and be
binding upon the Underwriter and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the parties hereto
and their respective successors and the controlling persons and the officers and
directors referred to in Section 7, and their respective successors, heirs and
legal representatives any legal or equitable right, remedy or claim under or in
8
<PAGE> 9
respect of this Agreement or any provision herein contained; this Agreement and
all conditions and provisions hereof being intended to be and being for the sole
and exclusive benefit of the parties hereto and their respective successors and
said controlling persons, officers and directors and their respective
successors, heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Bonds from the Underwriter shall be
deemed to be a successor by reason merely of such purchase.
12. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement between the Company and the Underwriter in accordance
with its terms.
Very truly yours,
DUKE POWER COMPANY
By:
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
By:
9
<PAGE> 1
(Proof of April 17, 1996)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
DUKE POWER COMPANY
TO
CHEMICAL BANK,
TRUSTEE
------------------
EIGHTY - SUPPLEMENTAL INDENTURE
DATED AS OF , 199
------------------
CREATING AN ISSUE OF FIRST AND REFUNDING
MORTGAGE BONDS, % SERIES DUE
------------------
SUPPLEMENTAL TO
FIRST AND REFUNDING MORTGAGE
DATED AS OF DECEMBER 1, 1927
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
SUPPLEMENTAL INDENTURE, bearing date as of the day
of , , made and entered into by and between DUKE POWER
COMPANY, a corporation duly organized and existing under the laws of the State
of North Carolina, hereinafter called the "Company", party of the first part,
and CHEMICAL BANK (successor to Morgan Guaranty Trust Company of New York as
Trustee), a corporation duly organized and existing under the laws of the State
of New York, having its principal place of business in the Borough of Manhattan,
City and State of New York, hereinafter called the "Trustee", as Trustee, party
of the second part.
WHEREAS Duke Power Company, a New Jersey corporation, hereinafter called
the "New Jersey Company", duly executed and delivered its First and Refunding
Mortgage, dated as of December 1, 1927, to Guaranty Trust Company of New York,
as Trustee, to secure its First and Refunding Mortgage Gold Bonds, to be issued
from time to time in series as provided in said Mortgage, and has from time to
time duly executed and delivered supplemental indentures, including supplemental
indentures dated as of September 1, 1947 and February 1, 1949, to Guaranty Trust
Company of New York (the corporate name of which has been changed to Morgan
Guaranty Trust Company of New York), as Trustee, and a supplemental indenture
dated as of February 1, 1960 to Morgan Guaranty Trust Company of New York, as
Trustee, supplementing and modifying said Mortgage (said Mortgage, as so
supplemented and modified, being hereinafter referred to as the "original
indenture"); and
WHEREAS bonds of a series known as the "First and Refunding Mortgage Bonds,
2.65% Series Due 1977" (herein called "bonds of the 2.65% Series"), bonds of a
series known as the "First and Refunding Mortgage Bonds, 2 7/8% Series Due 1979"
(herein called "bonds of the 1979 Series"), bonds of a series known as the
"First and Refunding Mortgage Bonds, 5 3/8% Series Due 1997" (herein called
"bonds of the 1997 Series"), bonds of a series known as the "First and Refunding
Mortgage Bonds, 6 3/8% Series Due 1998" (herein called "bonds of the 1998
Series"), bonds of a series known as the "First and Refunding Mortgage Bonds,
Annual Tender Pollution Control Series 1987 A" (herein called "bonds of the 1987
Pollution Control Series A"), bonds of a series known as the "First and
Refunding Mortgage Bonds, Annual Tender Pollution Control Series 1987 B" (herein
called "bonds of the 1987 Pollution Control Series B"), bonds of a series known
as the "First and Refunding Mortgage Bonds, Annual Tender Pollution Control
Series 1987 C" (herein called "bonds of the 1987 Pollution Control Series C"),
bonds of a series known as the "First and Refunding Mortgage Bonds, Pollution
Control Facilities Revenue Refunding Series Due 2014" (herein called "bonds of
the 1990 Pollution Control Series"), bonds of a series known as the "First and
<PAGE> 3
2
Refunding Mortgage Bonds, 8 3/4% Series Due 2021" (herein called "bonds of the
2021 Series"), bonds of a series known as the "First and Refunding Mortgage
Bonds, City of Greensboro Series Due 2027" (herein called "bonds of the 2027
City of Greensboro Series"), bonds of a series known as the "First and Refunding
Mortgage Bonds, Medium-Term Notes Series" (herein called "bonds of the
Medium-Term Notes Series"), bonds of a series known as the "First and Refunding
Mortgage Bonds, 8 3/8% Series B Due 2021" (herein called "bonds of the 2021
Series B"), bonds of a series known as the "First and Refunding Mortgage Bonds,
8% Series Due 2004" (herein called "bonds of the 2004 Series"), bonds of a
series known as the "First and Refunding Mortgage Bonds, 8 5/8% Series Due 2022"
(herein called "bonds of the 2022 Series"), bonds of a series known as the
"First and Refunding Mortgage Bonds, 7% Series Due 2000" (herein called "bonds
of the 2000 Series"), bonds of a series known as the "First and Refunding
Mortgage Bonds, 7% Series B Due 2000" (herein called "bonds of the 2000 Series
B"), bonds of a series known as the "First and Refunding Mortgage Bonds, 7%
Series Due 2005" (herein called "bonds of the 2005 Series"), bonds of a series
known as the "First and Refunding Mortgage Bonds, 6 5/8% Series B Due 2003"
(herein called "bonds of the 2003 Series B"), bonds of a series known as the
"First and Refunding Mortgage Bonds, 7 3/8% Series Due 2023" (herein called
"bonds of the 2023 Series"), bonds of a series known as the "First and Refunding
Mortgage Bonds, 6 3/8% Series Due 2008" (herein called "bonds of the 2008
Series"), bonds of a series known as the "First and Refunding Mortgage Bonds,
5 7/8% Series C Due 2003" (herein called "bonds of the 2003 Series C"), bonds of
a series known as the "First and Refunding Mortgage Bonds, Pollution Control
Facilities Revenue Refunding Series Due 2014" (herein called "bonds of the 1993
Pollution Control Series"), bonds of a series known as the "First and Refunding
Mortgage Bonds, 6 1/4% Series B 2004" (herein called "bonds of the 2004 Series
B"), bonds of a series known as the "First and Refunding Mortgage Bonds, 5 7/8%
Series Due 2001" (herein called "bonds of the 2001 Series"), bonds of a series
known as the "First and Refunding Mortgage Bonds, 7% Series Due 2033" (herein
called "bonds of the 2033 Series"), bonds of a series known as the "First and
Refunding Mortgage Bonds, 6 7/8% Series B Due 2023" (herein called "bonds of the
2023 Series B"), bonds of a series known as the "First and Refunding Mortgage
Bonds, 6 3/4% Series Due 2025" (herein called "bonds of the 2025 Series"), bonds
of a series known as the "First and Refunding Mortgage Bonds, 7 7/8% Series Due
2024" (herein called "bonds of the 2024 Series"), bonds of a series known as the
"First and Refunding Mortgage Bonds, 8% Series B Due 1999" (herein called "bonds
of the 1999 Series B") and bonds of a series known as the "First and Refunding
Mortgage Bonds, 7 1/2% Series B Due 2025" (herein called "bonds of the 2025
Series B") have heretofore been issued and (except for bonds of the
<PAGE> 4
3
2.65% Series, bonds of the 1979 Series and bonds of the 1998 Series which have
been retired in their entirety) are the only bonds now outstanding under the
original indenture as heretofore supplemented; and
WHEREAS the Company has duly executed and delivered a supplemental
indenture, dated as of June 15, 1964, to Morgan Guaranty Trust Company of New
York, as Trustee, for the purpose of evidencing the succession by merger of the
Company to the New Jersey Company and the assumption by the Company of the
covenants and conditions of the New Jersey Company in the original indenture and
to enable the Company to have and exercise the powers and rights of the New
Jersey Company under the original indenture in accordance with the terms thereof
and whereby the Company assumed and agreed to pay duly and punctually the
principal of and interest on the bonds issued under the original indenture in
accordance with the provisions of said bonds and the coupons thereto
appertaining and the original indenture, and agreed to perform and fulfill all
the terms, covenants and conditions of the original indenture binding upon the
New Jersey Company; and
WHEREAS Morgan Guaranty Trust Company of New York resigned as Trustee under
the original indenture as heretofore supplemented and Chemical Bank was
appointed successor Trustee, said resignation and appointment having taken
effect on August 30, 1994 pursuant to an Instrument of Resignation, Appointment
and Acceptance dated as of August 30, 1994 among the Company, Morgan Guaranty
Trust Company of New York, as Trustee, and Chemical Bank, as successor Trustee;
and
WHEREAS the Company desires to create under the original indenture, as
heretofore supplemented and as to be supplemented by this supplemental
indenture, a new series of bonds, to be known as its "First and Refunding
Mortgage Bonds, % Series Due ", and to determine the terms and
provisions and the form of the bonds of such series; and
WHEREAS for the purposes hereinabove recited, and pursuant to due corporate
action, the Company has duly determined to execute and deliver to the Trustee a
supplemental indenture in the form hereof supplementing the original indenture
(the original indenture, as supplemented by the aforesaid supplemental indenture
dated as of June 15, 1964, by supplemental indentures dated as of April 1, 1967,
February 1, 1968, February 15, 1987, October 1, 1987, March 1, 1990, May 15,
1990, March 1, 1991, July 1, 1991, December 1, 1991, March 1, 1992, June 1,
1992, July 1, 1992, September 1, 1992, February 1, 1993, March 1, 1993, April 1,
1993, May 1, 1993, June 1, 1993, July 1, 1993, August 1, 1993, August 20, 1993,
May 1, 1994, November 1, 1994, August 1, 1995 and as hereby supplemented, being
sometimes hereinafter referred to as the "Indenture"); and
<PAGE> 5
4
WHEREAS all conditions and requirements necessary to make this supplemental
indenture a valid, legal and binding instrument in accordance with its terms
have been done and performed, and the execution and delivery hereof have been in
all respects duly authorized:
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in consideration of the premises and of the sum of one dollar duly
paid by the Company to the Trustee at or before the execution and delivery of
these presents, the receipt whereof is hereby acknowledged, the Company hereby
covenants and agrees with the Trustee and its successors in the trust under the
Indenture as follows:
PART ONE.
BONDS OF THE % SERIES DUE .
SECTION 1. The Company hereby creates a new series of bonds to be issued
under and secured by the Indenture and known as its First and Refunding Mortgage
Bonds, % Series Due (herein called "bonds of the Series"), and
the Company hereby establishes, determines and fixes the terms and provisions of
the bonds of the Series as hereinafter in this Part One set forth.
Each bond of the Series shall be dated the date of its authentication
(except that if any such bond shall be authenticated on any interest payment
date, it shall be dated the following day) and interest shall be payable on the
principal represented thereby commencing , , from the
or , as the case may be, next preceding the date
thereof to which interest has been paid, unless such date of authentication is
prior to , , in which case interest shall be payable from
, ; provided, however, that interest shall be payable on
each bond of the Series authenticated after the record date (as defined in
the next succeeding paragraph of this Section 1) with respect to any interest
payment date and prior to such interest payment date, only from such interest
payment date.
Interest on any bond of the Series shall be paid to the person who,
according to the bond register of the Company, is the registered holder of such
bond of the Series at the close of business on the applicable record date,
and such interest payments shall be made by check mailed to such registered
holder at his last address shown on such bond register; provided, however, that,
if the Company shall default in the payment of the interest due on any interest
payment date on any bond of the Series, such defaulted interest shall be
paid to the registered holder of such bond (or any bond or bonds of the
Series issued upon transfer, exchange or substitution thereof) on the date of
subsequent payment of such defaulted interest or, at the election of the
<PAGE> 6
5
Company, to the person in whose name such bond (or any bond or bonds of the
Series issued upon transfer, exchange or substitution thereof) is
registered on a subsequent record date established by notice given by mail by or
on behalf of the Company to the holders of all bonds of the Series not less
than ten (10) days preceding such subsequent record date. The term "record date"
as used in this Section 1 shall mean, with respect to any semi-annual interest
payment date, the close of business on the or ,
as the case may be, next preceding such interest payment date or, in the case of
a payment of defaulted interest, the close of business on any subsequent record
date established as provided above.
SECTION 2. All bonds of the Series shall mature as to principal on
, , and shall bear interest at the rate of % per annum,
payable semi-annually on the day of and in
each year.
SECTION 3. The bonds of the Series shall be fully registered bonds,
without coupons, in denominations of one thousand dollars ($1,000) and any
integral multiple of one thousand dollars ($1,000), all such bonds to be
numbered, and shall be transferable and exchangeable as provided in the form of
bond set forth in this supplemental indenture. The provisions of sec. 1.19 and
any other provision in the Indenture in respect of coupon bonds or reservation
of coupon bond numbers shall be inapplicable to the bonds of the Series.
SECTION 4. The bonds of the Series are not subject to redemption
(otherwise than through the operation of the Replacement Fund provided in Part
Two of this supplemental indenture or through the application of moneys paid to
the Trustee pursuant to the provisions of sec. 5.05 of the Indenture) prior to
, . On and after , , the bonds of the
Series are subject to redemption (otherwise than through the operation of
the Replacement Fund provided in Part Two of this supplemental indenture or
through the application of moneys paid to the Trustee pursuant to the provisions
of sec. 5.05 of the Indenture) prior to maturity, at the option of the Company,
as a whole at any time or in part from time to time, in principal amounts equal
to $1,000 or any multiple thereof, upon prior notice as hereinafter provided, at
the redemption prices specified in the third paragraph of the reverse side of
the form of bond set forth in this supplemental indenture, together with
interest accrued thereon to the date fixed for redemption thereof.
The bonds of the Series are also subject to redemption through the
operation of the Replacement Fund provided in Part Two of this supplemental
indenture or through the application of moneys paid to the Trustee pursuant to
the provisions of sec. 5.05 of the Indenture, at any time or from time to time
prior to maturity, upon prior notice as hereinafter provided, at the redemption
prices
<PAGE> 7
6
specified in the fourth paragraph of the reverse side of the form of bond set
forth in this supplemental indenture, together with interest accrued thereon to
the date fixed for redemption thereof.
All such redemption of bonds of the Series shall be effected as
provided in Article 3 of the Indenture except that, in case a part only of the
bonds of the Series is to be paid and redeemed, the particular bonds or
part thereof shall be selected by the Trustee in such manner as the Trustee in
its uncontrolled discretion shall determine to be fair and in any case where
several bonds are registered in the same name, the Trustee may treat the
aggregate principal amount so registered as if it were represented by one bond
and except that when bonds are redeemed in part only the notice given to any
particular holder need state only the principal amount of the bonds of that
holder which are to be redeemed and except that notice to the holders of bonds
to be redeemed shall be given by mailing to such holders a notice of such
redemption, first class mail postage prepaid, not later than the thirtieth day,
and not earlier than the sixtieth day, before the date fixed for redemption, at
their last addresses as they shall appear upon the bond register of the Company.
Any notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the holder receives such
notice; and failure duly to give such notice by mail, or any defect in such
notice, to the holder of any bond designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any
other bond. No publication of notice of such redemption shall be required.
SECTION 5. The aggregate principal amount of the bonds of the Series
shall be unlimited.
SECTION 6. The place or places of payment (as to principal and premium, if
any, and interest), redemption, transfer, exchange and registration of the bonds
of the Series shall be the office or offices or the agency or agencies of
the Company in the Borough of Manhattan, The City of New York, designated from
time to time by the Board of Directors of the Company.
SECTION 7. The form of the bonds of the Series and the certificate of
the Trustee to be endorsed on the bonds, respectively, shall be substantially as
follows:
<PAGE> 8
7
[FORM OF BOND OF THE SERIES]
[FACE SIDE OF BOND]
DUKE POWER COMPANY
FIRST AND REFUNDING MORTGAGE BOND,
% Series Due
No. $
DUKE POWER COMPANY, a North Carolina corporation (hereinafter called the
"Company"), for value received, hereby promises to pay to or
registered assigns, the principal sum of Dollars on
, , in any coin or currency of the United States of America
which at the time of payment shall be legal tender for the payment of public and
private debts, at the office or agency of the Company in the Borough of
Manhattan, The City of New York, and to pay interest thereon at said office or
agency from the interest payment date next preceding the date hereof to which
interest on outstanding bonds of this series has been paid (unless the date
hereof is prior to , in which case from , ,
and unless the date hereof is a date subsequent to
, or a date subsequent to , in which case
from the next succeeding or , as the case may
be), at the rate of per cent per annum, in like coin or currency,
semi-annually on and in each year until the
principal hereof shall become due and payable. Such interest payments shall be
made by check mailed to the person in whose name this bond is registered at the
close of business on the day of or preceding each
semi-annual interest payment date, as the case may be (subject to certain
exceptions provided in the Indenture hereinafter mentioned), at his last address
as it shall appear upon the bond register of the Company.
The provisions of this bond are continued on the reverse hereof and such
continued provisions shall for all purposes have the same effect as though fully
set forth in this place.
This bond shall not become or be valid or obligatory for any purpose until
the Trustee shall have signed the form of certificate endorsed hereon.
<PAGE> 9
8
IN WITNESS WHEREOF, the Company has caused this instrument to be signed in
its name by its President or one of its Vice Presidents, manually or by
facsimile signature, and its corporate seal to be hereto affixed, or a facsimile
thereof to be hereon engraved, lithographed or printed, and to be attested by
the manual or facsimile signature of its Secretary or one of its Assistant
Secretaries.
Dated:
DUKE POWER COMPANY
By: .................................
President
Attest:
.....................................
Secretary
[FORM OF TRUSTEE'S CERTIFICATE FOR
BOND OF THE SERIES]
This bond is one of the bonds, of the series designated therein, described
in the within-mentioned Indenture.
CHEMICAL BANK, Trustee
By: .................................
Authorized Officer
<PAGE> 10
9
[REVERSE SIDE OF BOND]
This bond is one of the bonds of a series, designated specially as First
and Refunding Mortgage Bonds, % Series Due , of an authorized issue of
bonds of the Company, without limit as to aggregate principal amount, designated
generally as First and Refunding Mortgage Bonds, all issued and to be issued
under and equally and ratably secured by an indenture dated as of December 1,
1927, duly executed by Duke Power Company, a New Jersey corporation (hereinafter
called the "New Jersey Company"), to Guaranty Trust Company of New York (now
Morgan Guaranty Trust Company of New York), as Trustee (Chemical Bank, successor
Trustee), as supplemented and modified by indentures supplemental thereto,
including supplemental indentures dated as of September 1, 1947, February 1,
1949, February 1, 1960, June 15, 1964 (under which the Company succeeded to and
was substituted for the New Jersey Company), April 1, 1967, February 1, 1968,
February 15, 1987, October 1, 1987, March 1, 1990, May 15, 1990, March 1, 1991,
July 1, 1991, December 1, 1991, March 1, 1992, June 1, 1992, July 1, 1992,
September 1, 1992, February 1, 1993, March 1, 1993, April 1, 1993, May 1, 1993,
June 1, 1993, July 1, 1993, August 1, 1993, August 20, 1993, May 1, 1994,
November 1, 1994, August 1, 1995 and , , the latter providing
for said series (said indenture as so supplemented and modified being
hereinafter referred to as the "Indenture"), to which Indenture reference is
made for a description of the property mortgaged, the nature and extent of the
security, the rights of the holders of the bonds in respect thereof, the terms
and conditions upon which the bonds are secured and the restrictions subject to
which additional bonds secured thereby may be issued. To the extent permitted
by, and as provided in, the Indenture, modifications or alterations of the
Indenture, or of any indenture supplemental thereto, and of the rights and
obligations of the Company and of the holders of the bonds, may be made with the
consent of the Company by the affirmative vote, or with the written consent, of
the holders of not less than 66 2/3% in principal amount of the bonds then
outstanding, and by the affirmative vote, or with the written consent, of the
holders of not less than 66 2/3% in principal amount of the bonds of any series
then outstanding and affected by such modification or alteration, in case one or
more but less than all of the series of bonds then outstanding under the
Indenture are so affected, evidenced, in each case, as provided in the
Indenture; provided that any supplemental indenture may be modified in
accordance with the provisions contained therein for its modification; and
provided, further, that no such modification or alteration shall be made which
will affect the terms of payment of the principal of, or interest or premium on,
this bond, or the right of any bondholder to institute suit for the enforcement
of any such payment on or after the respective due dates expressed in this bond,
or reduce
<PAGE> 11
10
the percentage required for the taking of any such action. Any such affirmative
vote of, or written consent given by, any holder of this bond is binding upon
all subsequent holders hereof as provided in the Indenture.
In case an event of default as defined in the Indenture shall occur, the
principal of all the bonds outstanding thereunder may become or be declared due
and payable, at the time, in the manner and with the effect provided in the
Indenture.
The bonds of this series are not subject to redemption (otherwise than for
the Replacement Fund hereinafter mentioned or upon application of certain moneys
included in the trust estate) prior to , . On and after
, , the bonds of this series are subject to redemption (otherwise
than for the Replacement Fund hereinafter mentioned or upon application of
certain moneys included in the trust estate) prior to maturity, at the option of
the Company, as a whole at any time or in part from time to time, at the
following redemption prices (expressed as percentages of their principal
amounts), in each case together with accrued interest to the date fixed for
redemption:
If redeemed during the twelve-month period beginning :
<TABLE>
<CAPTION>
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
- ---- ---------- ---- ----------
<S> <C> <C> <C>
% %
</TABLE>
<PAGE> 12
11
The bonds of this series are also subject to redemption for the Replacement
Fund for bonds of this series provided for in the supplemental indenture dated
as of , , providing for this series, or upon application of
certain moneys included in the trust estate, at any time or from time to time
prior to maturity, at the following redemption prices (expressed as percentages
of their principal amounts), in each case together with accrued interest to the
date fixed for redemption:
If redeemed during the twelve-month period beginning :
<TABLE>
<CAPTION>
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
- ---- ---------- ---- ----------
<S> <C> <C> <C>
%
%
</TABLE>
Redemption is in every case to be effected at the office or agency of the
Company in the Borough of Manhattan, The City of New York, upon at least thirty
days' prior notice, given by mail as more fully provided in the Indenture.
If this bond or any portion hereof ($1,000 or a multiple thereof) is called
for redemption and payment is duly provided, this bond or such portion thereof
shall cease to bear interest from and after the date fixed for such redemption.
This bond is transferable, as provided in the Indenture, by the registered
owner hereof in person or by duly authorized attorney, at the office or agency
of the Company in the Borough of Manhattan, The City of New York, upon surrender
and cancellation of this bond, and thereupon a new bond of the same series and
of like aggregate principal amount will be issued to the transferee in exchange
herefor as provided in the Indenture; or the registered owner of this bond, at
his option, may surrender the same for cancellation at said office or agency of
the Company and receive in exchange herefor the same aggregate
<PAGE> 13
12
principal amount of bonds of the same series of authorized denominations; all
subject to the terms of the Indenture but without payment of any charges other
than a sum sufficient to reimburse the Company for any stamp taxes or other
governmental charges incident thereto.
This bond is a corporate obligation only and no recourse whatsoever, either
directly or through the Company or any trustee, receiver, assignee or any other
person, shall be had for the payment of the principal of or premium, if any, or
interest on this bond, or for the enforcement of any claim based hereon, or
otherwise in respect hereof or of the Indenture, against any promoter,
subscriber to the capital stock, incorporator, or any past, present or future
stockholder, officer or director of the Company as such, or of any successor or
predecessor corporation, whether by virtue of any constitutional provision,
statute or rule of law, or by the enforcement of any assessment, penalty,
subscription or otherwise, any and all such liability of promoters, subscribers,
incorporators, stockholders, officers and directors being waived and released by
each successive holder hereof by the acceptance of this bond, and as a part of
the consideration for the issue hereof, and being likewise waived and released
by the terms of the Indenture.
[END OF BOND FORM]
PART TWO.
REPLACEMENT FUND.
SECTION 1. So long as any of the bonds of the Series are outstanding,
the Company will continue to maintain the Replacement Fund set forth in, and in
accordance with the applicable terms and conditions now contained in, Part Two
of the supplemental indenture dated as of February 1, 1949, and the covenants on
the part of the Company contained in such Part Two shall continue and remain in
full force and effect, whether or not bonds of the 1979 Series are outstanding
and to the same extent as though the words "or any bonds of the Series"
were inserted after the word "Series" appearing in the second line of Section 1
and the second line of Section 4 of said Part Two of said supplemental indenture
dated as of February 1, 1949.
SECTION 2. If at any time (a) bonds of the Series are outstanding and
(b) no bonds of the 1997 Series, of the 2021 Series, of the Medium-Term Notes
Series, of the 2021 Series B, of the 2004 Series, of the 2022 Series, of the
2000 Series, of the 2000 Series B, of the 2005 Series, of the 2003 Series B, of
the 2023 Series, of the 2008 Series, of the 2003 Series C, of the 2004 Series B,
of the 2001 Series, of the 2033 Series, of the 2023 Series B, of the 2025
Series, of the 2024 Series, of the 1999 Series B or of the 2025 Series B are
outstanding and (c) cash which shall have been deposited with the Trustee
<PAGE> 14
13
pursuant to such Replacement Fund shall not within five years from the date of
deposit thereof have been paid out, or used or set aside by the Trustee for the
payment, purchase or redemption of bonds, pursuant to such Replacement Fund,
such cash shall, if in excess of fifty thousand dollars ($50,000), be applied to
the redemption of bonds of the Series in an aggregate principal amount
sufficient to exhaust as nearly as possible the full amount of such cash.
Anything in Section 5 of Part Two of the aforesaid supplemental indenture dated
as of February 1, 1949, in Section 3 of Part Two of the supplemental indentures
dated as of April 1, 1967, March 1, 1991, December 1, 1991, June 1, 1992, July
1, 1992, September 1, 1992, February 1, 1993, May 1, 1993, June 1, 1993, July 1,
1993, August 1, 1993, August 20, 1993, May 1, 1994, November 1, 1994 and August
1, 1995, in Section 3 of Part Three of the supplemental indenture dated as of
March 1, 1990, in Section 4 of Part Three of the supplemental indenture dated as
of March 1, 1992 and in Section 5 of Part Four of the supplemental indenture
dated as of March 1, 1993 to the contrary notwithstanding, no cash shall be paid
over to the Company thereunder if at the time any bonds of the Series are
then outstanding, and such cash shall in such event be applied as in this Part
Two set forth.
SECTION 3. Whenever all of the bonds of the Series, the 1997 Series,
the 2021 Series, the Medium-Term Notes Series, the 2021 Series B, the 2004
Series, the 2022 Series, the 2000 Series, the 2000 Series B, the 2005 Series,
the 2003 Series B, the 2023 Series, the 2008 Series, the 2003 Series C, the 2004
Series B, the 2001 Series, the 2033 Series, the 2023 Series B, the 2025 Series,
the 2024 Series, the 1999 Series B and the 2025 Series B shall have been paid,
purchased or redeemed, the Trustee shall, upon application of the Company, pay
to or upon the order of the Company all cash theretofore deposited with the
Trustee pursuant to the provisions of the Replacement Fund and not previously
disposed of pursuant to the provisions of the Replacement Fund, and shall
deliver to the Company any bonds which shall theretofore have been deposited
with the Trustee pursuant to the provisions of the Replacement Fund or paid,
purchased or redeemed pursuant to the provisions of the Replacement Fund.
PART THREE.
ADDITIONAL COVENANTS OF THE COMPANY.
SECTION 1. Whether or not the covenants on the part of the Company
contained in Part Three of the supplemental indenture dated as of February 1,
1949 are modified with the consent of the holders of bonds of the 1997 Series,
the 1987 Pollution Control Series A, the 1987 Pollution Control Series B, the
1987 Pollution Control Series C, the 1990 Pollution Control Series, the 2021
<PAGE> 15
14
Series, the 2027 City of Greensboro Series, the Medium-Term Notes Series, the
2021 Series B, the 2004 Series, the 2022 Series, the 2000 Series, the 2000
Series B, the 2005 Series, the 2003 Series B, the 2023 Series, the 2008 Series,
the 2003 Series C, the 1993 Pollution Control Series, the 2004 Series B, the
2001 Series, the 2033 Series, the 2023 Series B, the 2025 Series, the 2024
Series, the 1999 Series B or the 2025 Series B and whether or not the bonds of
the 1997 Series, the 1987 Pollution Control Series A, the 1987 Pollution Control
Series B, the 1987 Pollution Control Series C, the 1990 Pollution Control
Series, the 2021 Series, the 2027 City of Greensboro Series, the Medium-Term
Notes Series, the 2021 Series B, the 2004 Series, the 2022 Series, the 2000
Series, the 2000 Series B, the 2005 Series, the 2003 Series B, the 2023 Series,
the 2008 Series, the 2003 Series C, the 1993 Pollution Control Series, the 2004
Series B, the 2001 Series, the 2033 Series, the 2023 Series B, the 2025 Series,
the 2024 Series, the 1999 Series B or the 2025 Series B are outstanding, such
covenants on the part of the Company contained in said Part Three shall continue
and remain in full force and effect so long as any of the bonds of the
Series are outstanding and to the same extent as though the words "or so long as
any bonds of the Series are outstanding" were inserted after the words "so
long as any of the bonds of the 1979 Series or any bonds of the 2.65% Series are
outstanding" wherever such words appear in said Part Three of the supplemental
indenture dated as of February 1, 1949.
SECTION 2. Whether or not the second sentence of paragraph (a) of
sec. 2.08 of the original indenture (making certain provisions for the
definition of the term "net amount" applicable while bonds of the 2.65% Series
were outstanding and which was originally set forth in Section 4 of Article One
of the supplemental indenture dated as of September 1, 1947 and which is
corrected and clarified by Section 2 of Part Four of the supplemental indenture
dated as of February 1, 1968) is modified with the consent of the holders of
bonds of the 1997 Series, the 1987 Pollution Control Series A, the 1987
Pollution Control Series B, the 1987 Pollution Control Series C, the 1990
Pollution Control Series, the 2021 Series, the 2027 City of Greensboro Series,
the Medium-Term Notes Series, the 2021 Series B, the 2004 Series, the 2022
Series, the 2000 Series, the 2000 Series B, the 2005 Series, the 2003 Series B,
the 2023 Series, the 2008 Series, the 2003 Series C, the 1993 Pollution Control
Series, the 2004 Series B, the 2001 Series, the 2033 Series, the 2023 Series B,
the 2025 Series, the 2024 Series, the 1999 Series B or the 2025 Series B and
whether or not bonds of the 1997 Series, the 1987 Pollution Control Series A,
the 1987 Pollution Control Series B, the 1987 Pollution Control Series C, the
1990 Pollution Control Series, the 2021 Series, the 2027 City of Greensboro
Series, the Medium-Term Notes Series, the 2021 Series B, the 2004 Series, the
2022 Series, the 2000 Series, the 2000 Series B, the 2005 Series, the 2003
<PAGE> 16
15
Series B, the 2023 Series, the 2008 Series, the 2003 Series C, the 1993
Pollution Control Series, the 2004 Series B, the 2001 Series, the 2033 Series,
the 2023 Series B, the 2025 Series, the 2024 Series, the 1999 Series B or the
2025 Series B are outstanding, said sentence shall continue and remain in full
force and effect so long as any bonds of the Series are outstanding, and
with the same force and effect as though said sentence had stated that such
provisions were to be applicable so long as any of the bonds of the Series
are outstanding.
PART FOUR.
MISCELLANEOUS.
SECTION 1. (a) For the purposes of sec. 2.10 of the Indenture and for the
purposes of any modification of the provisions of the Replacement Fund referred
to in Part Two of this supplemental indenture, the covenants and provisions on
the part of the Company which are set forth or incorporated in Part Two of this
supplemental indenture shall be for the benefit only of the holders of the bonds
of the Series. Such covenants and provisions shall remain in force and be
applicable only so long as any bonds of the Series shall be outstanding,
and, subject to the provisions of paragraph (2) of subdivision (c) of sec. 10.01
of the Indenture, any such covenants and provisions may be modified with the
consent, in writing or by vote at a bondholders' meeting, of the holders of
sixty-six and two-thirds per cent (66 2/3%) of the principal amount of the bonds
of the Series at the time outstanding and without the consent of the
holders of any other bonds then outstanding under the Indenture; provided that
no such consent shall be effective to waive any past default under such
covenants and provisions, and its consequences, unless the consent of the
holders of at least a majority in principal amount of all bonds then outstanding
under the Indenture is obtained. Such covenants shall be deemed to be additional
covenants and none of them shall affect or derogate from, or relieve the Company
from, its obligation to comply with any of the other covenants, conditions,
requirements or provisions of the Indenture or any other supplemental indenture.
(b) For the purposes of sec. 2.10 of the Indenture and for the purposes of
any modification of the provisions of Part Three of this supplemental indenture,
the covenants and provisions on the part of the Company which are set forth or
incorporated in said Part Three shall be for the benefit only of the holders of
the bonds of the Series. Such covenants and provisions shall remain in
force and be applicable only so long as any bonds of the Series shall be
outstanding, and, subject to the provisions of paragraph (2) of subdivision (c)
of sec. 10.01 of the Indenture, any such covenants and provisions may be
<PAGE> 17
16
modified with the consent, in writing or by vote at a bondholders' meeting, of
the holders of sixty-six and two-thirds per cent (66 2/3%) of the principal
amount of the bonds of the Series at the time outstanding and without the
consent of the holders of any other bonds then outstanding under the Indenture;
provided that no such consent shall be effective to waive any past default under
such covenants and provisions, and its consequences, unless the consent of the
holders of at least a majority in principal amount of all bonds then outstanding
under the Indenture is obtained. Such covenants shall be deemed to be additional
covenants and none of them shall affect or derogate from, or relieve the Company
from, its obligation to comply with any of the other covenants, conditions,
requirements or provisions of the Indenture or any other supplemental indenture.
SECTION 2. All terms contained in this supplemental indenture shall,
except as specifically provided herein or except as the context may otherwise
require, have the meanings given to such terms in the Indenture.
SECTION 3. In case any one or more of the provisions contained in this
supplemental indenture should be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision contained in this supplemental indenture, and, to the extent,
but only to the extent, that such provision is invalid, illegal or
unenforceable, this supplemental indenture shall be construed as if such
provision had never been contained herein.
SECTION 4. The Trustee hereby accepts the trusts herein declared and
provided upon the terms and conditions in the Indenture set forth.
SECTION 5. This supplemental indenture may be executed in several
counterparts, each of which shall be an original, and all collectively but one
instrument.
<PAGE> 18
17
IN WITNESS WHEREOF, Duke Power Company, the party of the first part hereto,
has caused this supplemental indenture to be signed in its name by one of its
Vice Presidents and its corporate seal to be hereunto affixed, and the same to
be attested by one of its Assistant Secretaries, and Chemical Bank, the party of
the second part hereto, in token of its acceptance of the trust hereby created,
has caused this supplemental indenture to be signed in its name by one of its
Vice Presidents and its corporate seal to be hereunto affixed, and the same to
be attested by one of its Senior Trust Officers, all as of the day and year
first above written.
DUKE POWER COMPANY
By:.............................
Senior Vice President
ATTEST:
.....................................
Assistant Secretary
Signed, sealed, executed,
acknowledged and delivered by DUKE
POWER COMPANY, in the presence of:
.....................................
.....................................
CHEMICAL BANK
By:.............................
Vice President
ATTEST:
.....................................
Senior Trust Officer
Signed, sealed, executed,
acknowledged and delivered by
CHEMICAL BANK, in the presence of:
.....................................
.....................................
<PAGE> 19
18
<TABLE>
<S> <C>
STATE OF NEW YORK
COUNTY OF NEW YORK SS.:
</TABLE>
Personally appeared before me and made oath that she saw
, a Vice President, and , a Senior Trust
Officer, respectively, of CHEMICAL BANK, sign, attest and affix hereto the
corporate seal of said Chemical Bank, and, as the act and deed of said
corporation, deliver the within written and foregoing deed, and that she, with
, witnessed the execution thereof.
.....................................
Sworn and subscribed before me
this day of , .
.....................................
Notary Public, State of New York
No.
Qualified in County
Certificate Filed in New York County
Commission Expires , .
<TABLE>
<S> <C>
STATE OF NEW YORK
COUNTY OF NEW YORK SS.:
</TABLE>
I, , a Notary Public in and for the State and
County aforesaid, certify that personally came before me this
day and acknowledged that he is a Senior Trust Officer of CHEMICAL BANK, a New
York corporation, and that, by authority duly given and as the act of the
corporation, the foregoing instrument was signed in its name by one of its Vice
Presidents, sealed with its corporate seal, and attested by himself as one of
its Senior Trust Officers.
Witness my hand and official seal, this day of , .
.....................................
Notary Public, State of New York
No.
Qualified in County
Certificate Filed in New York County
Commission Expires , .
<PAGE> 20
19
<TABLE>
<S> <C>
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG SS.:
</TABLE>
Personally appeared before me and made oath
that she saw , a Senior Vice President, and
, an Assistant Secretary, respectively, of DUKE POWER
COMPANY, sign, attest and affix hereto the corporate seal of said Duke Power
Company, and, as the act and deed of said corporation, deliver the within
written and foregoing deed, and that she, with ,
witnessed the execution thereof.
.....................................
Sworn and subscribed before me
this day of ,
.
.....................................
Notary Public
County, N.C.
My Commission expires ,
.
<TABLE>
<S> <C>
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG SS.:
</TABLE>
I, , a Notary Public in and for the State and
County aforesaid, certify that personally came before
me this day and acknowledged that he is an Assistant Secretary of DUKE POWER
COMPANY, a North Carolina corporation, and that, by authority duly given and as
the act of the corporation, the foregoing instrument was signed in its name by
one of its Senior Vice Presidents, sealed with its corporate seal, and attested
by himself as one of its Assistant Secretaries.
My commission expires , .
Witness my hand and official seal, this day of ,
.
.....................................
Notary Public
County, N.C.
<PAGE> 1
EXHIBIT 5
April 17, 1996
Duke Power Company
422 South Church Street
Charlotte, North Carolina 28242
Dear Sirs:
With reference to the filing by Duke Power Company (the
Company) of a Registration Statement on Form S-3 with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, relating to
the proposed issuance and sale of $700,000,000 principal amount of First and
Refunding Mortgage Bonds (the New Bonds) by the Company, I hereby advise you as
follows:
As General Counsel for the Company, I am familiar with the
Articles of Incorporation and the By-Laws of the Company, both as amended to
date, the form of supplemental indenture relating to the New Bonds (the
Supplemental Indenture) supplementing the First and Refunding Mortgage, dated
as of December 1, 1927, from the Company to Guaranty Trust Company of New York
(now Morgan Guaranty Trust Company of New York), as trustee (Chemical Bank,
Successor Trustee), as heretofore supplemented and amended (the First and
Refunding Mortgage), and have made such examination of corporate records and
proceedings and other documents and questions of law as I have considered
necessary for the purposes of this opinion.
Based upon the foregoing, I am of the opinion that:
(1) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of North Carolina;
(2) Upon (a) the Registration Statement under the
Securities Act of 1933, as amended, with respect to the New Bonds
becoming effective; (b) the First and Refunding Mortgage, as to be
supplemented by the Supplemental Indenture, having qualified under the
Trust Indenture Act of 1939, as amended; (c) the execution and
delivery of the Supplemental Indenture;
<PAGE> 2
(d) the execution, authentication and delivery of the New Bonds in
accordance with the resolutions to be adopted by the Management
Committee of the Board of Directors of the Company, and in accordance
with the provisions of the First and Refunding Mortgage as to be
supplemented by the Supplemental Indenture; and (e) the issuance and
sale of the New Bonds in accordance with the provisions of an
appropriate order of the North Carolina Utilities Commission and an
appropriate order of The Public Service Commission of South Carolina
relating thereto, the New Bonds will be valid, binding and legal
obligations of the Company in accordance with their terms, except as
limited by bankruptcy, insolvency or other laws affecting the
enforcement of mortgagees' and other creditors' rights.
Further, I am of the opinion, except as stated above, and
other than in connection with or in compliance with the provisions of the
securities or blue sky laws of any jurisdiction of the United States or
Canadian Province, that no consent of any governmental authority is necessary
for the issuance and sale by the Company of the New Bonds.
I hereby consent to the filing of this opinion with the
Securities and Exchange Commission as an Exhibit to the Registration Statement
in connection with the issuance of the New Bonds, and I also consent to the use
of my name and the reference made to me under the caption "Legal Opinions" in
the Prospectus constituting a part of the Registration Statement.
Very truly yours,
STEVE C. GRIFFITH, JR.
---------------------
STEVE C. GRIFFITH, JR.
2
<PAGE> 1
EXHIBIT 24(A)
DUKE POWER COMPANY
POWER OF ATTORNEY
a maximum of $700,000,000 principal amount
of First and Refunding Mortgage Bonds
(Securities)
The undersigned DUKE POWER COMPANY, a North Carolina corporation, and
certain of its officers and/or directors, do each hereby constitute and appoint
W. H. Grigg, Richard J. Osborne, Ellen T. Ruff, and each of them, to act as
attorneys-in-fact for and in the respective names, places and stead of the
undersigned, to execute, seal, sign, and file with the Securities and Exchange
Commission a Registration Statement of said Duke Power Company on Form S-3 and
any and all amendments thereto for the purpose of registering under the
Securities Act of 1933 the Securities, hereby granting to said
attorneys-in-fact, and each of them, full power and authority to do and perform
all and every act and thing whatsoever requisite, necessary, or proper to be
done in and about the premises, as fully to all intents and purposes as the
undersigned, or any of them, might or could do if personally present, hereby
ratifying and approving the acts of said attorneys-in-fact.
Executed the 27th day of February, 1996.
DUKE POWER COMPANY
By W. H. GRIGG
-------------------------------------
Chairman and Chief Executive Officer
(Corporate Seal)
ATTEST:
ROBERT T. LUCAS III
- -----------------------------------
Assistant Secretary
<PAGE> 2
<TABLE>
<S> <C>
W. H. GRIGG
- --------------------------------- Chairman and Chief Executive Officer
W. H. GRIGG (Principal Executive Officer and Director)
RICHARD J. OSBORNE
- --------------------------------- Senior Vice President and Chief Financial
RICHARD J. OSBORNE Officer (Principal Financial Officer)
JEFFREY L. BOYER
- --------------------------------- Controller (Principal Accounting Officer)
JEFFREY L. BOYER
G. ALEX BERNHARDT
- --------------------------------- (Director)
G. ALEX BERNHARDT
CRANDALL C. BOWLES
- --------------------------------- (Director)
CRANDALL C. BOWLES
ROBERT J. BROWN
- --------------------------------- (Director)
ROBERT J. BROWN
WILLIAM A. COLEY
- --------------------------------- (Director)
WILLIAM A. COLEY
STEVE C. GRIFFITH, JR.
- --------------------------------- (Director)
STEVE C. GRIFFITH, JR.
- --------------------------------- (Director)
PAUL H. HENSON
GEORGE DEAN JOHNSON, JR.
- --------------------------------- (Director)
GEORGE DEAN JOHNSON, JR.
</TABLE>
2
<PAGE> 3
<TABLE>
<S> <C>
- -------------------------------- (Director)
JAMES V. JOHNSON
W. W. JOHNSON
- -------------------------------- (Director)
W. W. JOHNSON
MAX LENNON
- -------------------------------- (Director)
MAX LENNON
JAMES G. MARTIN
- -------------------------------- (Director)
JAMES G. MARTIN
BUCK MICKEL
- -------------------------------- (Director)
BUCK MICKEL
RICHARD B. PRIORY
- -------------------------------- (Director)
RICHARD B. PRIORY
RUSSELL M. ROBINSON, II
- -------------------------------- (Director)
RUSSELL M. ROBINSON, II
</TABLE>
3
<PAGE> 1
EXHIBIT 24(B)
DUKE POWER COMPANY
CERTIFICATE
$700,000,000 PRINCIPAL AMOUNT
FIRST AND REFUNDING MORTGAGE BONDS,
(THE SECURITIES)
The undersigned officer of Duke Power Company, a North
Carolina corporation (the Company), does hereby certify that attached hereto is
a true and complete copy of an extract from the minutes of a meeting of the
Board of Directors of the Company containing a resolution adopted with respect
to the Securities, which resolution is presently in full force and effect.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
and affixed the corporate seal of the Company this 17th day of April, 1996.
ROBERT T. LUCAS III
------------------------------------
Assistant Secretary
[Corporate Seal]
<PAGE> 2
[EXTRACT FROM THE MINUTES OF THE MEETING OF THE
BOARD OF DIRECTORS OF DUKE POWER COMPANY
HELD ON FEBRUARY 27, 1996]
FURTHER RESOLVED, that each officer and director who may be
required to execute such Registration Statement or any amendments
thereto (whether on behalf of the Company or as an officer or director
thereof or by attesting the seal of the Company or otherwise) be and
hereby is authorized to execute a power of attorney appointing W. H.
Grigg, Richard J. Osborne and Ellen T. Ruff, and each of them, as true
and lawful attorneys and agents to execute in his or her name, place
and stead (in any such capacity) such Registration Statement and any
and all amendments thereto and all instruments necessary or advisable
in connection therewith, to attest the seal of the Company thereon and
to file the same with the Securities and Exchange Commission, each of
said attorneys and agents to have power to act with or without the
others and to have full power and authority to do and perform in the
name and on behalf of each of such officers and directors, or both, as
the case may be, every act whatsoever necessary or advisable to be
done in the premises as fully and to all intents and purposes as any
such officer or director might or could do in person.
* * *
<PAGE> 1
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------------------
DUKE POWER COMPANY
(Exact name of obligor as specified in its charter)
NORTH CAROLINA 56-0205520
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
422 SOUTH CHURCH ST.
CHARLOTTE, NORTH CAROLINA 28242
(Address of principal executive offices) (Zip Code)
-------------------------------------------
FIRST AND REFUNDING MORTGAGE BONDS
(Title of the indenture securities)
- -------------------------------------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551.
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985 and December 2, 1991 (see Exhibit 1 to Form T-1 filed in
connection with Registration Statement No. 33-50010, which is incorporated by
reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 33-84460, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement
No. 33-50010, which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chemical Bank, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 8th day of APRIL, 1996.
CHEMICAL BANK
By /s/ PATRICIA A. KELLY
-----------------------------
PATRICIA A. KELLY
Assistant Vice President
- 3 -
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1995, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ...................................... $ 6,390
Interest-bearing balances .............................. 2,544
Securities: ................................................
Held to maturity securities.................................. 3,807
Available for sale securities................................ 26,522
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold ..................................... 750
Securities purchased under agreements to resell ........ 259
Loans and lease financing receivables:
Loans and leases, net of unearned income........ $ 72,938
Less: Allowance for loan and lease losses ...... 1,917
Less: Allocated transfer risk reserve .......... 104
--------
Loans and leases, net of unearned income,
allowance, and reserve ................................. 70,917
Trading Assets .............................................. 27,963
Premises and fixed assets (including capitalized
leases)................................................. 1,355
Other real estate owned ..................................... 21
Investments in unconsolidated subsidiaries and
associated companies.................................... 171
Customer's liability to this bank on acceptances
outstanding ............................................ 1,166
Intangible assets ........................................... 433
Other assets ................................................ 4,822
--------
TOTAL ASSETS ................................................ $147,120
========
</TABLE>
- 4 -
<PAGE> 5
<TABLE>
<S> <C>
LIABILITIES
Deposits
In domestic offices ........................................ $ 47,524
Noninterest-bearing ............................. $ 17,041
Interest-bearing ................................ 30,483
--------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's .................................................. 37,690
Noninterest-bearing ............................. $ 147
Interest-bearing ................................ 37,543
--------
Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased .................................... 9,384
Securities sold under agreements to repurchase ............. 2,166
Demand notes issued to the U.S. Treasury ........................ 741
Trading liabilities ............................................. 21,847
Other Borrowed money:
With original maturity of one year or less ................. 9,669
With original maturity of more than one year ............... 146
Mortgage indebtedness and obligations under capitalized
leases ..................................................... 14
Bank's liability on acceptances executed and outstanding ........ 1,180
Subordinated notes and debentures ............................... 3,411
Other liabilities ............................................... 5,290
TOTAL LIABILITIES ............................................... 139,062
--------
EQUITY CAPITAL
Common stock .................................................... 620
Surplus ......................................................... 4,665
Undivided profits and capital reserves .......................... 3,055
Net unrealized holding gains (Losses)
on available-for-sale securities ................................ (290)
Cumulative foreign currency translation adjustments ............. 8
TOTAL EQUITY CAPITAL ............................................ 8,058
--------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL ................................... $147,120
========
</TABLE>
I, Joseph L. Sclafani, S.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
WILLIAM B. HARRISON )
- 5 -
