EXHIBIT 4.2
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DUKE CAPITAL CORPORATION
TO
THE CHASE MANHATTAN BANK
Trustee
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Supplemental Indenture
Dated as of ,
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$
Series % Senior Notes
due ,
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TABLE OF CONTENTS/1/
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PAGE
ARTICLE 1
SERIES % SENIOR NOTES......... 1
SECTION 101. Establishment............................. 1
SECTION 102. Definitions............................... 2
SECTION 103. Payment of Principal and Interest......... 2
SECTION 104. Denominations............................. 3
SECTION 105. Global Securities......................... 3
SECTION 106. Redemption................................ 3
SECTION 107. Paying Agent.............................. 4
ARTICLE 2
MISCELLANEOUS PROVISIONS............... 4
SECTION 201. Recitals by Corporation................... 4
SECTION 202. Ratification and Incorporation of
Original Indenture....................... 4
SECTION 203. Executed in Counterparts.................. 4
EXHIBIT A FORM OF SERIES % SENIOR NOTE DUE ,
EXHIBIT B CERTIFICATE OF AUTHENTICATION
/1/ This Table of Contents does not constitute part of the Indenture or have
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any bearing upon the interpretation of any of its terms and provisions.
i
THIS SUPPLEMENTAL INDENTURE is made as of the day of ,
, by and between DUKE CAPITAL CORPORATION, a North Carolina corporation,
having its principal office at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000 (the "Corporation"), and THE CHASE MANHATTAN BANK, a New York
banking corporation, as Trustee (herein called the "Trustee").
W I T N E S S E T H:
WHEREAS, the Corporation has heretofore entered into a Senior
Indenture, dated as of April 1, 1998 (the "Original Indenture") with The
Chase Manhattan Bank, as Trustee;
WHEREAS, the Original Indenture is incorporated herein by this
reference and the Original Indenture, as may be amended and supplemented to
the date hereof, including by this Supplemental Indenture, is herein
called the "Indenture";
WHEREAS, under the Indenture, a new series of Securities may at any
time be established in accordance with the provisions of the Indenture and the
terms of such series may be described by a supplemental indenture executed by
the Corporation and the Trustee;
WHEREAS, the Corporation proposes to create under the Indenture a
series of Securities;
WHEREAS, additional Securities of other series hereafter established,
except as may be limited in the Indenture as at the time supplemented and
modified, may be issued from time to time pursuant to the Indenture as at the
time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the execution and
delivery of this Supplemental Indenture and to make it a valid and binding
obligation of the Corporation have been done or performed.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
SERIES % SENIOR NOTES
SECTION 101. Establishment. There is hereby established a new
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series of Securities to be issued under the Indenture, to be designated as the
Corporation's Series % Senior Notes due , (the "Series
Notes").
There are to be authenticated and delivered $ principal
amount of Series Notes, and no further Series Notes shall be authenticated
and delivered except as provided by Sections 304, 305, 306, 906 or 1106 of the
Original Indenture. The Series Notes shall be issued in definitive fully
registered form without coupons.
The Series Notes shall be in substantially the form set out in
Exhibit A hereto, and the form of the Trustee's Certificate of Authentication
for the Series Notes shall be in substantially the form set forth in Exhibit B
hereto.
Each Series Note shall be dated the date of authentication thereof
and shall bear interest from the date of original issuance thereof or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for.
SECTION 102. Definitions. The following defined terms used herein
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shall, unless the context otherwise requires, have the meanings specified below.
Capitalized terms used herein for which no definition is provided herein shall
have the meanings set forth in the Original Indenture.
"Interest Payment Dates" means .
"Original Issue Date" means , .
"Regular Record Date" means .
"Stated Maturity" means , .
SECTION 103. Payment of Principal and Interest. The unpaid principal
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amount of the Series Notes shall bear interest at the rate of % per annum
until paid or duly provided for, such interest to accrue from , or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for. Interest shall be paid in arrears on each Interest
Payment Date to the Person in whose name the Series Notes are registered on
the Regular Record Date for such Interest Payment Date; provided that interest
payable at the Stated Maturity of principal or on a Redemption Date as provided
herein will be paid to the Person to whom principal is payable. Any such
interest that is not so punctually paid or duly provided for will forthwith
cease to be payable to the Holders on such Regular Record Date and may either be
paid to the Person or Persons in whose name the Series Notes are registered at
the close of business on a Special Record Date for the payment of such defaulted
interest to be fixed by the Trustee ("Special Record Date"), notice whereof
shall be given to Holders of the Series Notes not less than ten (10) days
prior to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange, if
any, on which the Series Notes may be listed, and upon such notice as may be
required by any such exchange, all as more fully provided in the Original
Indenture.
Payments of interest on the Series Notes will include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for the Series Notes shall be computed and paid on the basis of a
360-day year of twelve 30-day months. In the event that any date on which
interest is payable on the Series Notes is not a Business Day, then payment of
the interest payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or payment in respect of any such
delay) with the same force and effect as if made on the date the payment was
originally payable.
Payment of the principal and interest on the Series Notes shall be
made at the office of the Paying Agent in such coin or currency of the United
States of America as at the time
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of payment is legal tender for payment of public and private debts, with any
such payment that is due at the Stated Maturity or at earlier redemption of any
Series Notes being made upon surrender of such Series Notes to the Paying
Agent. Payments of interest (including interest on any Interest Payment Date)
will be made, subject to such surrender where applicable, at the option of the
Corporation, (i) by check mailed to the address of the Person entitled thereto
as such address shall appear in the Security Register or (ii) by wire transfer
at such place and to such account at a banking institution in the United States
as may be designated in writing to the Trustee at least sixteen (16) days prior
to the date for payment by the Person entitled thereto.
SECTION 104. Denominations. The Series Notes may be issued in
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denominations of $ or any integral multiple thereof.
SECTION 105. Global Securities. The Series Notes will initially
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be issued in the form of one or more Global Securities registered in the name of
the Depositary (which initially shall be The Depository Trust Company) or its
nominee. Except under the limited circumstances described below, Series Notes
represented by such Global Security or Global Securities will not be
exchangeable for, and will not otherwise be issuable as, Series Notes in
definitive form. The Global Securities described above may not be transferred
except by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or to a
successor Depositary or its nominee.
A Global Security shall be exchangeable for Series Notes registered
in the names of persons other than the Depositary or its nominee only if (i) the
Depositary notifies the Corporation that it is unwilling or unable to continue
as a Depositary for such Global Security and no successor Depositary shall have
been appointed by the Corporation within 90 days of receipt by the Corporation
of such notification, or if at any time the Depositary ceases to be a clearing
agency registered under the Exchange Act at a time when the Depositary is
required to be so registered to act as such Depositary and no successor
Depositary shall have been appointed by the Corporation within 90 days after it
becomes aware of such cessation, or (ii) the Corporation in its sole discretion
determines that such Global Security shall be so exchangeable. Any Global
Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Series Notes registered in such names as the Depositary shall
direct.
SECTION 106. Redemption. The Series Notes shall not be subject to
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redemption.
The Series Notes shall not have a sinking fund.
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SECTION 107. Paying Agent. The Trustee shall initially serve as
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Paying Agent with respect to the Series Notes, with the Place of Payment
initially being the Corporate Trust Office.
ARTICLE 2
MISCELLANEOUS PROVISIONS
SECTION 201. Recitals by Corporation. The recitals in this
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Supplemental Indenture are made by the Corporation only and not by the Trustee,
and all of the provisions contained in the Original Indenture in respect of the
rights, privileges, immunities, powers and duties of the Trustee shall be
applicable in respect of the Series Notes and of this Supplemental
Indenture as fully and with like effect as if set forth herein in full.
SECTION 202. Ratification and Incorporation of Original Indenture.
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As supplemented hereby, the Original Indenture is in all respects ratified and
confirmed, and the Original Indenture and this Supplemental Indenture
shall be read, taken and construed as one and the same instrument.
SECTION 203. Executed in Counterparts. This Supplemental
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Indenture may be executed in several counterparts, each of which shall be deemed
to be an original, and such counterparts shall together constitute but one and
the same instrument.
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IN WITNESS WHEREOF, each party hereto has caused this instrument to be
signed in its name and behalf by its duly authorized officers, all as of the day
and year first above written.
DUKE CAPITAL CORPORATION
By:_______________________________________________
Attest:
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THE CHASE MANHATTAN BANK,
as Trustee
By:_______________________________________________
Attest:
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EXHIBIT A
FORM OF
SERIES % SENIOR NOTE
DUE ,
No. CUSIP NO.
DUKE ENERGY CORPORATION
SERIES % SENIOR NOTE
DUE ,
Principal Amount: $
Regular Record Date:
Original Issue Date: ,
Stated Maturity: ,
Interest Payment Dates:
Interest Rate: % per annum
Authorized Denomination: $ or any integral multiples thereof
Duke Capital Corporation, a Delaware corporation (the "Corporation",
which term includes any successor corporation under the Indenture referred to on
the reverse hereof), for value received, hereby promises to pay to ,
or registered assigns, the principal sum of
DOLLARS ($ ) on the Stated Maturity shown above and to pay
interest thereon from the Original Issue Date shown above, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, in arrears on each Interest Payment Date as specified
above, commencing on the Interest Payment Date next succeeding the Original
Issue Date shown above and on the Stated Maturity at the rate per annum shown
above (the "Interest Rate") until the principal hereof is paid or made available
for payment and on any overdue principal and on any overdue installment of
interest. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date (other than an Interest Payment Date that is the
Stated Maturity will, as provided in such Indenture, be paid to the Person in
whose name this Series % Senior Note (this "Security") is registered at the
close of business on the Regular Record Date as specified above next preceding
such Interest Payment Date; provided that any interest payable at Stated
Maturity will be paid to the Person to whom principal is payable. Except as
otherwise provided in the Indenture, any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either
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be paid to the Person in whose name this Security is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange, if any, on which the Securities of this
series shall be listed, and upon such notice as may be required by any such
exchange, all as more fully provided in said Indenture.
Payments of interest on this Security will include interest accrued to
but excluding the respective Interest Payment Dates. Interest payments for this
Security shall be computed and paid on the basis of a 360-day year of twelve 30-
day months. In the event that any date on which interest is payable on this
Security is not a Business Day, then payment of the interest payable on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or payment in respect of any such delay) with the same force and
effect as if made on the date the payment was originally payable. "Business
Day" means a day other than (i) a Saturday or a Sunday, (ii) a day on which
banks in New York, New York are authorized or obligated by law or executive
order to remain closed or (iii) a day on which the Corporate Trust Office is
closed for business.
Payment of the principal of and interest due at the Stated Maturity
of this Security shall be made upon surrender of this Security, at the Corporate
Trust Office, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts. Payment
of interest (including interest on an Interest Payment Date) will be made,
subject to such surrender where applicable, at the option of the Corporation,
(i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or (ii) by wire transfer at such
place and to such account at a banking institution in the United States as may
be designated in writing to the Trustee at least sixteen (16) days prior to the
date for payment by the Person entitled thereto.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY
SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed under its corporate seal.
Dated:
DUKE CAPITAL CORPORATION
By:
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Attest:
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
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(Reverse Side of Security)
This Security is one of a duly authorized issue of Securities of the
Corporation (the "Securities"), issued and issuable in one or more series under
a Senior Indenture, dated as of April 1, 1998, as supplemented (the
"Indenture"), between the Corporation and The Chase Manhattan Bank, as Trustee
(the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitation of rights, duties and
immunities thereunder of the Corporation, the Trustee and the Holders of the
Securities issued thereunder and of the terms upon which said Securities are,
and are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof as Series % Senior Notes due ,
(the "Series Notes") in the aggregate principal amount of up to $ .
Capitalized terms used herein for which no definition is provided herein
shall have the meanings set forth in the Indenture.
The Securities of this series are not subject to redemption prior to
their Stated Maturity.
If an Event of Default with respect to the Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner, with the effect and subject to
the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the Holders of the Securities of all series
affected under the Indenture at any time by the Corporation and the Trustee with
the consent of the Holders of not less than a majority in principal amount of
the Outstanding Securities of all series affected thereby (voting as one class).
The Indenture contains provisions permitting the Holders of not less than a
majority in principal amount of the Outstanding Securities of all series with
respect to which a default under the Indenture shall have occurred and be
continuing (voting as one class), on behalf of the Holders of the Securities of
all such series, to waive, with certain exceptions, such default under the
Indenture and its consequences. The Indenture also permits the Holders of not
less than a majority in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Corporation with certain provisions of the Indenture
affecting such series. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof, whether or not notation
of such consent or waiver is made upon this Security.
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No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Corporation,
which is absolute and unconditional, to pay the principal of and interest on
this Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Corporation for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Corporation and the Security Registrar and duly executed by, the Holder hereof
or his attorney duly authorized in writing, and thereupon one or more new
Securities of this series, of authorized denominations and of like tenor and for
the same aggregate principal amount, will be issued to the designated transferee
or transferees. No service charge shall be made for any such registration of
transfer or exchange, but the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than a majority in principal
amount of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request and shall have failed to institute any such
proceeding for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or any
interest hereon on or after the respective due dates expressed herein.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of the Securities of this series - if applicable, insert -
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and for covenant defeasance at any time of certain covenants in the Indenture
upon compliance with certain conditions set forth in the Indenture.
Prior to due presentment of this Security for registration of
transfer, the Corporation, the Trustee and any agent of the Corporation or the
Trustee may treat the Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Corporation, the Trustee nor any such agent shall be affected by
notice to the contrary.
The Securities of this series are issuable only in registered form
without coupons in denominations of $ and any integral multiple thereof. As
provided in the Indenture and subject to the limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same upon surrender of the Security or
Securities to be exchanged at the office or agency of the Corporation.
This Security shall be governed by, and construed in accordance with,
the internal laws of the State of New York.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ________
(Cust)
TEN ENT - as tenants by the entireties Custodian ________
(Minor)
JT TEN - as joint tenants with rights under Uniform Gifts
of survivorship and not as to Minors Act
tenants in common ________
(State)
Additional abbreviations may also be used though not on the above list.
______________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s)
unto_________________(please insert Social Security or other identifying number
of assignee).
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
________________________________________________________________________________
agent to transfer said Security on the books of the Corporation, with full power
of substitution in the premises.
Dated:_________________ _______________________________________________________
_______________________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
the within instrument in every particular without
alteration or enlargement, or any change whatever.
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EXHIBIT B
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:______________________________
Authorized Officer
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