INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE among DUKE ENERGY CAROLINAS, LLC, JPMORGAN CHASE BANK, N.A., as Trustee, and THE BANK OF NEW YORK TRUST COMPANY, N.A., as Successor Trustee Dated as of September 24, 2007
Exhibit 4.6.1
INSTRUMENT
OF
RESIGNATION, APPOINTMENT AND ACCEPTANCE
among
JPMORGAN CHASE BANK, N.A., as Trustee,
and
THE BANK OF NEW YORK TRUST COMPANY, N.A., as Successor Trustee
Dated as of September 24, 2007
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INSTRUMENT OF RESIGNATION, APPOINTM AND ACCEPTANCE
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE entered into as of the 24th day of
September, 2007 among DUKE ENERGY CAROLINAS, LLC (successor to DUKE POWER COMPANY), a limited
liability company organized and existing under the laws of the State of North Carolina (the
“Company”), having its principal office at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000, JPMORGAN CHASE BANK, N.A., a national banking association (“JPMorgan”), having its corporate
trust office at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as Trustee, and THE BANK OF NEW YORK
TRUST COMPANY, N.A., a national banking association (“BNY”), having a corporate trust office at 000
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, as successor Trustee.
W I
T N E S S E T H:
WHEREAS, Duke Power Company, a corporation organized and existing under the laws of the State
of New Jersey, to which the Company is the successor, heretofore executed and delivered to GUARANTY
TRUST COMPANY OF NEW YORK (now JPMorgan), as Trustee, its First and Refunding Mortgage dated as of
December 1, 1927 (hereinafter the “Original Indenture”), to secure the payment of bonds issued and
to be issued in accordance with the provisions of the Original Indenture, as supplemented and
amended from time to time (the “Indenture”); and
WHEREAS, bonds in the amount of $1,330,741,746 are outstanding under the Indenture as of the
date hereof; and
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WHEREAS, § 7.01(f) of the Indenture provides that the Trustee under the Indenture may at any
time resign and be discharged of the trusts created by the Indenture by giving written notice to
the Company, addressed and mailed to the Company at Charlotte, North Carolina, and by publishing
notice of such resignation as provided in said § 7.01(f); and
WHEREAS, § 7.03 of the Indenture provides that a successor Trustee may be appointed, in the
manner provided in said § 7.03, in case the Trustee under the Indenture shall resign, by the
holders of a majority in principal amount of the bonds secured by the Indenture and then
outstanding (the “bondholders”); and
WHEREAS § 7.03 of the Indenture further provides that, until a successor Trustee shall be
appointed by the bondholders as therein provided, the Company may appoint a successor Trustee to
fill the vacancy in the office of Trustee under the Indenture by instrument executed by order of
the Board of Directors of the Company; and
WHEREAS, § 7.03 of the Indenture further provides that the Company shall publish notice of any
appointment of a successor Trustee made by it pursuant to said § 7.03 in the manner provided in
§ 7.03; and
WHEREAS, § 10.06 of the Indenture provides that any Trustee under the Indenture shall at all
times satisfy the requirements set forth in said Section; and
WHEREAS, § 7.03 of the Indenture provides that any successor Trustee shall execute,
acknowledge and deliver to its predecessor Trustee, and also to the Company, an instrument
accepting such appointment under the Indenture; and
WHEREAS, JPMorgan desires to resign as Trustee under the Indenture; and
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WHEREAS, the Company desires to appoint BNY as successor Trustee under the Indenture; and
WHEREAS, BNY is willing to accept such appointment as successor Trustee under the Indenture;
and
WHEREAS, as of the date of these presents, no successor Trustee under the Indenture has been
appointed by the bondholders; and
WHEREAS, by resolution of the Board of Directors of the Company adopted as of September 20,
2007, the undersigned officers of the Company were authorized, directed and ordered to execute and
deliver this instrument;
NOW, THEREFORE, THIS INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, WITNESSETH: That
for and in consideration of the premises, and of other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, it is hereby covenanted, declared and decreed by
the Company, JPMorgan and BNY as follows:
FIRST: JPMorgan and the Company, simultaneously with the execution and delivery of
these presents, have caused the notices required pursuant to the provisions of §§ 7.01(f) and 7.03,
respectively, of the Indenture to commence being published as therein required;
SECOND: BNY hereby represents that it is a bank eligible under the provisions of
§ 10.06 of the Indenture and Section 310(a) of the Trust Indenture Act of 1939 to be appointed
successor Trustee under the Indenture; and
THIRD: Effective at the close of business on the date hereof, JPMorgan hereby resigns
and, by its execution and delivery of these presents to the Company and by the
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simultaneous mailing of this instrument to the Company, as required by § 7.01(f), hereby gives
notice of its resignation as Trustee under the Indenture, as agent of the Company for payment of
principal and interest, and as the office or agency of the Company in the Borough of Manhattan,
City and State of New York, where the bonds and any coupons issued in accordance with the Indenture
may be presented for payment, exchange, transfer or registration and where notices and demands to
or upon the Company in respect of the bonds and coupons issued in accordance with the Indenture or
in respect of the Indenture may be served.
FOURTH: The Company hereby accepts the foregoing resignations and appoints BNY as
successor Trustee under the Indenture, as agent of the Company for payment of principal and
interest, and as the office or agency of the Company in the Borough of Manhattan, City and State of
New York, where the bonds and any coupons issued in accordance with the Indenture may be presented
for payment, exchange, transfer, or registration and where notices and demands to or upon the
Company in respect of the bonds and coupons issued in accordance with the Indenture or in respect
of the Indenture may be served, with all the estates, properties, rights, powers, trusts, duties
and obligations of JPMorgan under the Indenture as provided in the Indenture, such appointment to
be effective at the close of business on the date hereof.
FIFTH: BNY hereby accepts its appointment as successor Trustee under the Indenture,
effective at the close of business on the date hereof, and assumes all the estates, properties,
rights, powers, trusts, duties and obligations of the Trustee thereunder as provided in the
Indenture, and BNY also accepts, effective at the close of business on the date hereof, its
appointment as agent of the Company for payment of principal and
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interest, and as the office or agency of the Company in the Borough of Manhattan, City and
State of New York, where the bonds and any coupons issued in accordance with the Indenture may be
presented for payment, exchange, transfer or registration and where notices and demands to or upon
the Company in respect of the bonds and coupons issued in accordance with the Indenture or in
respect of the Indenture may be served, subject to all the terms and provisions therein contained.
SIXTH: The Company and BNY hereby request JPMorgan to confirm, assign, transfer and
set over to BNY, as its successor in trust under the Indenture, all the right, title, and interest
of JPMorgan, as Trustee, in and to the mortgaged property and such rights, powers, trusts, duties
and obligations of JPMorgan, as Trustee, and to assign, transfer and deliver to BNY, as successor
Trustee, any and all money and other property subject to the lien of the Indenture held by JPMorgan
as Trustee under the Indenture.
SEVENTH: Pursuant to the request of BNY and the Company hereby made, JPMorgan hereby
confirms, assigns, transfers and sets over to BNY, as its successor in trust under the Indenture,
all the right, title and interest of JPMorgan, as Trustee, in and to the mortgaged property and
such rights, powers, trusts, duties and obligations and hereby does assign, transfer and deliver to
BNY as such successor Trustee any and all money and other property subject to the lien of the
Indenture held by JPMorgan as Trustee under the Indenture.
EIGHTH: The Company, for the purpose of more fully and certainly vesting in and
confirming to BNY as successor Trustee under the Indenture said mortgaged property, rights, powers,
trusts, duties and obligations, at the request of BNY, joins in the execution hereof.
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NINTH: The Company, JPMorgan and BNY hereby agree, upon reasonable request of any of
them, to execute, acknowledge and deliver such further instruments of conveyance and further
assurance and to do such other things as may reasonably be required for more fully and certainly
vesting in and confirming to BNY all the right, title and interest of JPMorgan, as Trustee, in and
to the estates held in trust under the Indenture, and to such rights, powers, trusts, duties and
obligations of JPMorgan, as Trustee. JPMorgan agrees to provide whatever reasonable assistance BNY
may require for the orderly transfer of this trusteeship and the foregoing agency appointments,
including furnishing BNY with a list of Bondholders and such other documentation from JPMorgan’s
files as BNY may require and providing BNY with any explanation of JPMorgan’s services under the
Indenture that BNY may consider necessary or advisable in connection with its administration as
successor Trustee and of such agency appointments.
TENTH: This instrument may be executed in any number of counterparts, each of which,
when so executed and delivered, shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
ELEVENTH: Terms not otherwise defined in this Instrument of Resignation, Appointment
and Acceptance shall have the definitions given thereto in the Indenture.
TWELFTH: This Instrument of Resignation, Appointment and Acceptance shall be construed
in accordance with and governed by the laws of the State of New York.
THIRTEENTH: All actions taken by BNY as Trustee prior to the effective date hereof
shall be deemed to have been taken by BNY as agent of and attorney-in-fact for JPMorgan, as
Trustee. Furthermore, all actions taken by the Company vis a vis BNY as
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Trustee prior to the effective date hereof shall be deemed to have been taken vis a vis BNY as
agent of and attorney-in fact for JPMorgan, as Trustee, and, as such, shall be deemed to have taken
vis a vis the proper entity.
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IN WITNESS WHEREOF, DUKE ENERGY CAROLINAS, LLC has caused this Instrument to be signed and
acknowledged by one of its Assistant Treasurers, its company seal to be affixed hereunto, and the
same to be attested by its Secretary or one of its Assistant Secretaries; JPMORGAN CHASE BANK, N.A.
has caused this Instrument to be executed and acknowledged by one of its Vice Presidents, its
corporate seal to be affixed hereunto, and the same to be attested by one of its Vice President,
and THE BANK OF NEW YORK TURST COMPANY, N.A. has caused this Instrument to be executed and
acknowledged by one of its Vice Presidents, it corporate seal to be affixed hereunto, and the same
to be attested by one of its Assistant Treasurers, as of the date first set fourth above.
| DUKE ENERGY CAROLINAS, LLC, |
||||
| By: | /s/ M. Xxxxx Xxxxxxx | |||
| M. Xxxxx Xxxxxxx | ||||
| Assistant Treasurer | ||||
[Seal]
Attest:
Attest:
/s/ Xxxxxx X. Xxxxx III |
||
Xxxxxx X. Xxxxx III
|
||
Assistant Secretary |
Signed, sealed, executed,
acknowledged and delivered
by Duke Energy Carolinas, LLC, in the
presence of:
acknowledged and delivered
by Duke Energy Carolinas, LLC, in the
presence of:
Xxxxxx X. Xxxxxx
|
||
Xxxxxx X. Xxxxx |
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| JPMORGAN CHASE BANK, N.A. |
||||
| By: | /s/ X.X. Xxxxx, Vice President | |||
| X.X. Xxxxx, Vice President | ||||
[Seal]
Attest:
Attest:
/s/ Xxxxx X. Xxxxx, Vice President
|
||
Xxxxx X. Xxxxx, Vice President |
Signed, sealed, executed,
acknowledged and delivered
by JPMorgan Chase Bank, N.A., in the
presence of:
acknowledged and delivered
by JPMorgan Chase Bank, N.A., in the
presence of:
Xxxxx Xxxxxxxxxxx
|
||
Xxxxx X. X’Xxxxxxxxxx |
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| THE BANK OF NEW YORK TRUST COMPANY, N.A. | ||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Xxxxx X. Xxxxx | ||||
| Vice President | ||||
[Seal]
Attest:
Attest:
/s/ Xxx Xxx Xxxxxx
|
||
Xxx Xxx Xxxxxx |
||
Assistant Treasurer |
Signed, sealed, executed,
acknowledged and delivered
by The Bank of New York Trust
Company, N.A., in the presence of:
acknowledged and delivered
by The Bank of New York Trust
Company, N.A., in the presence of:
Xxxxx Xxxxxxx
|
||
Xxxxx Xxxxxxxx |
STATE OF GEORGIA
|
) | |
| ) ss.: | ||
COUNTY OF XXXXXX
|
) |
Personally appeared before me Xxxxx Xxxxxxx, and made oath that he saw Xxxxx X. Xxxxx, a Vice
President, and Xxx Xxx Xxxxxx an Assistant Treasurer, respectively, of THE BANK OF NEW YORK TRUST
COMPANY, N.A., sign, attest and affix hereto the corporate seal of said The Bank of New York Trust
Company, N.A., and, as the act and deed of said corporation, deliver the within written and
foregoing instrument, and that he, with Xxxxx Xxxxxxxx, witnessed the execution thereof.
Sworn and subscribed before me
this day of September, 2007
this day of September, 2007
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STATE OF GEORGIA
|
) | |
| ) ss.: | ||
COUNTY OF XXXXXX
|
) |
I, Xxxxxxxx Xxxxxxx, a Notary Public in and for the State and County aforesaid, certify that
Xxx Xxx Xxxxxx personally came before me this day and acknowledged that she is an Assistant
Treasurer of THE BANK OF NEW YORK TRUST COMPANY, N.A., a national banking association, 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/herself
as one of its Assistant Treasurers.
Witness my hand and official seal, this day of September, 2007.
00
XXXXX XX XXX XXXX
|
) | |
| ) ss.: | ||
COUNTY OF NEW YORK
|
) |
Personally appeared before me Xxxxx X. X’Xxxxxxxxxx, and made oath that she saw X. X. Xxxxx, a
Vice President, and Xxxxx X. Xxxxx a Vice President, respectively, of JPMORGAN CHASE BANK, N.A,
sign, attest and affix hereto the corporate seal of said JPMorgan Chase Bank, N.A., and, as the act
and deed of said corporation, deliver the within written and foregoing instrument, and that she,
with Xxxxx Xxxxxxxxxxx, witnessed the execution thereof.
Sworn and subscribed before me
this day of September, 0000
this day of September, 0000
Xxxxxxx X. Xxxxxx
|
XXXXX XX XXX XXXX
|
) | |
| ) ss.: | ||
COUNTY OF NEW YORK
|
) |
I, Xxxxxxx X. Xxxxxx, a Notary Public in and for the State and County aforesaid, certify that
Xxxxx X. Xxxxx personally came before me this day and acknowledged that he is a Vice President of
JPMORGAN CHASE BANK, N.A., a national banking association, 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 Vice Presidents.
Witness my hand and official seal, this day of September, 2007.
| Xxxxxxx X. Xxxxxx |
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STATE OF NORTH CAROLINA
|
) | |
| ) ss.: | ||
COUNTY OF MECKLENBURG
|
) |
Personally appeared before me Xxxxxx X. Xxxxxx, and made oath that she saw M. Xxxxx Xxxxxxx,
an Assistant Treasurer, and Xxxxxx X. Xxxxx III an Assistant Secretary, respectively, of DUKE
ENERGY CAROLINAS, LLC, sign, attest and affix hereto the company seal of said Duke Energy
Carolinas, LLC, and, as the act and deed of said company, deliver the within written and foregoing
instrument, and that she, with Xxxxxx X. Xxxxx, witnessed the execution thereof.
Sworn and subscribed before me
this day of September, 2007
this day of September, 2007
Notary Public |
My commission expires
STATE OF NORTH CAROLINA
|
) | |
| ) ss.: | ||
COUNTY OF MECKLENBURG
|
) |
I, Xxxxxxxx X. Xxxx, a Notary Public in and for the State and County aforesaid, certify that
Xxxxxx X. Xxxxx III personally came before me this day and acknowledged that he is an Assistant
Secretary of DUKE ENERGY CAROLINAS, LLC, a limited liability company, and that, by authority duly
given and as the act of the company, the foregoing instrument was signed in its name by one of its
Assistant Treasurers, sealed with its company seal, and attested by himself as one of its Assistant
Secretaries.
My commission expires
Witness my hand and official seal, this day of September, 2007.
| Notary Public |
