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DUKE POWER COMPANY
TO
CHEMICAL BANK,
TRUSTEE
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EIGHTIETH SUPPLEMENTAL INDENTURE
DATED AS OF AUGUST 1, 1995
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CREATING AN ISSUE OF FIRST AND REFUNDING
MORTGAGE BONDS, 7 1/2% SERIES B DUE 2025
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SUPPLEMENTAL TO
FIRST AND REFUNDING MORTGAGE
DATED AS OF DECEMBER 1, 1927
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SUPPLEMENTAL INDENTURE, bearing date as of the first day of August, 1995,
made and entered into by and between DUKE POWER COMPANY, a corporation duly
organized and existing under the laws of the State of North Carolina,
hereinafter called the "Company", party of the first part, and CHEMICAL BANK
(successor to Xxxxxx Guaranty Trust Company of New York as Trustee), a
corporation duly organized and existing under the laws of the State of New York,
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, 5 3/8% Series Due 1997" (herein called
"bonds of the 1997 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,
Annual Tender Pollution Control Series 1987 A" (herein called "bonds of the 1987
Pollution Control Series A"), bonds of a series known as the "First and
Refunding Mortgage Bonds, Annual Tender Pollution Control Series 1987 B" (herein
called "bonds of the 1987 Pollution Control Series B"), bonds of a series known
as the "First and Refunding Mortgage Bonds, Annual Tender Pollution Control
Series 1987 C" (herein called "bonds of the 1987 Pollution Control 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 1990 Pollution
2
Control Series"), bonds of a series known as the "First and Refunding Mortgage
Bonds, 8 3/4% Series Due 2021" (herein called "bonds of the 2021 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, 8 3/8% Series B Due
2021" (herein called "bonds of the 2021 Series B"), bonds of a series known as
the "First and Refunding Mortgage Bonds, 8% Series Due 2004" (herein called
"bonds of the 2004 Series"), bonds of a series known as the "First and Refunding
Mortgage Bonds, 8 5/8% Series Due 2022" (herein called "bonds of the 2022
Series"), bonds of a series known as the "First and Refunding Mortgage Bonds, 7%
Series Due 2000" (herein called "bonds of the 2000 Series"), bonds of a series
known as the "First and Refunding Mortgage Bonds, 7% Series B Due 2000" (herein
called "bonds of the 2000 Series B"), bonds of a series known as the "First and
Refunding Mortgage Bonds, 7% Series Due 2005" (herein called "bonds of the 2005
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, 7 3/8% Series Due
2023" (herein called "bonds of the 2023 Series"), 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, 5 7/8% Series Due 2001" (herein called "bonds of the 2001
Series"), 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,
8% Series B Due 1999" (herein
3
called "bonds of the 1999 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 Company 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
Company to the New Jersey Company and the assumption by the Company of the
covenants and conditions of the New Jersey Company in the original indenture and
to enable the Company 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 Company 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 Company, Xxxxxx Guaranty
Trust Company of New York, as Trustee, and Chemical Bank, as successor Trustee;
and
WHEREAS the Company 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, 7 1/2% Series B Due 2025", 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 Company 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 April 1, 1967,
February 1, 1968, February 15, 1987, October 1, 1987, March 1, 1990, May 15,
1990, March 1, 1991, July 1, 1991, December 1, 1991, March 1, 1992, June 1,
1992, July 1, 1992, September 1, 1992, February 1, 1993, March 1, 1993, April 1,
1993, May 1,
4
1993, June 1, 1993, July 1, 1993, August 1, 1993, August 20, 1993, May 1, 1994,
November 1, 1994 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 Company to the Trustee at or before the execution and delivery of
these presents, the receipt whereof is hereby acknowledged, the Company hereby
covenants and agrees with the Trustee and its successors in the trust under the
Indenture as follows:
PART ONE.
BONDS OF THE 7 1/2% SERIES B DUE 2025.
SECTION 1. The Company 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, 7 1/2% Series B Due 2025 (herein called "bonds of the 2025 Series B"),
and the Company hereby establishes, determines and fixes the terms and
provisions of the bonds of the 2025 Series B as hereinafter in this Part One set
forth.
Each bond of the 2025 Series B 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 February 1, 1996,
from the February 1 or August 1, as the case may be, next preceding the date
thereof to which interest has been paid, unless such date of authentication is
prior to February 1, 1996, in which case interest shall be payable from August
1, 1995; provided, however, that interest shall be payable on each bond of the
2025 Series B 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 2025 Series B shall be paid to the person who,
according to the bond register of the Company, is the registered holder of such
bond of the 2025 Series B 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;
5
provided, however, that, if the Company shall default in the payment of the
interest due on any interest payment date on any bond of the 2025 Series B, such
defaulted interest shall be paid to the registered holder of such bond (or any
bond or bonds of the 2025 Series B issued upon transfer, exchange or
substitution thereof) on the date of subsequent payment of such defaulted
interest or, at the election of the Company, to the person in whose name such
bond (or any bond or bonds of the 2025 Series B 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 Company to the holders of all
bonds of the 2025 Series B 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
January 15 or July 15, 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 2025 Series B shall mature as to principal on
August 1, 2025, and shall bear interest at the rate of 7 1/2% per annum, payable
semi-annually on the first day of February and August in each year.
SECTION 3. The bonds of the 2025 Series B 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 sec. 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 2025 Series B.
SECTION 4. The bonds of the 2025 Series B 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 sec. 5.05 of the Indenture) prior to
August 1, 2000. On and after August 1, 2000, the bonds of the 2025 Series B 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 sec.
5.05 of the Indenture) prior to maturity, at the option of the Company, 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
6
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 2025 Series B are also subject to redemption 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 sec. 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 2025 Series B shall be effected as
provided in Article 3 of the Indenture except that, in case a part only of the
bonds of the 2025 Series B 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 Company.
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 2025 Series
B 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 2025 Series B shall be the office or offices or the agency or agencies of
the Company in the Borough of Manhattan, The City of New York, designated from
time to time by the Board of Directors of the Company.
7
SECTION 7. The form of the bonds of the 2025 Series B and the certificate
of the Trustee to be endorsed on the bonds, respectively, shall be substantially
as follows:
[FORM OF BOND OF THE 2025 SERIES B]
[FACE SIDE OF BOND]
DUKE POWER COMPANY
FIRST AND REFUNDING MORTGAGE BOND,
7 1/2% Series B Due 2025
No. $
DUKE POWER COMPANY, a North Carolina corporation (hereinafter called the
"Company"), for value received, hereby promises to pay to or
registered assigns, the principal sum of Dollars on August 1, 2025,
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 Company 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 February
1, 1996, in which case from August 1, 1995, and unless the date hereof is a
January date subsequent to January 15, or a July date subsequent to July 15, in
which case from the next succeeding February 1 or August 1, as the case may be),
at the rate of seven and one-half per cent per annum, in like coin or currency,
semi-annually on February 1 and August 1 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 15th day of January or July 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 Company.
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.
8
IN WITNESS WHEREOF, the Company 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 POWER COMPANY
By: ..........................................
President
Attest:
..............................................
Secretary
[FORM OF TRUSTEE'S CERTIFICATE FOR
BOND OF THE 2025 SERIES B]
This bond is one of the bonds, of the series designated therein, described
in the within-mentioned Indenture.
CHEMICAL BANK, Trustee
By: ..........................................
Authorized Officer
9
[REVERSE SIDE OF BOND]
This bond is one of the bonds of a series, designated specially as First
and Refunding Mortgage Bonds, 7 1/2% Series B Due 2025, of an authorized issue
of bonds of the Company, 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 (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 Company
succeeded to and was substituted for the New Jersey Company), April 1, 1967,
February 1, 1968, February 15, 1987, October 1, 1987, March 1, 1990, May 15,
1990, March 1, 1991, July 1, 1991, December 1, 1991, March 1, 1992, June 1,
1992, July 1, 1992, September 1, 1992, February 1, 1993, March 1, 1993, April 1,
1993, May 1, 1993, June 1, 1993, July 1, 1993, August 1, 1993, August 20, 1993,
May 1, 1994, November 1, 1994 and August 1, 1995, 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 Company and of the holders of the bonds, may be made with the
consent of the Company 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
10
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 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 August 1, 2000. On and after August 1,
2000, 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 Company,
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 August 1:
REDEMPTION
YEAR PRICE
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2000................. 103.355 %
2001................. 103.131
2002................. 102.907
2003................. 102.684
2004................. 102.460
2005................. 102.236
2006................. 102.013
2007................. 101.789
2008................. 101.566
2009................. 101.342
2010................. 101.118
2011................. 100.895
2012................. 100.671
2013................. 100.447
2014................. 100.224
2015................. 100.000
2016................. 100.000
2017................. 100.000
2018................. 100.000
2019................. 100.000
2020................. 100.000
2021................. 100.000
2022................. 100.000
2023................. 100.000
2024................. 100.000
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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 August 1, 1995, 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 August 1:
REDEMPTION
YEAR PRICE
--------------------- ----------
1995................. 100.000 %
1996................. 100.000
1997................. 100.000
1998................. 100.000
1999................. 100.000
2000................. 100.000
2001................. 100.000
2002................. 100.000
2003................. 100.000
2004................. 100.000
2005................. 100.000
2006................. 100.000
2007................. 100.000
2008................. 100.000
2009................. 100.000
2010................. 100.000
2011................. 100.000
2012................. 100.000
2013................. 100.000
2014................. 100.000
2015................. 100.000
2016................. 100.000
2017................. 100.000
2018................. 100.000
2019................. 100.000
2020................. 100.000
2021................. 100.000
2022................. 100.000
2023................. 100.000
2024................. 100.000
Redemption is in every case to be effected at the office or agency of the
Company 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 Company 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
12
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 Company and receive in exchange
herefor the same aggregate 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 Company 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 Company 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 Company 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 2025 Series B are
outstanding, the Company 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 Company 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 2025 Series B" 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.
13
SECTION 2. If at any time (a) bonds of the 2025 Series B are outstanding
and (b) no bonds of the 1997 Series, of the 2021 Series, of the Medium-Term
Notes Series, of the 2021 Series B, of the 2004 Series, of the 2022 Series, of
the 2000 Series, of the 2000 Series B, of the 2005 Series, of the 2003 Series B,
of the 2023 Series, of the 2008 Series, of the 2003 Series C, of the 2004 Series
B, of the 2001 Series, of the 2033 Series, of the 2023 Series B, of the 2025
Series, of the 2024 Series or of the 1999 Series B are outstanding and (c) cash
which shall have been deposited with the Trustee 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
2025 Series B 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 April 1, 1967, March 1,
1991, December 1, 1991, June 1, 1992, July 1, 1992, September 1, 1992, February
1, 1993, May 1, 1993, June 1, 1993, July 1, 1993, August 1, 1993, August 20,
1993, May 1, 1994 and November 1, 1994, in Section 3 of Part Three of the
supplemental indenture dated as of March 1, 1990, in Section 4 of Part Three of
the supplemental indenture dated as of March 1, 1992 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 Company thereunder if at the
time any bonds of the 2025 Series B 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 2025 Series B, the 1997
Series, the 2021 Series, the Medium-Term Notes Series, the 2021 Series B, the
2004 Series, the 2022 Series, the 2000 Series, the 2000 Series B, the 2005
Series, the 2003 Series B, the 2023 Series, the 2008 Series, the 2003 Series C,
the 2004 Series B, the 2001 Series, the 2033 Series, the 2023 Series B, the 2025
Series, the 2024 Series and the 1999 Series B shall have been paid, purchased or
redeemed, the Trustee shall, upon application of the Company, pay to or upon the
order of the Company 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 Company any
bonds which shall theretofore have been deposited with the Trustee pursuant to
the provisions
14
of the Replacement Fund or paid, purchased or redeemed pursuant to the
provisions of the Replacement Fund.
PART THREE.
ADDITIONAL COVENANTS OF THE COMPANY.
SECTION 1. Whether or not the covenants on the part of the Company
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 1997 Series,
the 1987 Pollution Control Series A, the 1987 Pollution Control Series B, the
1987 Pollution Control Series C, the 1990 Pollution Control Series, the 2021
Series, the 2027 City of Greensboro Series, the Medium-Term Notes Series, the
2021 Series B, the 2004 Series, the 2022 Series, the 2000 Series, the 2000
Series B, the 2005 Series, the 2003 Series B, the 2023 Series, the 2008 Series,
the 2003 Series C, the 1993 Pollution Control Series, the 2004 Series B, the
2001 Series, the 2033 Series, the 2023 Series B, the 2025 Series, the 2024
Series or the 1999 Series B and whether or not the bonds of the 1997 Series, the
1987 Pollution Control Series A, the 1987 Pollution Control Series B, the 1987
Pollution Control Series C, the 1990 Pollution Control Series, the 2021 Series,
the 2027 City of Greensboro Series, the Medium-Term Notes Series, the 2021
Series B, the 2004 Series, the 2022 Series, the 2000 Series, the 2000 Series B,
the 2005 Series, the 2003 Series B, the 2023 Series, the 2008 Series, the 2003
Series C, the 1993 Pollution Control Series, the 2004 Series B, the 2001 Series,
the 2033 Series, the 2023 Series B, the 2025 Series, the 2024 Series or the 1999
Series B are outstanding, such covenants on the part of the Company contained in
said Part Three shall continue and remain in full force and effect so long as
any of the bonds of the 2025 Series B are outstanding and to the same extent as
though the words "or so long as any bonds of the 2025 Series B 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
sec. 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
15
indenture dated as of February 1, 1968) is modified with the consent of the
holders of bonds of the 1997 Series, the 1987 Pollution Control Series A, the
1987 Pollution Control Series B, the 1987 Pollution Control Series C, the 1990
Pollution Control Series, the 2021 Series, the 2027 City of Greensboro Series,
the Medium-Term Notes Series, the 2021 Series B, the 2004 Series, the 2022
Series, the 2000 Series, the 2000 Series B, the 2005 Series, the 2003 Series B,
the 2023 Series, the 2008 Series, the 2003 Series C, the 1993 Pollution Control
Series, the 2004 Series B, the 2001 Series, the 2033 Series, the 2023 Series B,
the 2025 Series, the 2024 Series or the 1999 Series B and whether or not bonds
of the 1997 Series, the 1987 Pollution Control Series A, the 1987 Pollution
Control Series B, the 1987 Pollution Control Series C, the 1990 Pollution
Control Series, the 2021 Series, the 2027 City of Greensboro Series, the
Medium-Term Notes Series, the 2021 Series B, the 2004 Series, the 2022 Series,
the 2000 Series, the 2000 Series B, the 2005 Series, the 2003 Series B, the 2023
Series, the 2008 Series, the 2003 Series C, the 1993 Pollution Control Series,
the 2004 Series B, the 2001 Series, the 2033 Series, the 2023 Series B, the 2025
Series, the 2024 Series or the 1999 Series B are outstanding, said sentence
shall continue and remain in full force and effect so long as any bonds of the
2025 Series B 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 2025 Series B are outstanding.
PART FOUR.
MISCELLANEOUS.
SECTION 1. (a) For the purposes of sec. 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 Company 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 2025 Series B. Such covenants and provisions shall remain in force and be
applicable only so long as any bonds of the 2025 Series B shall be outstanding,
and, subject to the provisions of paragraph (2) of subdivision (c) of sec. 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 2025 Series B at the time outstanding and without the consent of the
holders of any other bonds
16
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 Company 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 sec. 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 Company which are set forth or
incorporated in said Part Three shall be for the benefit only of the holders of
the bonds of the 2025 Series B. Such covenants and provisions shall remain in
force and be applicable only so long as any bonds of the 2025 Series B shall be
outstanding, and, subject to the provisions of paragraph (2) of subdivision (c)
of sec. 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 2025 Series B 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 Company
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
17
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.
18
IN WITNESS WHEREOF, Duke Power Company, 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 Chemical 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 Assistant Secretaries, all as of the day and year
first above written.
DUKE POWER COMPANY
By:......................................
XXXXXXX X. XXXXXXX
Senior Vice President
ATTEST:
..............................................
XXXXXX X. XXXXX III
Assistant Secretary
Signed, sealed, executed, acknowledged and
delivered by DUKE POWER COMPANY, in the
presence of:
..............................................
XXXXXX XXX XXXXXXX
..............................................
XXX X. XXXXXXXXXX
CHEMICAL BANK
By:......................................
X. X. XXXXXXXX
Vice President
ATTEST:
..............................................
X. XXXXXXXX
Senior Trust Officer
Signed, sealed, executed, acknowledged and
delivered by CHEMICAL BANK, in the presence
of:
..............................................
X. XXXXX
..............................................
X. XXXXX
00
XXXXX XX XXX XXXX
XXXXXX XX XXX XXXX SS.:
Personally appeared before me X. XXXXX and made oath that she saw X. X.
XXXXXXXX, a Vice President, and X. XXXXXXXX, a Senior Trust Officer,
respectively, of CHEMICAL BANK, sign, attest and affix hereto the corporate seal
of said Chemical Bank, and, as the act and deed of said corporation, deliver the
within written and foregoing deed, and that she, with X. XXXXX, witnessed the
execution thereof.
..............................................
X. XXXXX
Sworn and subscribed before me
this 17th day of August, 1995.
..............................................
XXXXXXXXX XXXXXX
Notary Public, State of New York
No. 01DE 5013759
Qualified in Kings County
Certificate Filed in New York County
Commission Expires July 15, 1997.
STATE OF NEW YORK
COUNTY OF NEW YORK SS.:
I, XXXXXXXXX XXXXXX, a Notary Public in and for the State and County
aforesaid, certify that X. XXXXXXXX personally came before me this day and
acknowledged that he is a Senior Trust Officer of CHEMICAL 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 my hand and official seal, this 17th day of August, 1995.
..............................................
XXXXXXXXX XXXXXX
Notary Public, State of New York
No. 01DE 5013759
Qualified in Kings County
Certificate Filed in New York County
Commission Expires July 15, 1997.
00
XXXXX XX XXXXX XXXXXXXX
XXXXXX XX XXXXXXXXXXX SS.:
Personally appeared before me XXXXXX XXX XXXXXXX and made oath that she saw
XXXXXXX X. XXXXXXX, a Senior Vice President, and XXXXXX X. XXXXX III, an
Assistant Secretary, respectively, of DUKE POWER COMPANY, sign, attest and affix
hereto the corporate seal of said Duke Power Company, and, as the act and deed
of said corporation, deliver the within written and foregoing deed, and that
she, with XXX X. XXXXXXXXXX, witnessed the execution thereof.
..............................................
XXXXXX XXX XXXXXXX
Sworn and subscribed before me
this 18th day of August, 1995.
..............................................
XXXXXX X. XXXXXXX
Notary Public
Union County, N.C.
My Commission expires December 1, 1999.
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG SS.:
I, XXX X. XXXXXXXXXX, 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 POWER COMPANY, 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
Senior Vice Presidents, sealed with its corporate seal, and attested by himself
as one of its Assistant Secretaries.
My commission expires October 3, 1996.
Witness my hand and official seal, this 18th day of August, 1995.
..............................................
XXX X. XXXXXXXXXX
Notary Public
Mecklenburg County, N.C.
