PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED
and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA, as Trustee
INDENTURE
Dated as of January 1, 1996
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Providing for Issuance of
Debt Securities in Series
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TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
1.1. Definitions
1
1.2. Compliance Certificates and Opinions 9
1.3. Form of Documents Delivered to Trustee 9
1.4. Acts of Holders 10
1.5. Notices, etc., to Trustee and Company 11
1.6. Notice to Holders; Waiver 12
1.7. Headings and Table of Contents 12
1.8. Successors and Assigns 12
1.9. Separability 13
1.10. Benefits of Indenture 13
1.11. Governing Law 13
1.12. Legal Holidays 13
ARTICLE 2
SECURITY FORMS
2.1. Forms Generally 13
2.2. Form of Trustee's Certificate of Authentication 14
2.3. Securities in Global Form 14
2.4. Form of Legend for Securities in Global Form 15
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ARTICLE 3
THE SECURITIES
3.1. Amount Unlimited; Issuable in Series 15
3.2. Denominations 18
3.3. Execution, Authentication, Delivery and Dating 18
3.4. Temporary Securities 21
3.5. Registration, Transfer and Exchange 21
3.6. Replacement Securities 25
3.7. Payment of Interest; Interest Rights Preserved 26
3.8. Persons Deemed Owners 27
3.9. Cancellation 28
3.10. Computation of Interest 28
3.11. CUSIP Numbers 28
3.12. Currency of Payment in Respect of Securities 28
ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
4.1. Termination of Company's Obligations Under
the Indenture 28
4.2. Application of Trust Funds 30
4.3. Applicability of Defeasance Provisions;
Company's Option to Effect Defeasance or
Covenant Defeasance 30
4.4. Defeasance and Discharge 30
4.5. Covenant Defeasance 31
4.6. Conditions to Defeasance or Covenant Defeasance 31
4.7. Deposited Money and Government Obligations to Be Held in Trust 33
4.8. Repayment to Company 33
4.9. Indemnity for Government Obligations 33
ARTICLE 5
DEFAULTS AND REMEDIES
5.1. Events of Default 34
5.2. Acceleration; Rescission and Annulment 35
5.3. Collection of Indebtedness and Suits for Enforcement
by Trustee 36
5.4. Trustee May File Proofs of Claim 36
5.5. Trustee May Enforce Claims Without Possession
of Securities 36
5.6. Delay or Omission Not Waiver 36
5.7. Waiver of Past Defaults 37
5.8. Control by Majority 37
5.9. Limitation on Suits by Holders 37
5.10. Rights of Holders to Receive Payment 38
5.11. Application of Money Collected 38
5.12. Restoration of Rights and Remedies 38
5.13. Rights and Remedies Cumulative 38
ARTICLE 6
THE TRUSTEE
6.1. Certain Duties and Responsibilities of the Trustee 39
6.2. Rights of Trustee 39
6.3. Trustee May Hold Securities 40
6.4. Money Held in Trust 40
6.5. Trustee's Disclaimer 40
6.6. Notice of Defaults 40
6.7. Reports by Trustee to Holders 40
6.8. Securityholder Lists 40
6.9. Compensation and Indemnity 41
6.10. Replacement of Trustee 41
6.11. Acceptance of Appointment by Successor 43
6.12. Eligibility Disqualification 44
6.13. Merger, Conversion, Consolidation or Succession to Business 44
6.14. Appointment of Authenticating Agent 44
ARTICLE 7
CONSOLIDATION, MERGER OR SALE BY THE COMPANY
7.1. Consolidation, Merger or Sale of Assets Permitted 46
ARTICLE 8
SUPPLEMENTAL INDENTURES
8.1. Supplemental Indentures Without Consent of Holders 46
8.2. Supplemental Indentures With Consent of Holders 48
8.3. Compliance with Trust Indenture Act 49
8.4. Execution of Supplemental Indentures 49
8.5. Effect of Supplemental Indentures 49
8.6. Reference in Securities to Supplemental Indentures 49
ARTICLE 9
COVENANTS
9.1. Payment of Principal, Premium, if any, and Interest 49
9.2. Maintenance of Office or Agency 49
9.3. Money for Securities Payments to Be Held in Trust;
Unclaimed Money 51
9.4. Corporate Existence 52
9.5. Insurance 52
9.6. Reports by the Company 52
9.7. Annual Review Certificate; Notice of Defaults or
Events of Default 53
9.8. Limitation on Liens 53
9.9. Limitation on Sale and Leaseback Transactions 54
9.10. Books of Record and Account; Compliance with Law 55
9.11. Taxes 55
ARTICLE 10
REDEMPTION
10.1. Applicability of Article 56
10.2. Election to Redeem; Notice to Trustee 56
10.3. Selection of Securities to Be Redeemed 56
10.4. Notice of Redemption 56
10.5. Deposit of Redemption Price 57
10.6. Securities Payable on Redemption Date 58
10.7. Securities Redeemed in Part 58
ARTICLE 11
SINKING FUNDS
11.1. Applicability of Article 59
11.2. Satisfaction of Sinking Fund Payments with Securities 59
11.3. Redemption of Securities for Sinking Fund 59
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PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED
and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as Trustee
---------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of January 1, 1996
to
INDENTURE
Dated as of January 1, 1996
---------------------
6.99% Senior Debentures Due 2026
FIRST SUPPLEMENTAL INDENTURE dated as of JANUARY 1, 1996 (this
"Supplemental Indenture") between PUBLIC SERVICE COMPANY OF NORTH CAROLINA,
INCORPORATED, a corporation duly organized and existing under the laws of the
State of North Carolina (the "Company"), and FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, as trustee (the "Trustee") under the Indenture dated as of JANUARY 1,
1996 between the Company and the Trustee (as such Indenture may heretofore have
been amended and supplemented, the "Indenture"). Except as otherwise expressly
provided in this Supplemental Indenture or in the form of Debenture set forth
herein or otherwise clearly required by the context hereof or thereof, all terms
used herein or in said form of Debenture that are defined in the Indenture shall
have the several meanings respectively assigned to them thereby.
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WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of Securities, to be issued from
time to time in one or more series as might be determined by the Company
under the Indenture, in an unlimited aggregate principal amount that may be
authenticated and delivered thereunder as in the Indenture provided;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of Securities to
be known as its 6.99% Senior Debentures Due 2026 (the "Debentures"), the
form and substance thereof, and the terms, provisions and conditions
thereof, to be set forth as provided in the Indenture and this Supplemental
Indenture; and
WHEREAS, the Company desires and has requested the Trustee to join
with it in the execution and delivery of this Supplemental Indenture and
all requirements necessary to make this Supplemental Indenture a valid
instrument, in accordance with its terms, and to make the Debentures, when
executed by the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company, have been performed and fulfilled, and
the execution and delivery hereof have been in all respects duly
authorized.
NOW, THEREFORE, in consideration of the purchase and acceptance of
the Debentures by the holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
ARTICLE ONE
General Terms and Conditions of the Debentures
SECTION 1.01. There shall be and is hereby authorized a series of
Securities designated the "6.99% Senior Debentures Due 2026", the aggregate
principal amount of which shall be limited to $50,000,000, which amount shall be
as set forth in any written order of the Company for the authentication and
delivery of Debentures. Debentures may, upon execution of this Supplemental
Indenture or from time to time thereafter, be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver such Debentures to or upon the written order of the
Company, signed by its Chairman of the Board, its President, or any Vice
President and its Treasurer or an Assistant Treasurer, without any further
action by the Company. The Debentures shall mature and the principal thereof
shall be due and payable together with all accrued and unpaid interest thereon,
on January 15, 2026.
SECTION 1.02. (a) The Debentures shall be issued as Registered
Securities in global form (a "Global Debenture") in an aggregate principal
amount equal to the principal amount of the Debentures, to be registered in the
name of The Depository Trust Company, New York, New York or any successor
registered as a clearing agency under the Exchange Act or other applicable
statute or regulation, as the Depository, or its nominee, and delivered by the
Trustee to the Depository for crediting to the accounts of its participants
pursuant to the instructions of the Company. Payments on the Debentures issued
as a Global Debenture will be made to the Depository.
(b) Pursuant to the provisions of Section 3.5 of the Indenture,
the Global Debenture may be transferred, in whole but not in part, in the manner
provided in Section 3.5 of the Indenture, only by the Depository for such series
to a nominee of the Depository, by a nominee of the Depository to the Depository
or to another nominee of the Depository, or by the Depository or such nominee to
a successor Depository selected or approved by the Company or to a nominee of
such successor Depository.
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(c) If at any time the Depository notifies the Company that it is
unwilling or unable to continue as Depository for the Debentures or if at any
time the Depository for the Debentures shall no longer be a clearing agency
registered under the Exchange Act, or other applicable statute or regulation,
and a successor Depository for the Debentures is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, this Section 1.02 shall no longer be applicable
to the Debentures and the Company will execute and, subject to Section 3.5 of
the Indenture, the Trustee will, upon receipt of a Company Order for the
authentication and delivery of certificated Securities of like tenor,
authenticate and deliver Debentures of like tenor in certificated form, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Debenture in exchange for such Global Debenture.
In addition, the Company may at any time determine in its sole discretion that
the Debentures shall no longer be represented by a Global Debenture, and that
the provisions of this Section 1.02 shall no longer apply to the Debentures. In
such event, the Company will execute and, subject to Section 3.5 of the
Indenture, the Trustee, upon receipt of a Company Order evidencing such
determination by the Company, will authenticate and deliver certificated
Debentures in authorized denominations, and in aggregate principal amount equal
to the principal amount of the Global Debenture in exchange for such Global
Debenture. Upon exchange of the Global Debenture for such Debentures in
definitive registered form without coupons, in authorized denominations, the
Global Debenture shall be canceled by the Trustee. Such Debentures in definitive
registered form issued in exchange for the Global Debenture pursuant to this
Section 1.02(c) shall be registered in such names and authorized denominations
as the Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Debentures to the Depository for delivery to the persons in whose names
such Debentures are so registered.
SECTION 1.03. If, pursuant to the provisions of Section 1.02(c)
hereof, the Debentures are issued in certificated form, principal of and
premium, if any, and interest thereon will be payable, the transfer thereof will
be registrable, and Debentures will be exchangeable for Debentures bearing
identical terms and provisions, at the office or agency of the Company in the
Borough of Manhattan, the City of New York, in any coin or currency of the
United States of America that at the time of payment is legal tender for payment
of public and private debts; provided, however, that payment of interest on any
of the Debentures may be made at the option of the Company (i) by check mailed
to the Holder thereof at such address as shall appear in the Security Register
or (ii) by wire transfer to an account maintained by the person entitled thereto
as specified in the Register.
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SECTION 1.04. Each Debenture will bear interest at the rate of
6.99% per annum from its original date of issuance or from the most recent
Interest Payment Date (as defined below) to which interest has been paid or duly
provided for until the principal thereof becomes due and payable, and any
overdue principal thereof and (to the extent that payment of such interest is
enforceable under applicable law) any overdue installment of interest thereon
will bear interest at the same rate per annum, payable in semi-annually in
arrears on January 15th and July 15th of each year (each, an "Interest Payment
Date"), commencing on July 15, 1996, and at Maturity to the person in whose name
such Debenture or any Predecessor Security thereof is registered, at the close
of business on the Regular Record Date for such interest installment, which
shall be the close of business on the Business Day 15 days preceding an Interest
Payment Date; provided, however, that (i) if any Debenture is authenticated
after a Regular Record Date and before the Interest Payment Date therefor, such
interest installment shall be paid on the next succeeding Interest Payment Date
to the Holder thereof on the Regular Record Date therefor and (ii) interest
payable at Maturity shall be paid to the Person to whom principal is paid. Any
such interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to such Holder on such Regular Record Date by
virtue of having been such Holder, and such defaulted interest may be paid by
the Company, at its election, to the person in whose name the Debenture (or one
or more Predecessor Securities thereof) is registered at the close of business
on a Special Record Date to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be given to the Holders of the
Debentures not less than 10 days prior to such Special Record Date, or in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Debentures may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
ARTICLE TWO
Form of Debenture
The Debentures and the Trustee's Certificate of Authentication to
be endorsed thereon are to be substantially in the following forms:
[FORM OF FACE OF DEBENTURE]
[If the Debenture is to be a Global Debenture, insert: This
Debenture is in global form within the meaning of the Indenture hereinafter
referred to and is registered in the name of the Depository or a nominee of the
Depository. Unless and until it is exchanged in whole or in part for Securities
in certificated form, this Security may not be transferred except as a whole by
the Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository or by the Depository or
any such nominee to a successor Depository or a nominee of such successor
Depository.
Unless this Debenture is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York) to the Company or
its agent for registration of transfer, exchange or payment, and any certificate
to be issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.]
PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED
6.99% Senior Debenture Due 2026
No. ________________ CUSIP No. 744516AA3
