Exhibit 4-F-81
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DUKE ENERGY CORPORATION
TO
THE CHASE MANHATTAN BANK,
Trustee
__________
EIGHTY - SUPPLEMENTAL INDENTURE
Dated as of ,
__________
CREATING AN ISSUE OF FIRST AND REFUNDING
MORTGAGE BONDS, % SERIES DUE
__________
SUPPLEMENTAL TO
FIRST AND REFUNDING MORTGAGE
DATED AS OF DECEMBER 1, 1927
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SUPPLEMENTAL INDENTURE, bearing date as of the day of , , made
and entered into by and between Duke Energy Corporation, formerly known as Duke
Power Company, a corporation duly organized and existing under the laws of the
State of North Carolina, hereinafter called the "Corporation," party of the
first part, and The Chase Manhattan Bank, formerly known as Chemical Bank
(successor to Xxxxxx Guaranty Trust Company of New York, as Trustee), a New York
banking corporation, having its principal place of business in the Borough of
Manhattan, City and State of New York, hereinafter called the "Trustee," as
Trustee, party of the second part.
Whereas Duke Power Company, a New Jersey corporation, hereinafter called
the "New Jersey Company," duly executed and delivered its First and Refunding
Mortgage, dated as of December 1, 1927, to Guaranty Trust Company of New York,
as Trustee, to secure its First and Refunding Mortgage Gold Bonds, to be issued
from time to time in series as provided in said Mortgage, and has from time to
time duly executed and delivered supplemental indentures, including supplemental
indentures dated as of September 1, 1947 and February 1, 1949, to Guaranty Trust
Company of New York (the corporate name of which has been changed to Xxxxxx
Guaranty Trust Company of New York), as Trustee, and a supplemental indenture
dated as of February 1, 1960 to Xxxxxx Guaranty Trust Company of New York, as
Trustee, supplementing and modifying said Mortgage (said Mortgage, as so
supplemented and modified, being hereinafter referred to as the "original
indenture"); and
Whereas bonds of a series known as the "First and Refunding Mortgage Bonds,
2.65% Series Due 1977" (herein called "bonds of the 2.65% Series"), bonds of a
series known as the "First and Refunding Mortgage Bonds, 2 7/8% Series Due 1979"
(herein called "bonds of the 1979 Series"), bonds of a series known as the
"First and Refunding Mortgage Bonds, 6 3/8% Series Due 1998" (herein called
"bonds of the 1998 Series"), bonds of a series known as the "First and Refunding
Mortgage Bonds, Pollution Control Facilities Revenue Refunding Series Due 2014"
(herein called "bonds of the
1990 Pollution Control Series"), bonds of a series known as the "First and
Refunding Mortgage Bonds, City of Greensboro Series Due 2027" (herein called
"bonds of the 2027 City of Greensboro Series") bonds of a series known as the
"First and Refunding Mortgage Bonds, Medium-Term Notes Series" (herein called
"bonds of the Medium-Term Notes Series"), bonds of a series known as the "First
and Refunding Mortgage Bonds, 6 5/8% Series B Due 2003" (herein called "bonds of
the 2003 Series B"), bonds of a series known as the "First and Refunding
Mortgage Bonds,6 3/8% Series Due 2008" (herein called "bonds of the 2008
Series"), bonds of a series known as the "First and Refunding Mortgage Bonds, 5
7/8% Series C Due 2003" (herein called "bonds of the 2003 Series C"), bonds of a
series known as the "First and Refunding Mortgage Bonds, Pollution Control
Facilities Revenue Refunding Series Due 2014" (herein called "bonds of the 1993
Pollution Control Series"), bonds of a series known as the "First and Refunding
Mortgage Bonds, 6 1/4% Series B 2004" (herein called "bonds of the 2004 Series
B"), bonds of a series known as the "First and Refunding Mortgage Bonds, 7%
Series Due 2033" (herein called "bonds of the 2033 Series"), bonds of a series
known as the "First and Refunding Mortgage Bonds, 6 7/8% Series B Due 2023"
(herein called "bonds of the 2023 Series B"), bonds of a series known as the
"First and Refunding Mortgage Bonds, 6 3/4% Series Due 2025" (herein called
"bonds of the 2025 Series"), bonds of a series known as the "First and Refunding
Mortgage Bonds, 7 7/8% Series Due 2024" (herein called "bonds of the 2024
Series") and bonds of a series known as the "First and Refunding Mortgage Bonds,
7 1/2% Series B Due 2025" (herein called "bonds of
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the 2025 Series B") have heretofore been issued and (except for bonds of the
2.65% Series, bonds of the 1979 Series and bonds of the 1998 Series which have
been retired in their entirety) are the only bonds now outstanding under the
original indenture as heretofore supplemented; and
WHEREAS the Corporation has duly executed and delivered a supplemental
indenture, dated as of June 15, 1964, to Xxxxxx Guaranty Trust Company of New
York, as Trustee, for the purpose of evidencing the succession by merger of the
Corporation to the New Jersey Company and the assumption by the Corporation of
the covenants and conditions of the New Jersey Company in the original indenture
and to enable the Corporation to have and exercise the powers and rights of the
New Jersey Company under the original indenture in accordance with the terms
thereof and whereby the Corporation assumed and agreed to pay duly and
punctually the principal of and interest on the bonds issued under the original
indenture in accordance with the provisions of said bonds and the coupons
thereto appertaining and the original indenture, and agreed to perform and
fulfill all the terms, covenants and conditions of the original indenture
binding upon the New Jersey Company; and
WHEREAS Xxxxxx Guaranty Trust Company of New York resigned as Trustee under
the original indenture as heretofore supplemented and Chemical Bank was
appointed successor Trustee, said resignation and appointment having taken
effect on August 30, 1994 pursuant to an Instrument of Resignation, Appointment
and Acceptance dated as of August 30, 1994 among the Corporation, Xxxxxx
Guaranty Trust Company of New York, as Trustee, and Chemical Bank (now The Chase
Manhattan Bank), as successor Trustee; and
WHEREAS the Corporation desires to create under the original indenture, as
heretofore supplemented and as to be supplemented by this supplemental
indenture, a new series of bonds, to be known as its "First and Refunding
Mortgage Bonds, % Series Due , " and to determine the terms and
provisions and the form of the bonds of such series; and
WHEREAS for the purposes hereinabove recited, and pursuant to due corporate
action, the Corporation has duly determined to execute and deliver to the
Trustee a supplemental indenture in the form hereof supplementing the original
indenture (the original indenture, as supplemented by the aforesaid supplemental
indenture dated as of June 15, 1964, by supplemental indentures dated as of
February 1, 1968, March 1, 1990, May 15, 1990, July 1, 1991, February 1, 1993,
March 1, 1993, April 1, 1993, May 1, 1993, July 1, 1993, August 1, 1993, August
20, 1993, May 1, 1994, August 1,
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1995 and as hereby supplemented, being sometimes hereinafter referred to as the
"Indenture"); and
WHEREAS all conditions and requirements necessary to make this supplemental
indenture a valid, legal and binding instrument in accordance with its terms
have been done and performed, and the execution and delivery hereof have been in
all respects duly authorized:
Now, Therefore, This Indenture Witnesseth:
That in consideration of the premises and of the sum of one dollar duly
paid by the Corporation to the Trustee at or before the execution and delivery
of these presents, the receipts whereof is hereby acknowledged, the Corporation
hereby covenants and agrees with the Trustee and its successors in the trust
under the Indenture as follows:
PART ONE.
Bonds of the % Series Due .
Section 1. The Corporation hereby creates a new series of bonds to be
issued under and secured by the Indenture and known as its First and Refunding
Mortgage Bonds, % Series Due (herein called "bonds of the
Series"), and the Corporation hereby establishes, determines and fixes
the terms and provisions of the bonds of the Series as hereinafter in this
Part One set forth.
Each bond of the Series shall be dated the date of its authentication
(except that if any such bond shall be authenticated on any interest payment
date, it shall be dated the following day) and interest shall be payable on the
principal represented thereby commencing , , from the or
, as the case may be, next preceding the date thereof to which
interest has been paid, unless such date of authentication is prior to ,
, in which case interest shall be payable from , ;
provided, however, that interest shall be payable on each bond of the
Series authenticated after the record date (as defined in the next succeeding
paragraph of this Section 1) with respect to any interest payment date and prior
to such interest payment date, only from such interest payment date.
Interest on any bond of the Series shall be paid to the person who,
according to the bond register of the Corporation, is the registered holder of
such bond of the Series at the close of business on the applicable record
date, and such interest payments shall be made by check mailed to such
registered holder at his last address shown on such bond register; provided,
however, that, if the Corporation shall default in the payment of the interest
due on any interest payment date on any bond of the Series, such defaulted
interest shall be
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paid to the registered holder of such bond (or any bond or bonds of the
Series issued upon transfer, exchange or substitution thereof) on the date of
subsequent payment of such defaulted interest or, at the election of the
Corporation, to the person in whose name such bond (or any bond or bonds of the
Series issued upon transfer, exchange or substitution thereof) is
registered on a subsequent record date established by notice given by mail by or
on behalf of the Corporation to the holders of all bonds of the Series
not less than ten (10) days preceding such subsequent record date. The term
"record date" as used in this Section 1 shall mean, with respect to any semi-
annual interest payment date, the close of business on the or , as
the case may be, next preceding such interest payment date or, in the case of a
payment of defaulted interest, the close of business on any subsequent record
date established as provided above.
Section 2. All bonds of the Series shall mature as to principal on
, , and shall bear interest at a rate of % per annum,
payable semi-annually on the day of and in each year.
Section 3. The bonds of the Series shall be fully registered bonds,
without coupons, in denominations of one thousand dollars ($1,000) and any
integral multiple of one thousand dollars ($1,000), all such bonds to be
numbered, and shall be transferable and exchangeable as provided in the form of
bond set forth in this supplemental indenture. The provisions of (S) 1.19 and
any other provision in the Indenture in respect of coupon bonds or reservation
of coupon bond numbers shall be inapplicable to the bonds of the Series.
Section 4. The bonds of the Series are not subject to redemption
(otherwise than through the operation of the Replacement Fund provided in Part
Two of this supplemental indenture or through the application of moneys paid to
the Trustee pursuant to the provisions of (S) 5.05 of the Indenture) prior to
, . On and after , , the bonds of the Series are subject
to redemption (otherwise than through the operation of the Replacement Fund
provided in Part Two of this supplemental indenture or through the application
of moneys paid to the Trustee pursuant to the provisions of (S) 5.05 of the
Indenture) prior to maturity, at the option of the Corporation, as a whole at
any time or in part from time to time, in principal amounts equal to $1,000 or
any multiple thereof, upon prior notice as hereinafter provided, at the
redemption prices specified in the third paragraph of the reverse side of the
form of bond set forth in this supplemental indenture, together with interest
accrued thereon to the date fixed for redemption thereof.
The bonds of the Series are also subject to redemption through the
operation of the Replacement Fund provided in Part Two of this supplemental
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indenture or through the application of moneys paid to the Trustee pursuant to
the provisions of (S) 5.05 of the Indenture, at any time or from time to time
prior to maturity, upon prior notice as hereinafter provided, at the redemption
prices specified in the fourth paragraph of the reverse side of the form of bond
set forth in this supplemental indenture, together with interest accrued thereon
to the date fixed for redemption thereof.
All such redemption of bonds of the Series shall be effected as
provided in Article 3 of the Indenture except that, in case a part only of the
bonds of the Series is to be paid and redeemed, the particular bonds or
part thereof shall be selected by the Trustee in such manner as the Trustee in
its uncontrolled discretion shall determine to be fair and in any case where
several bonds are registered in the same name, the Trustee may treat the
aggregate principal amount so registered as if it were represented by one bond
and except that when bonds are redeemed in part only the notice given to any
particular holder need state only the principal amount of the bonds of that
holder which are to be redeemed and except that notice to the holders of bonds
to be redeemed shall be given by mailing to such holders a notice of such
redemption, first class mail postage prepaid, not later than the thirtieth day,
and not earlier than the sixtieth day, before the date fixed for redemption, at
their last addresses as they shall appear upon the bond register of the
Corporation. Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the holder
receives such notice; and failure duly to give such notice by mail, or any
defect in such notice, to the holder of any bond designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other bond. No publication of notice of such redemption shall
be required.
Section 5. The aggregate principal amount of the bonds of the Series shall
be unlimited.
Section 6. The place or places of payment (as to principal and premium, if
any, and interest), redemption, transfer, exchange and registration of the bonds
of the Series shall be the office or offices or the agency or agencies of the
Corporation in the Borough of Manhattan, The City of New York, designated from
time to time by the Board of Directors of the Corporation.
Section 7. The form of the bonds of the Series and the certificate of
the Trustee to be endorsed on the bonds, respectively, shall be substantially as
follows:
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[FORM OF BOND OF THE SERIES]
[FACE SIDE OF BOND]
DUKE ENERGY CORPORATION
FIRST AND REFUNDING MORTGAGE BOND,
% Series Due
No. $
Duke Energy Corporation, a North Carolina corporation (hereinafter called
the "Corporation"), for value received, hereby promises to pay to or
registered assigns, the principal sum of Dollars on , , in
any coin or currency of the United States of America which at the time of
payment shall be legal tender for the payment of public and private debts, at
the office or agency of the Corporation in the Borough of Manhattan, The City of
New York, and to pay interest thereon at said office or agency from the interest
payment date next preceding the date hereof to which interest on outstanding
bonds of this series has been paid (unless the date hereof is prior to ,
in which case from , , and unless the date hereof is a
date subsequent to , or a date subsequent to ,
in which case from the next succeeding or , as the case
may be), at the rate of per cent per annum, in like coin or currency,
semi-annually on and in each year until the principal hereof
shall become due and payable. Such interest payments shall be made by check
mailed to the person in whose name this bond is registered at the close of
business on the day of or preceding each semi-annual
interest payment date, as the case may be (subject to certain exceptions
provided in the Indenture hereinafter mentioned), at his last address as it
shall appear upon the bond register of the Corporation.
The provisions of this bond are continued on the reverse hereof and such
continued provisions shall for all purposes have the same effect as though fully
set forth in this place.
This bond shall not become or be valid or obligatory for any purpose until
the Trustee shall have signed the form of certificate endorsed hereon.
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In Witness Whereof, the Corporation has caused this instrument to be signed
in its name by its President or one of its Vice Presidents, manually or by
facsimile signature, and its corporate seal to be hereto affixed, or a facsimile
thereof to be hereon engraved, lithographed or printed, and to be attested by
the manual or facsimile signature of its Secretary or one of its Assistant
Secretaries.
Dated: Duke Energy Corporation
By: ............................
President
Attest:
............................
Secretary
[FORM OF TRUSTEE'S CERTIFICATE FOR
BOND OF THE SERIES]
This bond is one of the bonds, of the series designated therein, described
in the within-mentioned Indenture.
The Chase Manhattan Bank,
Trustee
By: ............................
Authorized Officer
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[REVERSE SIDE OF BOND]
This bond is one of the bonds of a series, designated specially as First
and Refunding Mortgage Bonds, % Series Due , of an authorized issue of
bonds of the Corporation, without limit as to aggregate principal amount,
designated generally as First and Refunding Mortgage Bonds, all issued and to be
issued under and equally and ratably secured by an indenture dated as of
December 1, 1927, duly executed by Duke Power Company, a New Jersey corporation
(hereinafter called the "New Jersey Company"), to Guaranty Trust Company of New
York (now Xxxxxx Guaranty Trust Company of New York), as Trustee (The Chase
Manhattan Bank, formerly known as Chemical Bank, successor Trustee), as
supplemented and modified by indentures supplemental thereto, including
supplemental indentures dated as of September 1, 1947, February 1, 1949,
February 1, 1960, June 15, 1964 (under which the Corporation succeeded to and
was substituted for the New Jersey Company), February 1, 1968, March 1, 1990,
May 15, 1990, July 1, 1991, February 1, 1993, March 1, 1993, April 1, 1993, May
1, 1993, July 1, 1993, August 1, 1993, August 20, 1993, May 1, 1994, August 1,
1995 and , , the latter providing for said series (said indenture as so
supplemented and modified being hereinafter referred to as the "Indenture"), to
which Indenture reference is made for a description of the property mortgaged,
the nature and extent of the security, the rights of the holders of the bonds in
respect thereof, the terms and conditions upon which the bonds are secured and
the restrictions subject to which additional bonds secured thereby may be
issued. To the extent permitted by, and as provided in, the Indenture,
modifications or alterations of the Indenture, or of any indenture supplemental
thereto, and of the rights and obligations of the Corporation and of the holders
of the bonds, may be made with the consent of the Corporation by the affirmative
vote, or with the written consent, of the holders of not less than 66 2/3% in
principal amount of the bonds then outstanding, and by the affirmative vote, or
with the written consent, of the holders of not less than 66 2/3% in principal
amount of the bonds of any series then outstanding and affected by such
modification or alteration, in case one or more but less than all of the series
of bonds then outstanding under the Indenture are so affected, evidenced, in
each case, as provided in the Indenture; provided that any supplemental
indenture may be modified in accordance with the provisions contained therein
for its modification; and provided, further, that no such modification or
alteration shall be made which will affect the terms of payment of the principal
of, or interest or premium on, this bond, or the right of any bondholder to
institute suit for the enforcement of any such payment on or after the
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respective due dates expressed in this bond, or reduce the percentage required
for the taking of any such action. Any such affirmative vote of, or written
consent given by, any holder of this bond is binding upon all subsequent holders
hereof as provided in the Indenture.
In case an event of default as defined in the Indenture shall occur, the
principal of all the bonds outstanding thereunder may become or be declared due
and payable, at the time, in the manner and with the effect provided in the
Indenture.
The bonds of this series are not subject to redemption (otherwise than for
the Replacement Fund hereinafter mentioned or upon application of certain moneys
included in the trust estate) prior to , . On and after , ,
the bonds of this series are subject to redemption (otherwise than for the
Replacement Fund hereinafter mentioned or upon application of certain moneys
included in the trust estate) prior to maturity, at the option of the
Corporation, as a whole at any time or in part from time to time, at the
following redemption prices (expressed as percentages of their principal
amounts), in each case together with accrued interest to the date fixed for
redemption:
If redeemed during the twelve-month period beginning :
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
---- ---------- ---- ----------
% %
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The bonds of this series are also subject to redemption for the Replacement
Fund for bonds of this series provided for in the supplemental indenture dated
as of , , providing for this series, or upon application of certain
moneys included in the trust estate, at any time or from time to time prior to
maturity, at the following redemption prices (expressed as percentages of their
principal amounts), in each case together with accrued interest to the date
fixed for redemption:
If redeemed during the twelve-month period beginning :
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
---- ---------- ---- ----------
% %
Redemption is in every case to be effected at the office or agency of the
Corporation in the Borough of Manhattan, The City of New York, upon at least
thirty days' prior notice, given by mail as more fully provided in the
Indenture.
If this bond or any portion hereof ($1,000 or a multiple thereof) is called
for redemption and payment is duly provided, this bond or such portion thereof
shall cease to bear interest from and after the date fixed for such redemption.
This bond is transferable, as provided in the Indenture, by the registered
owner hereof in person or by duly authorized attorney, at the office or agency
of the Corporation in the Borough of Manhattan, The City of New York, upon
surrender and cancellation of this bond, and thereupon a new bond of the same
series and of like aggregate principal amount will be issued to the transferee
in exchange herefor as provided in the Indenture; or the registered owner of
this bond, at his option, may surrender the same for cancellation at said office
or agency of the Corporation and receive in exchange herefor the same aggregate
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principal amount of bonds of the same series of authorized denominations; all
subject to the terms of the Indenture but without payment of any charges other
than a sum sufficient to reimburse the Corporation for any stamp taxes or other
governmental charges incident thereto.
This bond is a corporate obligation only and no recourse whatsoever, either
directly or through the Corporation or any trustee, receiver, assignee or any
other person, shall be had for the payment of the principal of or premium, if
any, or interest on this bond, or for the enforcement of any claim based hereon,
or otherwise in respect hereof or of the Indenture, against any promoter,
subscriber to the capital stock, incorporator, or any past, present or future
stockholder, officer or director of the Corporation as such, or of any successor
or predecessor corporation, whether by virtue of any constitutional provision,
statute or rule of law, or by the enforcement of any assessment, penalty,
subscription or otherwise, any and all such liability of promoters, subscribers,
incorporators, stockholders, officers and directors being waived and released by
each successive holder hereof by the acceptance of this bond, and as a part of
the consideration for the issue hereof, and being likewise waived and released
by the terms of the Indenture.
[END OF BOND FORM]
PART TWO.
Replacement Fund.
Section 1. So long as any of the bonds of the Series are outstanding,
the Corporation will continue to maintain the Replacement Fund set forth in,
and in accordance with the applicable terms and conditions now contained in,
Part Two of the supplemental indenture dated as of February 1, 1949, and the
covenants on the part of the Corporation contained in such Part Two shall
continue and remain in full force and effect, whether or not bonds of the 1979
Series are outstanding and to the same extent as though the words "or any bonds
of the Series" were inserted after the word "Series" appearing in the
second line of Section 1 and the second line of Section 4 of said Part Two of
said supplemental indenture dated as of February 1, 1949.
Section 2. If at any time (a) bonds of the Series are outstanding and (b)
no bonds of the Medium-Term Notes Series, of the 2003 Series B, of the 2008
Series, of the 2003 Series C, of the 2004 Series B, of the 2033 Series, of the
2023 Series B, of the 2025 Series, of the 2024 Series or of the 2025 Series B
are outstanding and (c) cash which shall have been deposited with the Trustee
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pursuant to such Replacement Fund shall not within five years from the date of
deposit thereof have been paid out, or used or set aside by the Trustee for the
payment, purchase or redemption of bonds, pursuant to such Replacement Fund,
such cash shall, if in excess of fifty thousand dollars ($50,000), be applied to
the redemption of bonds of the Series in an aggregate principal amount
sufficient to exhaust as nearly as possible the full amount of such cash.
Anything in Section 5 of Part Two of the aforesaid supplemental indenture dated
as of February 1, 1949, in Section 3 of Part Two of the supplemental indentures
dated as of February 1, 1993, May 1, 1993, July 1, 1993, August 1, 1993, August
20, 1993, May 1, 1994 and August 1, 1995, in Section 3 of Part Three of the
supplemental indenture dated as of March 1, 1990 and in Section 5 of Part Four
of the supplemental indenture dated as of March 1, 1993 to the contrary
notwithstanding, no cash shall be paid over to the Corporation thereunder if at
the time any bonds of the Series are then outstanding, and such cash shall in
such event be applied as in this Part Two set forth.
Section 3. Whenever all of the bonds of the Series, the Medium-Term Notes
Series, the 2003 Series B, the 2008 Series, the 2003 Series C, the 2004 Series
B, the 2033 Series, the 2023 Series B, the 2025 Series, the 2024 Series and the
2025 Series B shall have been paid, purchased or redeemed, the Trustee shall,
upon application of the Corporation, pay to or upon the order of the Corporation
all cash theretofore deposited with the Trustee pursuant to the provisions of
the Replacement Fund and not previously disposed of pursuant to the provisions
of the Replacement Fund, and shall deliver to the Corporation any bonds which
shall theretofore have been deposited with the Trustee pursuant to the
provisions of the Replacement Fund or paid, purchased or redeemed pursuant to
the provisions of the Replacement Fund.
PART THREE.
Additional Covenants of the Corporation.
Section 1. Whether or not the covenants on the part of the Corporation
contained in Part Three of the supplemental indenture dated as of February 1,
1949 are modified with the consent of the holders of bonds of the 1990 Pollution
Control Series,
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the 2027 City of Greensboro Series, the Medium-Term Notes Series, the 2003
Series B, the 2008 Series, the 2003 Series C, the 1993 Pollution Control Series,
the 2004 Series B, the 2033 Series, the 2023 Series B, the 2025 Series, the 2024
Series or the 2025 Series B and whether or not the bonds of the 1990 Pollution
Control Series, the 2027 City of Greensboro Series, the Medium-Term Notes
Series, the 2003 Series B, the 2008 Series, the 2003 Series C, the 1993
Pollution Control Series, the 2004 Series B, the 2033 Series, the 2023 Series B,
the 2025 Series, the 2024 Series or the 2025 Series B are outstanding, such
covenants on the part of the Corporation contained in said Part Three shall
continue and remain in full force and effect so long as any of the bonds of the
Series are outstanding and to the same extent as though the words "or so long as
any bonds of the Series are outstanding" were inserted after the words "so long
as any of the bonds of the 1979 Series or any bonds of the 2.65% Series are
outstanding" wherever such words appear in said Part Three of the supplemental
indenture dated as of February 1, 1949.
Section 2. Whether or not the second sentence of paragraph (a) of (S) 2.08
of the original indenture (making certain provisions for the definition of the
term "net amount" applicable while bonds of the 2.65% Series were outstanding
and which was originally set forth in Section 4 of Article One of the
supplemental indenture dated as of September 1, 1947 and which is corrected and
clarified by Section 2 of Part Four of the supplemental indenture dated as of
February 1, 1968) is modified with the consent of the holders of bonds of the
1990 Pollution Control Series, the 2027 City of Greensboro Series, the Medium-
Term Notes Series, the 2003 Series B, the 2008 Series, the 2003 Series C, the
1993 Pollution Control Series, the 2004 Series B, the 2033 Series, the 2023
Series B, the 2025 Series, the 2024 Series or the 2025 Series B and whether or
not bonds of the 1990 Pollution Control Series, the 2027 City of Greensboro
Series, the Medium-Term Notes Series, the 2003
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Series B, the 2008 Series, the 2003 Series C, the 1993 Pollution Control Series,
the 2004 Series B, the 2033 Series, the 2023 Series B, the 2025
Series, the 2024 Series or the 2025 Series B are outstanding, said sentence
shall continue and remain in full force and effect so long as any bonds of the
Series are outstanding, and with the same force and effect as though
said sentence had stated that such provisions were to be applicable so long as
any of the bonds of the Series are outstanding.
PART FOUR.
Miscellaneous.
Section 1. (a) For the purposes of (S) 2.10 of the Indenture and for the
purposes of any modification of the provisions of the Replacement Fund referred
to in Part Two of this supplemental indenture, the covenants and provisions on
the part of the Corporation which are set forth or incorporated in Part Two of
this supplemental indenture shall be for the benefit only of the holders of the
bonds of the Series. Such covenants and provisions shall remain in force
and be applicable only so long as any bonds of the Series shall be
outstanding, and, subject to the provisions of paragraph (2) of subdivision (c)
of (S) 10.01 of the Indenture, any such covenants and provisions may be modified
with the consent, in writing or by vote at a bondholders' meeting, of the
holders of sixty-six and two-thirds per cent (66 2/3%) of the principal amount
of the bonds of the Series at the time outstanding and without the consent
of the holders of any other bonds then outstanding under the Indenture; provided
that no such consent shall be effective to waive any past default under such
covenants and provisions, and its consequences, unless the consent of the
holders of at least a majority in principal amount of all bonds then outstanding
under the Indenture is obtained. Such covenants shall be deemed to be additional
covenants and none of them shall affect or derogate from, or relieve the
Corporation from, its obligation to comply with any of the other covenants,
conditions, requirements or provisions of the Indenture or any other
supplemental indenture.
(b) For the purposes of (S) 2.10 of the Indenture and for the purposes of
any modification of the provisions of Part Three of this supplemental indenture,
the covenants and provisions on the part of the Corporation which are set forth
or incorporated in said Part Three shall be for the benefit only of the holders
of the bonds of the Series. Such covenants and provisions shall remain in
force and be applicable only so long as any bonds of the Series shall be
outstanding, and, subject to the provisions of paragraph (2) of subdivision (c)
of (S) 10.01 of the Indenture, any such covenants and provisions may be
15
modified with the consent, in writing or by vote at a bondholders' meeting, of
the holders of sixty-six and two-thirds per cent (66 2/3%) of the principal
amount of the bonds of the Series at the time outstanding and without the
consent of the holders of any other bonds then outstanding under the Indenture;
provided that no such consent shall be effective to waive any past default under
such covenants and provisions, and its consequences, unless the consent of the
holders of at least a majority in principal amount of all bonds then outstanding
under the Indenture is obtained. Such covenants shall be deemed to be additional
covenants and none of them shall affect or derogate from, or relieve the
Corporation from, its obligation to comply with any of the other covenants,
conditions, requirements or provisions of the Indenture or any other
supplemental indenture.
Section 2. All terms contained in this supplemental indenture shall,
except as specifically provided herein or except as the context may otherwise
require, have the meanings given to such terms in the Indenture.
Section 3. In case any one or more of the provisions contained in this
supplemental indenture should be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision contained in this supplemental indenture, and, to the extent,
but only to the extent, that such provision is invalid, illegal or
unenforceable, this supplemental indenture shall be construed as if such
provision had never been contained herein.
Section 4. The Trustee hereby accepts the trusts herein declared and
provided upon the terms and conditions in the Indenture set forth.
Section 5. This supplemental indenture may be executed in several
counterparts, each of which shall be an original, and all collectively but one
instrument.
16
In Witness Whereof, Duke Energy Corporation, the party of the first part
hereto, has caused this supplemental indenture to be signed in its name by one
of its Vice Presidents and its corporate seal to be hereunto affixed, and the
same to be attested by one of its Assistant Secretaries, and The Chase Manhattan
Bank, the party of the second part hereto, in token of its acceptance of the
trust hereby created, has caused this supplemental indenture to be signed in its
name by one of its Vice Presidents and its corporate seal to be hereunto
affixed, and the same to be attested by one of its Senior Trust Officers, all as
of the day and year first above written.
Duke Energy Corporation
By: ........................
Vice President
Attest:
..........................................
Assistant Secretary
Signed, sealed, executed, acknowledged
and delivered by Duke Energy Corporation,
in the presence of:
..........................................
..........................................
The Chase Manhattan Bank
By: ........................
Vice President
Attest:
..........................................
Senior Trust Officer
Signed, sealed, executed, acknowledged and
delivered by The Chase Manhattan Bank, in
the presence of:
..........................................
..........................................
00
Xxxxx xx Xxx Xxxx )
) ss.:
County of New York )
Personally appeared before me and made oath that she saw
, a Vice President, and , a Senior Trust Officer,
respectively, of The Chase Manhattan Bank, sign, attest and affix hereto
the corporate seal of said The Chase Manhattan Bank, and, as the act and deed of
said corporation, deliver the within written and foregoing deed, and that she,
with , witnessed the execution thereof.
........................................
Sworn and subscribed before me
this day of , .
.....................................
Notary Public, State of New York
No.
Qualified in County
Certificate Filed in New York County
Commission Expires , .
State of New York )
) ss.:
County of New York )
I, , a Notary Public in and for the State and County aforesaid,
certify that personally came before me this day and acknowledged
that he is a Senior Trust Officer of The Chase Manhattan Bank, a New York
corporation, 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 Senior Trust Officers.
Witness may hand and official seal, this day of , .
.........................................
Notary Public, State of New York
No.
Qualified in County
Certificate Filed in New York County
Commission Expires , .
18
State of North Carolina )
ss.:
County of Mecklenburg )
Personally appeared before me and made oath that she saw
, a Vice President, and , an Assistant Secretary,
respectively, of Duke Energy Corporation, sign, attest and affix hereto the
corporate seal of said Duke Energy Corporation, and, as the act and deed of said
corporation, deliver the within written and foregoing deed, and that she, with
, witnessed the execution thereof.
.....................................
Sworn and subscribed before me
this day of , .
..............................................
Notary Public
County, N.C.
My Commission expires , .
State of North Carolina )
ss.:
County of Mecklenburg )
I, , a Notary Public in and for the State and County
aforesaid, certify that personally came before me this day
and acknowledged that he is an Assistant Secretary of Duke Energy Corporation, a
North Carolina corporation, 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 Assistant Secretaries.
My commission expires , .
Witness my hand and official seal, this day of , .
..............................
Notary Public
County, N.C.
19
