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INDENTURE SUPPLEMENTAL
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TO
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MORTGAGE AND DEED OF TRUST
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(Dated January 15, 1937)
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Executed By
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ATLANTIC CITY ELECTRIC COMPANY
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TO
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THE BANK OF NEW YORK,
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Trustee.
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_____________________________________
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Dated as of April 1, 2004
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This instrument was prepared by Randall V.
Griffin
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___________________________________________________________________________________________
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TABLE OF CONTENTS*
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Page
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PARTIES
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1
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RECITALS
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1
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Execution of Mortgage
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1
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Execution of Supplemental
Indentures
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1
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Acquisition of property rights
and property
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1
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No Default under Original
Indenture
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2
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Provision for issuance of bonds
in one or more series
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2
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Right to execute supplemental
indenture
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2
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Issue of other series of
bonds
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2
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Execution of Senior Note
Indenture
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2
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Issue of Senior Notes of 2034
Series
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2
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Issue of bonds pursuant to
Article Thirteen of the Senior Note Indenture
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2
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Issue of collateral bonds of the
New Series
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2
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Form of collateral bond of the
New Series
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2
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Trustee's Authentication
Certificate
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5
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Supplemental Indenture
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5
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Compliance with legal
requirements
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5
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GRANT
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6
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DESCRIPTION OF
PROPERTY
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6
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APPURTENANCES, ETC.
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6
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HABENDUM
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7
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ENCUMBRANCES
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7
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TRUST
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7
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SEC. 1.
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Creation of Bonds of the New
Series
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7
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Date of Maturity
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7
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Interest Rate
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7
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Redemption
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8
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SEC. 2.
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Issuance of Bonds of the New
Series
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9
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SEC. 3.
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Approval of Supplemental
Indenture by Board of Public Utilities,
State
of New Jersey not to be construed as approval of other
acts
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9
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SEC. 4.
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Supplemental Indenture and
Original Indenture to be construed as
one
instrument
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9
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Limitation on rights of
others
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9
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Trustee assumes no responsibility
for correctness of recitals of fact
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9
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Execution in
counterparts
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9
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TESTIMONIUM
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10
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SIGNATURES AND SEALS
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10
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ACKNOWLEDGEMENTS
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12
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*The Table of Contents shall not be deemed to be
any part of the Indenture Supplemental to Mortgage and Deed of
Trust.
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___________________________________________________________________________________________
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SUPPLEMENTAL
INDENTURE, dated as of April 1, 2004 for convenience of reference,
and effective from the time of execution and delivery hereof, made
and entered into by and between ATLANTIC CITY ELECTRIC COMPANY, a
corporation of the State of New Jersey (hereinafter sometimes
called the "Company"), party of the first part, and THE BANK OF NEW
YORK (formerly Irving Trust Company), a corporation of the State of
New York, as Trustee (hereinafter sometimes called the "Trustee"),
party of the second part.
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WHEREAS,
the Company has heretofore executed and delivered to the Trustee
its Mortgage and Deed of Trust, dated January 15, 1937
(hereinafter referred to as the "Mortgage"), for the security of
all bonds of the Company outstanding thereunder, and by said
Mortgage conveyed to the Trustee, upon certain trusts, terms and
conditions, and with and subject to certain provisos and covenants
therein contained, all and singular the property, rights and
franchises which the Company then owned or should thereafter
acquire, excepting any property expressly excepted by the terms of
the Mortgage; and
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WHEREAS,
the Company has heretofore executed and delivered to the Trustee an
Indenture Supplemental to Mortgage and Deed of Trust, dated as of
June 1, 1949, an Indenture Supplemental to Mortgage and Deed
of Trust, dated as of July 1, 1950, an Indenture Supplemental
to Mortgage and Deed of Trust, dated as of November 1, 1950,
an Indenture Supplemental to Mortgage and Deed of Trust, dated as
of March 1, 1952, an Indenture Supplemental to Mortgage and
Deed of Trust, dated as of January 1, 1953, an Indenture
Supplemental to Mortgage and Deed of Trust, dated as of
March 1, 1954, an Indenture Supplemental to Mortgage and Deed
of Trust, dated as of March 1, 1955, an Indenture Supplemental
to Mortgage and Deed of Trust, dated as of January 1, 1957, an
Indenture Supplemental to Mortgage and Deed of Trust, dated as of
April 1, 1958, an Indenture Supplemental to Mortgage and Deed
of Trust, dated as of April 1, 1959, an Indenture Supplemental
to Mortgage and Deed of Trust, dated as of March 1, 1961, an
Indenture Supplemental to Mortgage and Deed of Trust, dated as of
July 1, 1962, an Indenture Supplemental to Mortgage and Deed
of Trust, dated as of March 1, 1963, an Indenture Supplemental
to Mortgage and Deed of Trust, dated as of February 1, 1966,
an Indenture Supplemental to Mortgage and Deed of Trust, dated as
of April 1, 1970, an Indenture Supplemental to Mortgage and
Deed of Trust, dated as of September 1, 1970, an Indenture
Supplemental to Mortgage and Deed of Trust, dated as of May 1,
1971, an Indenture Supplemental to Mortgage and Deed of Trust,
dated as of April 1, 1972, an Indenture Supplemental to
Mortgage and Deed of Trust, dated as of June 1, 1973, an
Indenture Supplemental to Mortgage and Deed of Trust, dated as of
January 1, 1975, an Indenture Supplemental to Mortgage and
Deed of Trust, dated as of May 1, 1975, an Indenture
Supplemental to Mortgage and Deed of Trust, dated as of
December 1, 1976, an Indenture Supplemental to Mortgage and
Deed of Trust, dated as of January 1, 1980, an Indenture
Supplemental to Mortgage and Deed of Trust, dated as of May 1,
1981, an Indenture Supplemental to Mortgage and Deed of Trust,
dated as of November 1, 1983, an Indenture Supplemental to
Mortgage and Deed of Trust, dated as of April 15, 1984, an
Indenture Supplemental to Mortgage and Deed of Trust, dated as of
July 15, 1984, an Indenture Supplemental to Mortgage and Deed
of Trust, dated as of October 1, 1985, an Indenture
Supplemental to Mortgage and Deed of Trust, dated as of May 1,
1986, an Indenture Supplemental to Mortgage and Deed of Trust,
dated as of July 15, 1987, an Indenture Supplemental to
Mortgage and Deed of Trust, dated as of October 1, 1989, an
Indenture Supplemental to Mortgage and Deed of Trust, dated as of
March 1, 1991, an Indenture Supplemental to Mortgage and Deed
of Trust, dated as of May 1, 1992, and an Indenture
Supplemental to Mortgage and Deed of Trust, dated as of
January 1, 1993, an Indenture Supplemental to Mortgage and
Deed of Trust, dated as of August 1, 1993, an Indenture
Supplemental to Mortgage and Deed of Trust, dated as of
September 1, 1993, an Indenture Supplemental to Mortgage and
Deed of Trust, dated as of November 1, 1993, an Indenture
Supplemental to Mortgage and Deed of Trust, dated as of
June 1, 1994, an Indenture Supplemental to Mortgage and Deed
of Trust, dated as of October 1, 1994, an Indenture
Supplemental to Mortgage and Deed of Trust, dated as of
November 1, 1994, and an Indenture Supplemental to Mortgage
and Deed of Trust, dated as of March 1, 1997, such instruments
amending and supplementing the Mortgage in certain respects (the
Mortgage, as so amended and supplemented, being hereinafter called
the "Original Indenture") and conveying to the Trustee, upon
certain trusts, terms and conditions, and with and subject to
certain provisos and covenants therein contained, certain property
rights and property therein described; and
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WHEREAS,
in addition to the property described in the Original Indenture,
the Company has acquired certain property rights and property
hereinafter described and has covenanted in Section 42 of the
Original Indenture to execute and deliver such further instruments
and do such further acts as may be necessary or proper to make
subject to the lien thereof any property thereafter acquired and
intended to be subject to such lien; and
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____________________________________________________________________________________________
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WHEREAS,
the Company represents that no default has occurred under any of
the provisions of the Original Indenture; and
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WHEREAS,
the Original Indenture provides that bonds issued thereunder may be
issued in one or more series and further provides that, with
respect to each series, the rate of interest, the date or dates of
maturity, the dates for the payment of interest, the terms and
rates of optional redemption, and other terms and conditions shall
be determined by the Board of Directors of the Company prior to the
authentication thereof; and
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WHEREAS,
Section 121 of the Original Indenture provides that any power,
privilege or right expressly or impliedly reserved to or in any way
conferred upon the Company by any provision of the Original
Indenture, whether such power, privilege or right is in any way
restricted or is unrestricted, may be in whole or in part waived or
surrendered or subjected to any restriction if at the time
unrestricted or to additional restriction if already restricted,
and that the Company may enter into any further covenants,
limitations or restrictions for the benefit of any one or more
series of bonds issued under the Original Indenture and provide
that a breach thereof shall be equivalent to a default under the
Original Indenture, or the Company may cure any ambiguity or
correct or supplement any defective or inconsistent provisions
contained in the Original Indenture or in any indenture
supplemental to the Original Indenture, by an instrument in
writing, properly executed, and that the Trustee is authorized to
join with the Company in the execution of any such instrument or
instruments; and
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WHEREAS,
the Company has heretofore issued bonds of various series and in
various amounts and, of the bonds so issued, $495,600,000 aggregate
principal amount is outstanding at the date hereof; and
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WHEREAS,
the Company has entered into an Indenture, dated as of April 1,
2004 (the "Senior Note Indenture"), with The Bank of New York, as
trustee (the "Senior Note Trustee"), providing for the issuance
thereunder of the Company's senior debentures, notes or other
evidences of indebtedness ("Senior Notes"); and
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WHEREAS,
the Company has determined to issue under and pursuant to the
Senior Note Indenture a series of Senior Notes in the principal
amount of $120,000,000, to be known as the Senior Notes, 5.80%
Series due May 15, 2034 (hereinafter called "Senior Notes of 2034
Series"); and
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WHEREAS,
pursuant to Article Thirteen of the Senior Note Indenture, the
Company wishes to issue to the Senior Note Trustee, as security for
the Senior Notes of 2034 Series, a new series of bonds under the
Original Indenture (i) that have an aggregate principal amount
equal to the principal amount of the Senior Notes of 2034 Series,
(ii) that have a stated maturity date that is the same as the
stated maturity of the Senior Notes of 2034 Series, (iii) that bear
interest at a rate equal to the interest rate borne by the Senior
Notes of 2034 Series, (iv) that have interest payment dates that
are the same as the interest payment dates of the Senior Notes of
2034 Series, (v) that contain the same redemption provisions as the
Senior Notes of 2034 Series and (vi) that in all other material
respects conform as nearly as is practicable to the terms of the
Senior Notes of 2034 Series; and
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WHEREAS,
for such purposes the Company, by appropriate corporate action in
conformity with the terms of the Original Indenture, has duly
determined to create a new series of bonds under the Original
Indenture to be entitled and designated as "First Mortgage Bonds,
5.80 % Collateral Series due May 15, 2034" (herein sometimes
referred to as the "collateral bonds of the New Series");
and
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WHEREAS,
each of the fully registered collateral bonds of the New Series is
to be substantially in the following form, to wit:
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____________________________________________________________________________________________
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THIS
BOND IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR TRUSTEE UNDER THE
INDENTURE, DATED AS OF APRIL 1, 2004, AS SUPPLEMENTED, BETWEEN
ATLANTIC CITY ELECTRIC COMPANY AND THE BANK OF NEW YORK, AS
TRUSTEE
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(FORM OF BOND)
(FACE)
ATLANTIC CITY ELECTRIC COMPANY
FIRST MORTGAGE BOND
5.80 % Collateral Series due May 15, 2034
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ATLANTIC
CITY ELECTRIC COMPANY, a corporation of the State of New Jersey
(hereinafter called the "Company"), for value received, hereby
promises to pay to The Bank of New York, as trustee, or registered
assigns, the principal sum of
Dollars on May 15, 2034, at the office or agency of the Company in
the Borough of Manhattan, The City of New York in lawful money of
the United States of America, and to pay interest thereon at the
rate of 5.80 per centum per annum in like money, at said office or
agency on May 15 and November 15, in each year, commencing November
15, 2004, until the Company's obligation with respect to the
payment of such principal shall have been discharged. Interest on
this bond will accrue from April 8, 2004, to the first interest
payment date, and thereafter will accrue from the last interest
payment date to which interest has been paid or duly provided for.
In the event that any interest payment date is not a business day,
then payment of interest payable on such date will be made on the
next succeeding day which is a business day with the same force and
effect as if made on the interest payment date (and without any
interest or other payment in respect of such delay). "Business day"
means any day, other than a Saturday or Sunday, which is not a day
on which banking institutions or trust companies in the Borough of
Manhattan, The City of New York are generally authorized or
required by law, regulation or executive order to remain
closed.
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Subject
to certain exceptions provided in the Mortgage referred to on the
reverse hereof, the interest payable on any interest payment date
shall be paid to the person in whose name this bond registered at
the close of business on the first calendar day of the month in
which such interest payment date occurs; provided, however, that
interest payable at maturity will be paid to the person to whom
principal is paid.
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Under
an Indenture dated as of April 1, 2004 (hereinafter sometimes
referred to as the "Senior Note Indenture"), between the Company
and The Bank of New York, as trustee (hereinafter sometimes called
the "Senior Note Trustee"), the Company will issue, concurrently
with the issuance of this bond, an issue of senior notes under the
Senior Note Indenture entitled Senior Notes, 5.80% Series due May
15, 2034 (the "Senior Notes of 2034 Series"). Pursuant to Article
Thirteen of the Senior Note Indenture, this bond is issued to the
Senior Note Trustee to secure any and all obligations of the
Company under the Senior Notes of 2034 Series. Payment of principal
of, or premium, if any, or interest on, the Senior Notes of 2034
Series shall constitute payments on this bond.
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This
bond shall not become valid or obligatory for any purpose until The
Bank of New York, the Trustee under the Mortgage, or its successor
thereunder, shall have signed the form of authentication
certificate endorsed hereon.
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Reference
is made to the further provisions of this bond set forth on the
reverse hereof and such further provisions shall for all purposes
have the same effect as though fully set forth at this
place.
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____________________________________________________________________________________________
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IN
WITNESS WHEREOF, ATLANTIC CITY ELECTRIC COMPANY has caused this
bond to be executed in its name by the signature or a facsimile
thereof of its President or one of its Vice Presidents and its
corporate seal, or a facsimile thereof, to be impressed or
imprinted hereon and attested by the signature, or a facsimile
thereof, of its Secretary or one of its Assistant
Secretaries.
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Attest:
___________________________________
[Assistant] Secretary
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ATLANTIC CITY ELECTRIC
COMPANY
By: ________________________________
[Vice]
President
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(FORM OF BOND)
(REVERSE)
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This
bond is one of an issue of bonds of the Company, issuable in
series, and is one of a series known as its "First Mortgage Bonds,
5.80 % Collateral Series due May 15, 2034" (hereinafter called
"Collateral Bonds of 2034 Series"), all bonds of all series issued
and to be issued under and equally secured (except insofar as any
sinking fund, established in accordance with the provisions of the
Mortgage hereinafter mentioned, may afford additional security for
the bonds of any particular series) by a Mortgage and Deed of Trust
(herein, together with any indentures supplemental thereto, called
the Mortgage), dated January 15, 1937, executed by the Company to
THE BANK OF NEW YORK, as Trustee, to which Mortgage reference is
made for a description of the property mortgaged and pledged, the
nature and extent of the security, the rights of the holders of the
bonds in respect thereof, the duties and immunities of the Trustee,
and the terms and conditions upon which the bonds are secured. With
the consent of the Company and to the extent permitted by and as
provided in the Mortgage, the rights and obligations of the Company
and/or of the holders of the bonds and/or coupons and/or the terms
and provisions of the Mortgage and/or of any instruments
supplemental thereto may be modified or altered by affirmative vote
of the holders of at least seventy-five per centum (75%) in
principal amount of the bonds affected by such modification or
alteration then outstanding under the Mortgage (excluding bonds
disqualified from voting by reason of the Company's interest
therein as provided in the Mortgage); provided that no such
modification or alteration shall permit the extension of the
maturity of the principal of this bond or the reduction in the rate
of interest hereon or any other modification in the terms of
payment of such principal or interest without the consent of the
holder hereof.
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Upon
any payment of the principal of, premium, if any, and interest on
all or any portion of the Senior Notes of 2034 Series (and to the
extent of such payment), whether at maturity or prior to maturity
by redemption or otherwise, or upon provision for the payment
thereof having been made in accordance with Section 702 of the
Senior Note Indenture, the obligation of the Company to make the
corresponding payment of principal, premium, if any, or interest on
the Collateral Bonds of 2034 Series shall be deemed to be satisfied
and discharged. The Trustee may at any time and all times
conclusively assume that the obligation of the Company to make
payments with respect to the principal of, premium, if any, and
interest on the Collateral Bonds of 2034 Series, so far as such
payments at the time have become due, has been fully satisfied and
discharged pursuant to the foregoing sentence unless and until the
Trustee shall have received a written notice from the Senior Note
Trustee signed by one of its officers (i) stating that timely
payment of principal of or premium or interest on, the Senior Notes
of 2034 Series has not been so made and (ii) providing the details
of such nonpayment.
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This
bond is redeemable (i) on such dates, in such principal amounts and
at the redemption prices as the corresponding Senior Notes of 2034
Series and (ii) upon written demand of the Senior Note Trustee
following the occurrence of an Event of Default under the Senior
Note Indenture and the acceleration of the corresponding Senior
Notes of 2034 Series as provided in Section 802(a) or 802(b) of the
Senior Note Indenture.
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____________________________________________________________________________________________
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As
provided in Section 1308 of the Senior Note Indentu
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