EXHIBIT 4.1
Execution Copy
DUKE
ENERGY CAROLINAS, LLC
TO
THE
BANK OF NEW YORK TRUST COMPANY, N.A.,
Trustee
EIGHTY-SEVENTH SUPPLEMENTAL INDENTURE
Dated
as of April 14, 2008
CREATING TWO SERIES OF FIRST AND REFUNDING
MORTGAGE BONDS
$300,000,000 FIRST AND REFUNDING MORTGAGE BONDS, 5.10% SERIES B DUE
2018
$600,000,000 FIRST AND REFUNDING MORTGAGE BONDS, 6.05% SERIES B DUE
2038
SUPPLEMENTAL TO
FIRST AND REFUNDING MORTGAGE
DATED AS OF DECEMBER 1, 1927
SUPPLEMENTAL INDENTURE, bearing date
as of the 14th day of April, 2008, made and entered into by and
between Duke Energy Carolinas, LLC, a limited liability company
duly organized and existing under the laws of the State of North
Carolina, hereinafter called the “Company,” party of
the first part, and The Bank of New York Trust Company, N.A., a
national banking association, having a corporate trust office at
100 Ashford Center North, Suite 520, Atlanta, Georgia 30338,
hereinafter called the “Trustee,” as Trustee, party of
the second part. The Trustee is the successor to JPMorgan Chase
Bank, N.A. (formerly known as The Chase Manhattan Bank, formerly
known as Chemical Bank (successor to Morgan Guaranty Trust Company
of New York)), as trustee.
WHEREAS the Company’s
predecessor is Duke Energy Corporation (formerly known as Duke
Power Company), a corporation organized under the laws of the State
of North Carolina, which converted its form of organization on
April 3, 2006 from a North Carolina corporation to a North
Carolina limited liability company named “Duke Power Company
LLC,” which changed its name to Duke Energy Carolinas, LLC on
October 1, 2006; and
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 Morgan Guaranty Trust Company of New
York), as Trustee, and a supplemental indenture dated as of
February 1, 1960 to Morgan 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%
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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”), bonds of a series known as the “First and
Refunding Mortgage Bonds, 7 1 / 2 % Series B Due 2025” (herein
called “bonds of the 2025 Series B”), bonds of a
series known as the “First and Refunding Mortgage Bonds,
7 1 / 2 % Series Due 1999” (herein
called “bonds of the 1999 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,
6.625% Series due 2003” (herein called “bonds of the
2003 Series”), bonds of a series known as the “First
and Refunding Mortgage Bonds, 9 5/8% Series due 2020” (herein
called “bonds of the 2020 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 “First and
Refunding Mortgage Bonds, 7% Series due 2005” (herein called
“bonds of the 2005 Series”), bonds of a series known as
“First and Refunding Mortgage Bonds, 3.75% Series A due
2008” (herein called “bonds of the 3.75%
Series A”), bonds of series known as “First and
Refunding Mortgage Bonds, 3.75% Series B due 2008”
(herein called “bonds of the 3.75% Series B,” and
together with the bonds of the 3.75% Series A, the
“bonds of the 3.75% Series”), bonds of a series known
as “First and Refunding Mortgage Bonds, 7 3/8%
Series Due 2023” (herein called “bonds of the 7
3/8% Series”), bonds of series known as “First and
Refunding Mortgage Bonds, 4 1 / 2 % Series Due 2010” (herein
called “bonds of the 4 1 / 2 % Series”), bonds of series known
as “First and Refunding Mortgage Bonds, 5.30% Series due
2015” (herein called “bonds of the 5.30%
Series”), bonds of series known as “First and Refunding
Mortgage Bonds, 5.25% Series due 2018” (herein called
“bonds of the 5.25% Series”), bonds of series known as
“First and Refunding Mortgage Bonds, 6.00% Series due
2038” (herein called “bonds of the 6.00%
Series”), bonds of series known as “First and Refunding
Mortgage Bonds, 2007A Pledge Series due 2040” (herein called
“bonds of the 2007A Pledge Series”), bonds of series
known as “First and Refunding Mortgage Bonds, 2007B Pledge
Series due 2040” (herein called “bonds of the 2007B
Pledge Series”) and such other bonds that have been issued
have heretofore been issued and (except for bonds of the 2.65%
Series, bonds of the 1979 Series, bonds of the 1998 Series, bonds
of the 1999 Series, bonds of the 2000 Series, bonds of the 2000
Series B, bonds of the 2003 Series, bonds of the 2003
Series B, bonds of the 2003 Series C, bonds of the 2020
Series, bonds of the 2021 Series, bonds of the 2005 Series, bonds
of the 2025 Series B, bonds of the 7 3/8% Series and other
such bonds which have been redeemed or 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 Morgan 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
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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 Morgan 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, Morgan Guaranty Trust Company of New York, as Trustee,
and Chemical Bank (now known as JPMorgan Chase Bank); and
WHEREAS JPMorgan Chase Bank, N.A.
resigned as Trustee and The Bank of New York Trust Company, N.A.
was appointed successor Trustee, said resignation and appointment
having taken effect on September 24, 2007 pursuant to an
Instrument of Resignation, Appointment and Acceptance dated as of
September 24, 2007 among the Company, JPMorgan Chase Bank,
N.A., as Trustee, and The Bank of New York Trust Company, N.A., 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, two new series of
bonds, to be known as its “First and Refunding Mortgage
Bonds, 5.10% Series B due 2018” and its “First and
Refunding Mortgage Bonds, 6.05% Series B due 2038”, and
to determine the terms and provisions and the form of the bonds of
each such series; and
WHEREAS for the purposes hereinabove
recited, and pursuant to due limited liability company 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 February 1, 1968,
March 1, 1990, May 15, 1990, July 1, 1991,
March 1, 1993, April 1, 1993, May 1, 1993,
July 1, 1993, August 1, 1993, August 20, 1993,
May 1, 1994, February 25, 2003, March 21, 2003,
September 23, 2003, March 20, 2006, January 10,
2008, February 11, 2008 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:
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PART ONE.
BONDS OF THE 2018 SERIES B AND BONDS OF THE 2038 SERIES
B
SECTION 1. BONDS OF THE 2018
SERIES B
SECTION 1.1 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, 5.10% Series B due 2018
(herein called “bonds of the 2018 Series B”) and
the Company hereby establishes, determines and fixes the terms and
provisions of the bonds of the 2018 Series B as hereinafter in
this Part One set forth.
Each bond of the 2018 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 October 15, 2008,
from the April 15 or October 15, as the case may be, next
preceding the date thereof to which interest has been paid, unless
such date of authentication is prior to October 15, 2008, in
which case interest shall be payable from April 14, 2008;
provided , however , that interest shall be payable
on each bond of the 2018 Series B authenticated after the
record date (as defined in the next succeeding paragraph of this
Section 1.1) 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 2018
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 2018 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 or, at the option of the Company, by wire
transfer at such place and to such account at a banking institution
in the United States as may be designated in writing to the Trustee
at least sixteen (16) days prior to the date of payment by the
Person entitled thereto ( provided , that if the bonds of
the 2018 Series B are represented by Global Securities held by
the Depositary, payment may be made pursuant to the procedures of
the Depositary); 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 2018 Series, such
defaulted interest shall be paid to the registered holder of such
bond (or any bond or bonds of the 2018 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 2018 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 2018 Series B not less than
ten (10) days preceding such subsequent record date. The term
“record date” as used in this Section 1.1 shall
mean, with respect to any semi-annual interest payment date, the
close of business on the April 1 or October 1, whether or not
a business day, 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 1.2 All bonds of the 2018 Series B shall mature
as to principal on April 15, 2018 and shall bear interest at a
rate of 5.10% per annum, payable semi-annually on the
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fifteenth day of April and October in each year, commencing on the
fifteenth day of October, 2008.
SECTION 1.3 The bonds of the 2018 Series B shall be
fully registered bonds, without coupons, in denominations of two
thousand dollars ($2,000) and integral multiples of one thousand
dollars ($1,000) in excess thereof, all such bonds to be numbered,
and shall be transferable and exchangeable as provided in the form
of bond set forth as Exhibit A to this supplemental indenture.
The provisions of §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 2018
Series.
SECTION 1.4 The bonds of the 2018 Series B may be
redeemed at the option of the Company, in whole or in part at any
time and from time to time, at a redemption price equal to the
greater of (1) 100% of the principal amount of the bonds of
the 2018 Series B to be redeemed and (2) the sum of the
present values of the remaining scheduled payments of principal and
interest on such bonds of the 2018 Series B (exclusive of
interest accrued to the redemption date) discounted to the
redemption date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate plus 30
basis points, plus, in either case, accrued and unpaid interest on
the principal amount being redeemed to such redemption date. The
Company shall notify the Trustee of the redemption price with
respect to any redemption pursuant to this paragraph promptly after
the calculation thereof. The Trustee shall not be responsible for
calculating said redemption price.
The bonds of the 2018 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 §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
as Exhibit A to this supplemental indenture, together with
interest accrued thereon to the date fixed for redemption
thereof.
All such redemptions of bonds of the
2018 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 2018 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 is 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
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proceedings for the redemption of any other bond. No publication of
notice of such redemption shall be required.
SECTION 1.5 The limit upon the aggregate principal amount of
the bonds of the 2018 Series B which may be authenticated and
delivered pursuant to this Eighty-Seventh Supplemental Indenture
shall be $300,000,000.
SECTION 1.6 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 2018 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 (
provided , that if the bonds of the 2018 Series B are
represented by Global Securities held by or on behalf of the
Depositary, the procedures of the Depositary may be followed for
any action under this Section 1.6 of Part One).
SECTION 1.7 The form of the bonds of the 2018 Series B
and the certificate of the Trustee to be endorsed on such bonds,
respectively, shall be in substantially the form set forth in
Exhibit A hereto.
SECTION 2. BONDS OF THE 2038
SERIES B
SECTION 2.1 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, 6.05% Series B due 2038
(herein called “bonds of the 2038 Series B”, and
together with the bonds of the 2018 Series B, the
“Bonds”) and the Company hereby establishes, determines
and fixes the terms and provisions of the bonds of the 2038
Series B as hereinafter in this Part One set forth.
Each bond of the 2038 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 October 15, 2008,
from the April 15 or October 15, as the case may be, next
preceding the date thereof to which interest has been paid, unless
such date of authentication is prior to October 15, 2008, in
which case interest shall be payable from April 14, 2008;
provided , however , that interest shall be payable
on each bond of the 2038 Series B authenticated after the
record date (as defined in the next succeeding paragraph of this
Section 2.1) 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 2038
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 2038 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 or, at the option of the Company, by wire
transfer at such place and to such account at a banking institution
in the United States as may be designated in writing to the Trustee
at least sixteen (16) days prior to the date of payment by the
Person entitled thereto ( provided , that if the bonds of
the 2038 Series B are represented by Global Securities held by
the Depositary, payment may be made pursuant to the procedures of
the Depositary); provided , however , that, if the
Company
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shall
default in the payment of the interest due on any interest payment
date on any bond of the 2038 Series B, such defaulted interest
shall be paid to the registered holder of such bond (or any bond or
bonds of the 2038 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 2038
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 2038 Series B not less than ten
(10) days preceding such subsequent record date. The term
“record date” as used in this Section 2.1 shall
mean, with respect to any semi-annual interest payment date, the
close of business on the April 1 or October 1, whether or not
a business day, 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 2.2 All bonds of the 2038 Series B shall mature
as to principal on April 15, 2038 and shall bear interest at a
rate of 6.05% per annum, payable semi-annually on the fifteenth day
of April and October in each year, commencing on the fifteenth day
of October, 2008.
SECTION 2.3 The bonds of the 2038 Series B shall be
fully registered bonds, without coupons, in denominations of two
thousand dollars ($2,000) and integral multiples of one thousand
dollars ($1,000) in excess thereof, all such bonds to be numbered,
and shall be transferable and exchangeable as provided in the form
of bond set forth as Exhibit B to this supplemental indenture.
The provisions of §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 2038
Series B.
SECTION 2.4 The bonds of the 2038 Series B may be
redeemed at the option of the Company, in whole or in part at any
time and from time to time, at a redemption price equal to the
greater of (1) 100% of the principal amount of the bonds of
the 2038 Series B to be redeemed and (2) the sum of the
present values of the remaining scheduled payments of principal and
interest on such bonds of the 2038 Series B (exclusive of
interest accrued to the redemption date) discounted to the
redemption date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate plus 35
basis points, plus, in either case, accrued and unpaid interest on
the principal amount being redeemed to such redemption date. The
Company shall notify the Trustee of the redemption price with
respect to any redemption pursuant to this paragraph promptly after
the calculation thereof. The Trustee shall not be responsible for
calculating said redemption price.
The bonds of the 2038 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 §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
as Exhibit B to this supplemental indenture, together with
interest accrued thereon to the date fixed for redemption
thereof.
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All such redemptions of bonds of the
2038 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 2038 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 is 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 2.5 The limit upon the aggregate principal amount of
the bonds of the 2038 Series B which may be authenticated and
delivered pursuant to this Eighty-Seventh Supplemental Indenture
shall be $600,000,000.
SECTION 2.6 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 2038 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 (
provided , that if the bonds of the 2038 Series B are
represented by Global Securities held by or on behalf of the
Depositary, the procedures of the Depositary may be followed for
any action under this Section 2.6 of Part One).
SECTION 2.7 The form of the bonds of the 2038 Series B
and the certificate of the Trustee to be endorsed on such bonds,
respectively, shall be in substantially the form set forth in
Exhibit B hereto.
PART TWO.
REPLACEMENT FUND.
SECTION 1. So long as any of
the Bonds 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 2018
Series B or the 2038 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.
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SECTION 2. If at any time
(a) any of the Bonds are outstanding and (b) no bonds of
the Medium-Term Notes Series, of the 2008 Series, of the 2003
Series C, of the 2004 Series B, of the 3.75% Series, of
the 4 1 /
2 % Series, of the 5.30%
Series, of the 2033 Series, of the 2023 Series B, of the 2025
Series, of the 2024 Series, of the 5.25% Series or of the 6.00%
Series 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 2018 Series B and
the 2038 Series B on a pro rata basis as between such 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 May 1, 1993, July 1,
1993, August 1, 1993, August 20, 1993, May 1, 1994,
February 25, 2003, March 21, 2003 and September 23,
2003, 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 Company thereunder if at the time any bonds of
the 2018 Series B or the 2038 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, the bonds of the Medium-Term Notes Series, the 2003
Series B, the 2008 Series, the 2003 Series C, the 2004
Series B, the 3.75% Series, the 4 1 / 2 % Series, the 5.30% Series, the 2033
Series, the 2025 Series, the 2024 Series, the 5.25% Series, the
6.00% Series, the 2007A Pledge Series and the 2007B Pledge Series
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 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 1990
Pollution Control Series, the 2027 City of Greensboro Series, the
Medium-Term Notes Series, 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,
the 3.75% Series, the 4 1 / 2 % Series, the 5.30% Series, the 5.25%
Series, the 6.00% Series, the 2007A Pledge Series or the 2007B
Pledge Series and whether or not the bonds of the 1990 Pollution
Control Series, the 2027 City of Greensboro Series, the Medium-Term
Notes Series, 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, the 3.75%
Series, the 4 1 /
2 % Series, the 5.30% Series,
the 5.25% Series, the 6.00% Series, the 2007A Pledge Series
10
or the
2007B Pledge Series 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 are
outstanding and to the same extent as though the words “or so
long as any bonds of the 2018 Series B or the 2038
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 §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
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