Exhibit 4.05
PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED
AND
FIRST UNION NATIONAL BANK,
As Trustee
FOURTH SUPPLEMENTAL INDENTURE
Dated as of February 12, 2001
To
INDENTURE
Dated as of January 1, 1996
Medium Term Notes
Due From Nine Months to
Thirty Years from Date of Issuance
5
FOURTH SUPPLEMENTAL INDENTURE, dated as of February 12, 2001 (this
"Supplemental Indenture") between Public Service Company of North Carolina,
Incorporated, a South Carolina corporation, as successor to Public Service
Company of North Carolina, Incorporated, a North Carolina corporation (herein
called the "Company"), and First Union National Bank, formerly First Union
National Bank of North Carolina, as trustee (herein called the "Trustee") under
the Indenture, dated as of January 1, 1996 (as such Indenture may heretofore
have been amended and supplemented, the "Indenture") between the Company and the
Trustee. Except as otherwise expressly provided in this Supplemental Indenture
or otherwise clearly required by the context hereof or thereof all terms used
herein or said form of Note that are defined in the Indenture shall have the
several meanings respectively assigned to them thereby.
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of Securities, to be issued from time
to time in one or more series as might be determined by the Company under the
Indenture, in an unlimited aggregate principal amount that may be authenticated
and delivered thereunder as in the Indenture provided; and
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of one or more additional series of Securities to
be known as its Medium Term Notes (the "Notes"), the form and substance thereof,
and the terms, provisions and conditions thereof, to be established 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 Notes, 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
Notes by the holders thereof, and for the purpose of setting forth, as provided
in the Indenture, the form and substance of the Notes 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 Notes
SECTION 1.01. There shall be one or more additional series of
Securities designated "Medium Term Notes," to bear such further designations as
hereafter provided, which series shall be unlimited in principal amount. The
forms of the Notes of each such series shall be established by an Officer's
Certificate delivered to the Trustee on or before the date of first
authentication of Notes of each such series and shall contain suitable
provisions with respect to the matters hereinafter in this Article specified,
including any further designation or descriptive title, the date or dates of
Maturity for the Notes of each such series, the rate or rates at which the Notes
of each such series shall bear interest, the date or dates on which such
interest shall be payable, the date from which the Notes of each such series
shall bear interest if such date is not the date of first authentication of
Notes of each such series, and other matters permitted by Section 3.1 of the
Indenture. Such Notes shall be issued as fully registered Securities in
denominations of One Thousand Dollars and, at the option of the Company, in any
integral multiple or multiples thereof (the exercise of such option to be
evidenced by the execution and delivery thereof). Unless otherwise provided in
the Officer's Certificate establishing the form of the Notes of each such
series, the principal of, and premium, if any, and interest, if any, on the
Notes of each series shall be payable at the office and agency of the Company in
Charlotte, North Carolina, in such coin or currency of the coin or currency of
the United States of America as at the time of payment is legal tender for
public and private debts. The Notes of each such series shall be dated as in the
Indenture provided.
SECTION 1.02. (a) If so provided in the Officer's Certificate
establishing the form of a series of Notes, such Notes shall be issued as
Registered Securities in global form (a "Global Notes") in an aggregate
principal amount equal to the principal amount of the Notes, 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 Securities Exchange Act of 1934, as
amended (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 account of its participants pursuant to the instructions of the
Company. Payments on any Note issued as a Global Note will be made to the
Depository.
(b) Pursuant to the provisions of Section 3.5 of the Indenture, a
Global Note may be transferred, in whole but not in part, in the manner provided
in Section 3.5 of the Indenture, only by the Depository for such series to a
nominee of the Depository, by a nominee of the Depository to the Depository or
to another nominee of the Depository, or by the Depository or such nominee to a
successor Depository selected or approved by the Company or to a nominee of such
successor Depository.
(c) If at any time the Depository notifies the Company that it is
unwilling or unable to continue as Depositary for the Notes or if at any time
the Depository for the Notes shall no longer be a clearing agency registered
under the Exchange Act, or other applicable statue or regulation, and a
successor Depository for the Notes 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 Notes
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
Notes of like tenor in certified form, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Note in
exchange for such Global Note. In addition, the Company may at any time
determine in its sole discretion that the Notes shall no longer be represented
by a Global Note, and that the provisions of this Section 1.02 shall no longer
apply to the Notes. 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 Notes in authorized denominations, and in aggregate principal
amount equal to the principal amount of the Global Note in exchange for such
Global Note. Upon exchange of the Global Note for such Notes in definitive
registered form without coupons, in authorized denominations, the Global Note
shall be canceled by the Trustee. Such Notes in definitive registered form
issued in exchange for the Global Note 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 Notes to the
Depository for delivery to the persons in whose names such Notes are so
registered.
SECTION 1.03. If the Notes of a series are issued in certificated form,
principal of and premium, if any, and interest thereon will be payable, the
transfer thereof will be registerable, and such Notes will be exchangeable for
Notes of the same series bearing identical terms and provisions, at the office
or agency of the Company in the City of Charlotte, North Carolina, 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 such Notes 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.
ARTICLE TWO
Other Matters
SECTION 2.01. (a) The Company designates the Trustee as Paying Agent
and Registrar with respect to the Notes, and designates the Corporate Trust
Office of the Trustee as an office at which (i) the principal of and premium, if
any, and interest on the Notes shall be payable, (ii) registration of transfers
and exchanges of the Notes may be effected and (iii) notices and demands to or
upon the Company in respect of the Notes and the Indenture may be served.
(b) The Company reserves the right to change, by one or more
supplemental indentures, any such designation made pursuant to this Section
2.01.
SECTION 2.02. The proper officers of the Company may execute, with the
Paying Agent and any Authenticating Agent for the Notes, one or more letters of
representations and other customary documentation to the Depository and any
supplements or amendments thereto necessary or desirable to make Notes eligible
for deposit at the Depository; provided, however, that the Company reserves the
right to terminate any such letter of representations or other agreement by one
or more Officer's Certificates; provided further, however, that the Company
reserves the right to enter into similar agreements with any other Depository
with respect to the Notes by one or more Officer's Certificates.
SECTION 2.03. Subject to the provisions of the Indenture (including,
without limitation, Section 4.6 thereof), the provisions of Sections 4.4 and 4.5
of the Indenture shall be applicable to the Notes.
ARTICLE THREE
Miscellaneous Provisions
SECTION 3.01. The Indenture, as supplemented by this Supplemental
Indenture, is in all respects ratified and confirmed, and this Supplemental
Indenture shall be deemed part of the Indenture in the manner and to the extent
herein and therein provided.
SECTION 3.02. The recitals herein contained are made by the Company and
not by the Trustee, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representation as to the validity of
sufficiency of this Supplemental Indenture.
SECTION 3.03. THIS SUPPLEMENTAL INDENTURE, THE NOTES 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 5-1401).
SECTION 3.04. This Supplemental Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and their respective corporate seals to be
hereunto affixed and attested all as of the day and year first written.
PUBLIC SERVICE COMPANY OF
NORTH CAROLINA, INCORPORATED
[Seal]
By: /s/ Xxxx X. Xxxxxx
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Attest: Its: Controller
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/s/ Xxxx X. Xxxxxxxx
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Secretary
FIRST UNION NATIONAL BANK, as
Trustee
[Seal]
By: /s/ Xxxxxxx Xxxxxxxx
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Attest: Its: Assistant Vice President
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/s/ Xxxxxxx X. Xxxxx
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Title: Trust Officer
