Exhibit 4.11
PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED
NEW SUB II, INC.
and
FIRST UNION NATIONAL BANK
(formerly FIRST UNION NATIONAL BANK OF NORTH CAROLINA),
as Trustee
THIRD SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 10, 2000
TO
INDENTURE
DATED AS OF JANUARY 1,1996
<PAGE>
THIRD SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"),
dated as of February 10, 2000, among PUBLIC SERVICE COMPANY OF NORTH CAROLINA,
INCORPORATED, a North Carolina corporation (the "Company"), NEW SUB II, INC., a
South Carolina corporation ("New Sub II"), and FIRST UNION NATIONAL BANK
(formerly FIRST UNION NATIONAL BANK OF NORTH CAROLINA), as trustee under the
Indenture referred to below (the "Trustee").
WITNESSETH:
WHEREAS, the Company and the Trustee have heretofore executed
an Indenture dated as of January 1, 1996, as supplemented by the First
Supplemental Indenture, dated as of January 1, 1996, as further supplemented by
the Second Supplemental Indenture, dated as of December 15, 1996 (as so
supplemented, the "Indenture"), to provide for the issuance from time to time of
the Company's unsecured debentures, notes or other evidences of indebtedness
("Securities"), the form and terms of which are to be established as set forth
in the Indenture;
WHEREAS, Section 8.1 of the Indenture provides, among other
things, that the Company and the Trustee may enter into indentures supplemental
to the Indenture without the consent of the Holders for, among other things, the
purpose of evidencing the succession of another Person to the Company and the
assumption by such successor of all of the covenants of the Company under the
Indenture and the Securities; and
WHEREAS, the Company, SCANA Corporation, a South Carolina
corporation, New Sub I, Inc., a South Carolina corporation, and New Sub II have
entered into an Agreement and Plan of Merger, dated as of February 16, 1999, as
amended and restated as of May 10, 1999 (the "Merger Agreement"), pursuant to
which, at the Effective Time of the Second Merger (as defined in the Merger
Agreement), the Company will be merged with and into New Sub II, with New Sub II
being the surviving corporation (the "Merger"); and
WHEREAS, upon consummation of the Second Merger, New Sub II
will assume certain obligations and liabilities of the Company, including all
obligations of the Company under the Securities and the Indenture, and the
Company will be released therefrom;
NOW, THEREFORE, for and in consideration of the premises and
the purchase of the Securities by the persons acquiring the same, it is mutually
covenanted and agreed, as follows:
SECTION 1. New Sub II hereby expressly assumes, as fully and
effectually as if it had been an original party to the Indenture, all of the
obligations of the Company under the Securities and the Indenture, including the
obligation to make due and punctual payment of the principal of, premium, if
any, and interest, if any, on all the Securities of each series according to
their tenor, any coupons appertaining thereto and the Indenture, and the due and
punctual
<PAGE>
performance of all the obligations to be performed by the Company under the
Securities and the Indenture.
SECTION 2. New Sub II hereby succeeds, is substituted for, and
shall possess and from time to time may exercise each and every power of, the
Company under the Indenture with the same effect as if New Sub II had been an
original party to the Indenture.
SECTION 3. After the execution and delivery of this
Supplemental Indenture, New Sub II may execute and deliver Securities under the
Indenture, and any act or proceeding required by the Indenture to be done or
performed by any board or officer of the Company may be done or performed with
like force and effect by the comparable board or officer of New Sub II.
SECTION 4. The Trustee accepts this Supplemental Indenture and
agrees to execute the trust created by the Indenture as hereby supplemented upon
the terms and conditions set forth in the Indenture, including the terms and
provisions defining and limiting the liabilities and responsibilities of the
Trustee, which terms and provisions shall in like manner define and limit its
liabilities and responsibilities in the performance of the trust created by the
Indenture as hereby supplemented; and without limiting the generality of the
foregoing, the Trustee shall not be responsible in any manner whatsoever for or
with respect to any of the recitals or statements contained herein, all of which
recitals or statements are made solely by the Company and by New Sub II, or for
or with respect to the validity or sufficiency of this Supplemental Indenture or
any of the terms or provisions hereof.
SECTION 5. The Indenture, supplemented as hereinabove set
forth, is in all respects ratified and confirmed, and the terms and conditions
thereof, supplemented as hereinabove set forth, shall be and remain in full
force and effect.
SECTION 6. This Supplemental Indenture shall become effective
at, and simultaneously with, the Effective Time of the Second Merger.
SECTION 7. THIS SUPPLEMENTAL INDENTURE, THE SECURTIES AND ANY
COUPONS APPERTAINING THERETO SHALL, PURSUANT TO SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW, BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO THE CHOICE OF LAW PROVISIONS
THEREOF (OTHER THAN SUCH SECTION 5-l401).
SECTION 8. This Supplemental Indenture may be executed in any
number of counterparts, and on separate counterparts, each of which shall be an
original; but such counterparts shall together constitute but one and the same
instrument.
SECTION 9. Capitalized terms used and not otherwise defined
herein are defined as set forth in the Indenture.
-2-
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
PUBLIC SERVICE COMPANY OF NORTH CAROLINA,
INCORPORATED
[Seal]
By: s/Jack G. Mason
Name: Jack G. Mason
Title: Vice President - Finance
By s/J. Paul Douglas
J. Paul Douglas
Corporate Counsel & Secretary
NEW SUB II, INC
[Seal]
By: s/Kevin B. Marsh
Name: Kevin B. Marsh
Title: Chief Financial Officer
Attest:
By: s/H. Thomas Arthur
Name: H. Thomas Arthur
Title: Assistant Secretary
FIRST UNION NATIONAL BANK, TRUSTEE
[Seal)
By: s/Terry W. Baler
Name: Terry W. Baker
Title: Vice President
Attest:
By: s/Shawn K. Bednasek
Name: Shawn K. Bednasek
Title: Vice President
