Exhibit 4(c)
BALTIMORE GAS AND ELECTRIC
COMPANY
TO
BANKERS TRUST COMPANY,
Trustee
SUPPLEMENTAL INDENTURE
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THIS SUPPLEMENTAL INDENTURE, made
June 26, 2000, effective as of July 1, 2000, by and among BALTIMORE
GAS AND ELECTRIC COMPANY (name changed from CONSOLIDATED GAS
ELECTRIC LIGHT AND POWER COMPANY OF BALTIMORE on April 4, 1955), a
corporation duly created and organized under the law of the State
of Maryland, hereinafter called “BGE”, CONSTELLATION
POWER SOURCE GENERATION, INC., a corporation duly created and
organized under the laws of the State of Maryland, hereinafter
called “Generation”, and BANKERS TRUST COMPANY, a
corporation duly created and organized under the law of the State
of New York, having its principal office and place of business at
Four Albany Street, Borough of Manhattan, The City of New York,
hereinafter called the “Trustee.”
WHEREAS, BGE heretofore duly
executed, acknowledged and delivered to the Trustee (a) an
indenture of mortgage or deed of trust dated February 1, 1919
(which instrument, as amended, restated and/or supplemented by
seventy-four supplemental indentures and this supplemental
indenture, is hereinafter called the “Indenture”),
which has been duly recorded in the various Maryland and
Pennsylvania counties in which BGE owns real property and (b)
seventy-four supplemental indentures which have been duly recorded,
as necessary, in the various Maryland counties in which BGE owns
real property (with respect to personal property and fixtures
located in Maryland now owned or hereafter acquired by BGE, the
lien of the Indenture has been perfected as a security interest
under the Maryland Uniform Commercial Code, by recording and
indexing a financing statement in the office of the Maryland State
Department of Assessments and Taxation); and certain of the
aforesaid supplemental indentures have been duly recorded, as
necessary, in the various Pennsylvania counties in which BGE owns
real property (with respect to personal property and fixtures
located in Pennsylvania, now owned or hereafter acquired by BGE,
the lien of the Indenture has been perfected as a security interest
under the Pennsylvania Uniform Commercial Code by filing a
financing statement in the office of the Secretary of the
Commonwealth of the Commonwealth of Pennsylvania); and
WHEREAS, By the Indenture it is
among other things provided, in Section 9 of Article III thereof,
that from time to time BGE, when authorized by a resolution of its
Board of Directors, and the Trustee, may, subject to the provisions
of the Indenture, execute, acknowledge and deliver indentures
supplemental thereto, which thereafter shall form a part thereof,
for the purpose (among others) of conveying, assuring or confirming
to, or vesting in, the Trustee additional property now owned or
hereafter acquired pursuant to Section 7 of Article I or Section 2
of Article III of the Indenture, adding to the covenants of BGE in
the Indenture for the protection of the holders of the Securities,
making provisions for the redemption before maturity of any bonds
thereafter to be issued thereunder, or making such provision, not
inconsistent with the Indenture, as may be necessary or desirable
with respect to matters or questions arising thereunder;
and
WHEREAS, BGE has determined, that in
light of the deregulation of its generation assets pursuant to
Maryland law and an order issued by the Maryland Public Service
Commission, to transfer to Generation all of its right, title and
interest in its fossil generation assets and the assets and
properties of BGE used or held for use principally in
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connection with the operation of its
fossil generation assets as the same shall exist as of the date of
this supplemental indenture, subject to the lien currently existing
on such assets as evidenced by this Indenture, and BGE, Generation
and the Trustee are willing so to execute, acknowledge and deliver
this supplemental indenture for the purposes aforesaid;
and
WHEREAS, No actual consideration is
payable with respect to this supplemental indenture and the amount
of debt allowed to be issued under the Indenture is not increased
by this supplemental indenture; and
WHEREAS, Except as set forth herein,
this supplemental indenture is not intended to and will not
supersede or replace or satisfy or in any manner affect the liens
or security interests previously granted and conveyed to the
Trustee by the Indenture; and this supplemental indenture shall
have no effect on the priority of the liens or security interests
that the Indenture places on the property of BGE; and
WHEREAS, Pursuant to a written
consent executed by all of the Directors of BGE as provided by law
dated April 24, 2000, this supplemental indenture was authorized to
be executed, acknowledged and delivered on behalf of
BGE.
NOW, THEREFORE, THIS SUPPLEMENTAL
INDENTURE WITNESSETH: That, in order to secure the payment of the
principal of and interest on all such bonds at any time issued and
outstanding under the Indenture, according to their tenor and
effect, and to secure the performance of all the covenants and
conditions contained in the Indenture, as supplemented by this
supplemental indenture, and to declare the terms and conditions
upon which said bonds are issued, or to be issued, and secured
under the Indenture, BGE, for adequate consideration, the receipt
whereof is hereby acknowledged, has executed and delivered these
presents and hereby ratifies, approves and confirms the Indenture
in all respects as fully as if all the terms, provisions, covenants
and conditions thereof were herein again set forth at length, as
supplemented hereby, and has granted, bargained, sold, released,
conveyed, assigned, transferred, mortgaged, pledged, set over and
confirmed, and granted a security interest therein, and by these
presents does grant, bargain, sell, release, convey, assign,
transfer, mortgage, pledge, set over and confirm, and grant a
security interest therein unto Bankers Trust Company, and unto its
successors and assigns forever, all and singular the premises,
property and franchises of BGE other than as excepted in the
Indenture, now owned or hereafter acquired in Maryland or
Pennsylvania.
TOGETHER with all the rights,
privileges and appurtenances to any of said premises, property and
franchises belonging or in anywise appertaining, and the reversion
and reversions, remainder and remainders, rents, issues, income and
profits thereof, and all the estate, right, title and interest
which BGE now has or may hereafter acquire therein or thereto or in
or to any part thereof.
TO HAVE AND TO HOLD, All and
singular the said premises, property and franchises, appurtenances,
rents, issues, income and profits hereby conveyed,
transferred,
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assigned and confirmed, or intended
so to be, unto the Trustee, its successors and assigns,
forever.
IN TRUST, NEVERTHELESS, For the
equal and proportionate benefit and security of all holders of the
bonds and interest obligations issued or to be issued under the
Indenture, and for the enforcement of the payment of said bonds and
interest obligations when payable and the performance of and
compliance with the covenants and conditions of the Indenture as
supplemented by this supplemental indenture, without preference,
priority or distinction, as to lien or otherwise of any series of
bonds over any other series of bonds, or of any one bond over any
other bonds, by reason of priority in the issue or negotiation
thereof or otherwise, so that each and every bond issued or to be
issued under the Indenture or secured thereby shall have the same
right, lien and privilege under the Indenture as supplemented by
this supplemental indenture, and so that the principal and interest
of every such bond, subject to the terms of the Indenture as so
supplemented, be equally and proportionately secured thereby as if
all had been duly made, executed, delivered, sold and negotiated
simultaneously with the execution and delivery of the Indenture, it
being intended that the lien and security of the Indenture shall
take effect from the date of the execution and delivery thereof
without regard to the time of such actual issue, sale or
disposition of said bonds, and as though upon said date all of said
bonds had been actually issued, sold and delivered to, and were in
the hands of, holders thereof for value.
AND IT IS HEREBY FURTHER COVENANTED
AND DECLARED, That all such bonds are issued and certified and
delivered, or to be issued and certified and delivered, and the
mortgaged premises and property are to be held by the Trustee,
subject to the further covenants, conditions, uses and trusts in
the Indenture, as supplemented by this supplemental indenture, set
forth, and it is agreed and covenanted by BGE and Generation with
the Trustee and the respective holders from time to time of bonds
issued under the Indenture as follows:
1.
Pursuant to that certain Agreement Regarding Transfer of Fossil
Assets effective July 1, 2000, between BGE and Generation (the
“Transfer Agreement”), BGE has transferred and
delivered to Generation all of its right, title and interest in its
fossil generation assets and its assets and properties used or held
for use principally in connection with the operation of its fossil
generation assets as the same existed at the time of transfer and
as more particularly described in the Transfer Agreement (the
“Acquired Assets”). Pursuant to the Transfer Agreement,
Generation has acknowledged and agreed that the Acquired Assets
transferred to it are subject to the lien of the Indenture and has
agreed to be bound to all of the provisions of the Indenture
applicable to it as owner of the Acquired Assets.
2.
In addition to the lien of the Indenture attaching to the Acquired
Assets, in accordance with the Transfer Agreement, it also will
attach to any Repairs to, or Replacements of, the Acquired Assets.
“Repairs” means repairs to the Acquired Assets
necessary to keep them operational in the same manner as they were
at the time of transfer and that cannot be removed or severed from
an Acquired Asset without rendering
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such asset unfit for the purpose it
was used for at the time of transfer. “Replacement”
means an actual replacement of an Acquired Asset.
3.
Generation hereby grants a security interest in the Acquired Assets
and any Repairs and Replacements thereto, to the
Trustee.
4.
The Trustee acknowledges and agrees that the lien of the Indenture
only attaches to the Acquired Assets transferred to Generation
pursuant to the Transfer Agreement, and any Repairs or Replacements
thereto. Notwithstanding any other provisions in the Indenture that
may be to the contrary, the lien of the Indenture does not, and
will not, attach to any other property, franchises or rights, real,
personal or intangible of Generation including, but not limited to,
any improvements, additions, or new construction upon the land that
do not constitute Repairs or Replacements (the “Unsecured
Property”), and the Trustee hereby releases from the lien of
the Indenture any such Unsecured Property.
5.
The recitals of fact contained herein shall be taken as the
statements of BGE and Generation and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes
no representations to the value of the mortgaged property or any
part thereof, or as to the title of BGE and Generation thereto, or
as to the value or validity of the security afforded thereby and by
the Indenture, or as to the value or validity of any securities at
any time held under the Indenture, or as to the validity of this
supplemental indenture or the Indenture or of the Bonds issued
thereunder, and the Trustee shall incur no responsibility, except
as otherwise provided in the Indenture, in respect of such
matters.
6.
If and to the extent that any provision of this supplemental
indenture limits, qualifies, or conflicts with another provision of
the Indenture required to be included therein by any of Sections
310 to 317, inclusive, of the Trust Indenture Act of 1939, as
amended, such required provision shall control; provided, however,
that nothing in this supplemental indenture contained shall be so
construed as to relieve BGE or the Trustee of any duty or
obligation which it would otherwise have to any holder of any Bond
heretofore issued under the Indenture, or so construed as to grant
to the Trustee any rights as against any holder of Bonds heretofore
issued under the Indenture not granted under said Indenture, and no
provision in this supplemental indenture contained shall impair any
of the rights of any holder of any Bond heretofore issued under the
Indenture.
7.
All of the provisions of this supplemental indenture shall become
effective July 1, 2000. This supplemental indenture and all the
provisions hereof shall form a part of the Indenture and all
references or mention in the Indenture to the Indenture or to any
of the terms, provisions, covenants, conditions, uses or trusts
thereof or the recitals or statements therein or to the recording,
filing or refiling thereof, shall be applicable to the terms,
provisions, covenants, conditions, uses and trusts of, and the
recitals and statements in, this supplemental indenture and the
Indenture as hereby amended and restated, and to the recording,
filing and refiling thereof, as fully and with the same force and
effect as if all the terms, provisions, covenants, conditions, uses
and trusts of, and all
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the recitals and statements in, the
Indenture were herein again set forth at length and the entire
Indenture as hereby amended and restated were herein set forth at
length as one new instrument.
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IN TESTIMONY WHEREOF, Baltimore Gas
and Electric Company and Constellation Power Source Generation,
Inc. have caused these presents to be signed in their corporate
name by their President or Vice-President; and the Bankers Trust
Company has also caused these p
