701 Ninth
Street, NW - Suite 1220
Associate
General Counsel - PHI
701 Ninth
Street, NW - Suite 1220
POTOMAC
ELECTRIC POWER COMPANY
701 Ninth
Street, N.W., Washington, D.C.
TO
THE BANK
OF NEW YORK
101
Barclay Street, New York, NY
------------------------------------------
------------------------------------------
Supplemental
to Mortgage and Deed of Trust
Dated
July 1, 1936
------------------------------------------
POTOMAC
ELECTRIC POWER COMPANY
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PAGE |
Parties
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1
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Recitals
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1
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Description
of Bonds of the Second 2037 Series
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Section
1.
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General
description of Bonds of the Second 2037 Series
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5
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Section
2.
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Form
of face of Bond of the Second 2037 Series
Form
of Trustee’s certificate
Text
appearing on reverse side of Bond of 2037 Series
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6
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Section
3.
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Denominations
of Bonds of the Second 2037 Series
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9
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Section
4.
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Execution
and form of temporary Bonds of the Second 2037 Series
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9
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Issue
of Bonds
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Section
1.
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Limitation
as to principal amount
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10
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Section
2.
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Issue
of Bonds of the Second 2037 Series
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10
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Redemption
and Cancellation of Bonds
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Section
1.
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Bonds
of the Second 2037 Series redeemable
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10
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Section
2.
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11
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Section
3.
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Occurrence
of Release Date
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11
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Section
4.
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Cancellation
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11
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The Table of Contents is not part of the Supplemental
Indenture and should not be considered as such. It is included herein
only for purposes of convenient reference.
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Section
1.
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Company
not to withdraw moneys pursuant to Section 2 of Article VIII in excess of
an amount equal to principal amount of issued refundable
bonds
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12
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Section
2.
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No
property additions made on or prior to December 31, 1946 to be used for
any purpose under the Indenture
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12
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12
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The
Trustee
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12
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Miscellaneous
Provisions
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13
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Execution
of Supplemental Indenture in counterparts
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Appointment
of attorneys-in-fact by parties
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Testimonium
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Execution
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Company’s
Acknowledgments
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Trustee’s
Acknowledgments
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SUPPLEMENTAL
INDENTURE, dated as of the twenty-fourth day of March, two thousand eight
(2008), made by and between Potomac Electric Power Company, a corporation
organized and existing under the laws of the District of Columbia and a domestic
corporation of the Commonwealth of Virginia (hereinafter sometimes called the
“Company”), party of the first part, and The Bank of New York, a New York
banking corporation organized and existing under the laws of the State of New
York (hereinafter sometimes called the “Trustee”), as trustee under the Mortgage
and Deed of Trust dated July 1, 1936, hereinafter mentioned, party of the
second part;
WHEREAS,
the Company has heretofore executed and delivered its Mortgage and Deed of
Trust, dated July 1, 1936 (hereinafter sometimes referred to as the
“Original Indenture”), to The Riggs National Bank of Washington, D.C., as
trustee, to secure an issue of First Mortgage Bonds of the Company, issuable in
series; and
WHEREAS,
the Trustee has succeeded The Riggs National Bank of Washington, D.C. as trustee
under the Original Indenture pursuant to Article XIII, Section 3 thereof;
and
WHEREAS,
pursuant to the terms and provisions of the Original Indenture, indentures
supplemental thereto dated as of July 1, 1936, December 1, 1939,
August 1, 1940, August 1, 1942, January 1, 1948, May 1,
1949, May 1, 1950, March 1, 1952, May 15, 1953, May 16,
1955, June 1, 1956, December 1, 1958, November 16, 1959,
December 1, 1960, February 15, 1963, May 15, 1964, April 1,
1966, May 1, 1967, February 15, 1968, March 15, 1969,
February 15, 1970, August 15, 1970, September 15, 1972,
April 1, 1973, January 2, 1974, August 15, 1974, August 15,
1974, June 15, 1977, July 1, 1979, June 16, 1981, June 17,
1981, December 1, 1981, August 1, 1982, October 1, 1982,
April 15, 1983, November 1, 1985, March 1, 1986, November 1,
1986, March 1, 1987, September 16, 1987, May 1, 1989,
August 1, 1989, April 5, 1990, May 21, 1991, May 7, 1992,
September 1, 1992, November 1, 1992, March 1, 1993, March 2,
1993, July 1, 1993, August 20, 1993, September 29, 1993,
September 30, 1993, October 1, 1993, February 10, 1994,
February 11, 1994, March 10, 1995, September 6, 1995,
September 7, 1995, October 2, 1997, March 17, 1999, November 17,
2003, March 16, 2004, May 24, 2005, April 1, 2006 and November 13, 2007
have been heretofore entered into between the Company and the Trustee to
provide, respectively, for the creation of the first through the sixty-ninth
series of Bonds thereunder and, in the case of the supplemental indentures dated
January 1, 1948, March 1, 1952, May 15, 1953, May 16, 1955,
June 1, 1956, September 15, 1972, July 1, 1979, June 17,
1981, November 1, 1985, September 16, 1987, May 1, 1989,
May 21, 1991, May 7, 1992, July 1, 1993, October 2, 1997 and
one of the supplemental indentures dated August 15, 1974, to convey
additional property; and
WHEREAS,
$20,000,000 principal amount of Bonds of the 3-1/4% Series due 1966 (the first
series), $5,000,000 principal amount of Bonds of the 3-1/4% Series due 1974 (the
second series), $10,000,000 principal amount of Bonds of the 3-1/4% Series due
1975 (the third series), $5,000,000 principal amount of Bonds of the 3-1/4%
Series due 1977 (the fourth series), $15,000,000 principal amount of Bonds of
the 3% Series due 1983 (the fifth series), $10,000,000 principal amount of Bonds
of the 2-7/8% Series due 1984 (the sixth series), $30,000,000 principal amount
of Bonds of the 2-3/4% Series due 1985 (the seventh series), $15,000,000
principal amount of Bonds of the 3-1/4% Series due 1987 (the eighth series),
$10,000,000 principal amount of Bonds of the 3-7/8% Series due 1988 (the ninth
series), $10,000,000
principal
amount of Bonds of the 3-3/8% Series due 1990 (the tenth series), $10,000,000
principal amount of Bonds of the 3-5/8% Series due 1991 (the eleventh series),
$25,000,000 principal amount of Bonds of the 4-5/8% Series due 1993 (the twelfth
series), $15,000,000 principal amount of Bonds of the 5-1/4% Series due 1994
(the thirteenth series), $40,000,000 principal amount of Bonds of the 5% Series
due 1995 (the fourteenth series), $50,000,000 principal amount of Bonds of the
4-3/8% Series due 1998 (the fifteenth series), $45,000,000 principal amount of
Bonds of the 4-1/2% Series due 1999 (the sixteenth series), $15,000,000
principal amount of Bonds of the 5-1/8% Series due 2001 (the seventeenth
series), $35,000,000 principal amount of Bonds of the 5-7/8% Series due 2002
(the eighteenth series), $40,000,000 principal amount of Bonds of the 6-5/8%
Series due 2003 (the nineteenth series),$45,000,000 principal amount of Bonds of
the 7-3/4% Series due 2004 (the twentieth series), $35,000,000 principal amount
of Bonds of the 8.85% Series due 2005 (the twenty-first Series), $70,000,000
principal amount of Bonds of the 9-1/2% Series due August 15, 2005 (the
twenty-second series), $50,000,000 principal amount of Bonds of the 7-3/4%
Series due 2007 (the twenty-third series), $25,000,000 principal amount of Bonds
of the 5-5/8% Series due 1997 (the twenty-fourth series), $100,000,000 principal
amount of Bonds of the 8-3/8% Series due 2009 (the twenty-fifth series),
$50,000,000 principal amount of Bonds of the 10-1/4% Series due 1981 (the
twenty-sixth series), $50,000,000 principal amount of Bonds of the 10-3/4%
Series due 2004 (the twenty-seventh series), $38,300,000 principal amount of
Bonds of the 6-1/8% Series due 2007 (the twenty-eighth series), $15,000,000
principal amount of Bonds of the 6-1/2% Series due 2004 (the twenty-ninth
series), $20,000,000 principal amount of Bonds of the 6-1/2% Series due 2007
(the thirtieth series), $7,500,000 principal amount of Bonds of the 6-5/8%
Series due 2009 (the thirty-first series), $30,000,000 principal amount of Bonds
of the Floating Rate Series due 2010 (the thirty-second series), $50,000,000
principal amount of Bonds of the 14-1/2% Series due 1991 (the thirty-third
series), $50,000,000 principal amount of Bonds of the Adjustable Rate Series due
2001 (the thirty-fourth series),$60,000,000 principal amount of Bonds of the
14-1/4% Series due 1992 (the thirty-fifth series), $50,000,000 principal amount
of Bonds of the 11-7/8% Series due 1989 (the thirty-sixth series), $37,000,000
principal amount of Bonds of the 8-3/4% Series due 2010 (the thirty-seventh
series), $75,000,000 principal amount of Bonds of the 11-1/4% Series due 2015
(the thirty-eighth series), $75,000,000 principal amount of Bonds of the 9-1/4%
Series due 2016 (the thirty-ninth series), $75,000,000 principal amount of Bonds
of the 8-3/4% Series due 2016 (the fortieth series), $75,000,000 principal
amount of Bonds of the 8-1/4% Series due 2017 (the forty-first series),
$75,000,000 principal amount of Bonds of the 9% Series due 1990 (the
forty-second series), $75,000,000 principal amount of Bonds of the 9-3/4% Series
due 2019 (the forty-third series), $75,000,000 principal amount of Bonds of the
8-5/8% Series due 2019 (the forty-fourth series), $100,000,000 principal amount
of Bonds of the 9% Series due 2000 (the forty-fifth series), $100,000,000
principal amount of Bonds of the 9% Series due 2021 (the forty-sixth series),
$75,000,000 principal amount of Bonds of the 8-1/2% Series due 2027 (the
forty-seventh series); $78,000,000 principal amount of Bonds of the 6-1/2%
Series due 2008 (the fiftieth series); $40,000,000 principal amount of Bonds of
the 7-1/2% Series due 2028 (the fifty-first series); $100,000,000 principal
amount of Bonds of the 7-1/4% Series due 2023 (the fifty-second series);
$100,000,000 principal amount of Bonds of the 6-7/8% Series due 2023 (the
fifty-third series); $50,000,000 principal amount of Bonds of the 5-5/8% Series
due 2003 (the fifty-fourth series); $75,000,000 principal amount of Bonds of the
6-7/8% Series due 2024 (the fifty-sixth series); $100,000,000 principal amount
of Bonds of the 6-1/2% series due 2005 (the sixtieth series); $75,000,000
principal amount of Bonds of the 7-3/8% Series due 2025 (the sixty-
first
series); $175,000,000 principal amount of Bonds of the 6-1/4% Series due 2007
(the sixty-second series); and $270,000,000 principal amount of Bonds of the 6%
Series due 2004 (the sixty-third series) have been heretofore redeemed and
retired and there are now issued and outstanding under the Original Indenture
and under the supplemental indentures referred to above: $30,000,000 principal
amount of Bonds of the 6% Series due 2022 (the forty-eighth series); $37,000,000
principal amount of Bonds of the 6-3/8% Series due 2023 (the forty-ninth
series); $50,000,000 principal amount of Bonds of the 5-7/8% Series due 2008
(the fifty-fifth series); $42,500,000 principal amount of Bonds of the 5-3/8%
Series due 2024 (the fifty-seventh series); $38,300,000 principal amount of
Bonds of the 5-3/8% Series due 2024 (the fifty-eighth series); $16,000,000
principal amount of Bonds of the 5-3/4% Series due 2010 (the fifty-ninth
series); $200,000,000 principal amount of Bonds of the 4.95% Series due 2013
(the sixty-fourth series); $175,000,000 principal amount of Bonds of the 4.65%
Series due 2014 (the sixty-fifth series); $100,000,000 principal amount of Bonds
of the 5.75% Series due 2034 (the sixty-sixth series); $175,000,000 principal
amount of Bonds of the 5.40% Series due 2035 (the sixty-seventh series);
$109,500,000, principal amount of Bonds of the Medco Collateral Series due 2022
(the sixty-eighth series); and $250,000,000 principal amount of Bonds of the
6.50% Series due 2037 (the sixty-ninth series); and
WHEREAS,
for the purpose of conforming the Original Indenture to the standards prescribed
by the Trust Indenture Act of 1939 or otherwise modifying certain of the
provisions of the Original Indenture, indentures supplemental thereto dated
December 10, 1939, August 10, 1942, October 15, 1942,
April 1, 1966, June 16, 1981, June 17, 1981, December 1,
1981, August 1, 1982, October 1, 1982, April 15, 1983,
November 1, 1985, March 1, 1986, November 1, 1986, March 1,
1987, September 16, 1987, May 1, 1989, August 1, 1989,
April 5, 1990, May 21, 1991, May 7, 1992, September 1, 1992,
November 1, 1992, March 1, 1993, March 2, 1993, July 1,
1993, August 20, 1993, September 29, 1993, September 30, 1993,
October 1, 1993, February 10, 1994, February 11, 1994,
March 10, 1995, September 6, 1995, September 7, 1995,
October 2, 1997, March 17, 1999, November 17, 2003, March 16, 2004,
May 24, 2005, April 1, 2006 and November 13, 2007 have been heretofore entered
into between the Company and the Trustee, and for the purpose of conveying
additional property, indentures supplemental thereto dated July 15, 1942,
October 15, 1947, December 31, 1948, December 31, 1949,
February 15, 1951, February 16, 1953, March 15, 1954,
March 15, 1955, March 15, 1956, April 1, 1957, May 1, 1958,
May 1, 1959, May 2, 1960, April 3, 1961, May 1, 1962,
May 1, 1963, April 23, 1964, May 3, 1965, June 1, 1966,
April 28, 1967, July 3, 1967, May 1, 1968, June 16, 1969,
May 15, 1970, September 1, 1971, June 17, 1981, November 1,
1985, September 16, 1987, May 1, 1989, May 21, 1991, May 7,
1992, July 1, 1993 and October 2, 1997 have been heretofore entered
into between the Company and the Trustee, and for the purpose of better securing
and protecting the Bonds then or thereafter issued and confirming the lien of
the Original Indenture, an indenture dated October 15, 1942 supplemental
thereto has been heretofore entered into between the Company and the Trustee;
the Original Indenture as heretofore amended and supplemented being hereinafter
referred to as the “Original Indenture as amended”; and
WHEREAS,
the Company is entitled to have authenticated and delivered additional Bonds in
substitution for refundable Bonds, upon compliance with the provisions of
Section 7 of Article III of the Original Indenture as amended; and
WHEREAS,
the Company has entered into an Indenture, dated as of November 17, 2003
(as amended, supplemented or modified to the date hereof, the “Senior Note
Indenture”), with The Bank of New York, as trustee (the “Senior Note Trustee”),
providing for the issuance thereunder of senior debt securities (the “Senior
Notes”); and
WHEREAS,
the Company has determined to issue under and pursuant to the Senior Note
Indenture an additional amount of the Company’s 6.50% Senior Notes due November
15, 2037 in the principal amount of $250,000,000 (hereinafter called “Senior
Notes of 2037 Series); and
WHEREAS,
pursuant to Article Thirteen of the Senior Note Indenture, the Company wishes to
issue to the Senior Note Trustee, for the benefit of the holders of the Senior
Notes of 2037 Series, a new series of Bonds under the Original Indenture as
amended (i) that have an aggregate principal amount equal to the principal
amount of the Senior Notes of 2037 Series, (ii) that have a stated maturity
date that is the same as the stated maturity of the Senior Notes of 2037 Series,
(iii) that bear interest at a rate equal to the interest rate borne by the
Senior Notes of 2037 Series, (iv) that have interest payment dates that are
the same as the interest payment dates of the Senior Notes of 2037 Series,
(v) that contain the same redemption provisions as the Senior Notes of 2037
Series and (vi) that in all other material respects conform as nearly as is
practicable to the terms of the Senior Notes of 2037 Series; and
WHEREAS,
for such purposes the Company has determined to issue a
seventieth series of Bonds under the Original Indenture as amended in
the principal amount of $250,000,000, to be known as First Mortgage Bonds, 6.50%
Collateral Series 2 due 2037 (hereinafter called “Bonds of the Second 2037
Series”); and
WHEREAS,
the Bonds of the Second 2037 Series and the $250,000,000 principal amount of
First Mortgage Bonds, 6.50% Collateral Series due 2037 delivered by the Company
to the Senior Note Trustee on November 16, 2007, shall collectively secure the
Senior Notes of 2037 Series; and
WHEREAS,
the Company intends to use the net proceeds of the Senior Notes of 2037 Series
to provide funding to (a) repay short term debt of the Company, $78,000,000 of
which was issued to repay at maturity $78,000,000 in principal amount of Bonds
of the 6-1/2% Series due 2008, (b) to repay $50,000,000 in principal amount of
Bonds of the 5-7/8% Series due 2008 at maturity, and (c) otherwise for general
corporate purposes; and
WHEREAS,
the Company, in the exercise of the powers and authority conferred upon and
reserved to it under the provisions of the Original Indenture as amended and
pursuant to appropriate resolutions of its Board of Directors, has duly resolved
and determined to make, execute and deliver to the Trustee a supplemental
indenture in the form hereof for the purposes herein provided; and
WHEREAS,
all conditions and requirements necessary to make this Supplemental Indenture a
valid, binding and legal instrument have been done, performed and fulfilled, and
the execution and delivery hereof have been in all respects duly
authorized;
That
Potomac Electric Power Company, in consideration of the premises and of One
Dollar to it duly paid by the Trustee at or before the ensealing and delivery of
these presents, and for other valuable considerations, the receipt whereof is
hereby acknowledged, hereby covenants, declares and agrees with the Trustee and
its successors in the trust under the Original Indenture as amended for the
benefit of those who hold the Bonds and coupons, or any of them, issued or to be
issued hereunder or under the Original Indenture as amended, as
follows:
PART
I.
DESCRIPTION
OF BONDS OF THE SECOND 2037 SERIES.
SECTION
1. The Bonds
of the Second 2037 Series shall, subject to the provisions of Section 1 of
Article II of the Original Indenture as amended, be designated as “First
Mortgage Bonds, 6.50% Collateral Series 2 due November 15, 2037” of the
Company. The Bonds of the Second 2037 Series shall be executed,
authenticated and delivered in accordance with the provisions of, and shall in
all respects be subject to, all of the terms, conditions and covenants of the
Original Indenture as amended, except in so far as the terms and provisions of
the Original Indenture as amended are amended or modified by this Supplemental
Indenture.
The Bonds of the Second 2037 Series shall mature on
November 15, 2037, and shall bear interest at such rate as is payable from time
to time on the Senior Notes of 2037 Series, payable at such times as interest is
payable on such Senior Notes of 2037 Series, until the principal thereof is paid
or made available for payment. Interest on the Bonds of the Second 2037 Series
will accrue during the same periods as interest accrues from time to time on the
Senior Notes of 2037 Series. The Bonds of the Second 2037 Series shall be
payable as to principal and interest in lawful money of the United States of
America, and shall be payable (as well the interest as the principal thereof) at
the agency of the Company in the Borough of Manhattan, The City of New
York.
Each Bond of the Second 2037 Series is to be issued to
and registered in the name of the Senior Note Trustee, to be owned and held by
the Senior Note Trustee under the terms of the Senior Note Indenture for the
benefit of the holders of the Senior Notes of 2037 Series in order to secure the
Company’s obligations under the Senior Notes of 2037 Series. The Bonds of the
Second 2037 Series shall not be assignable or transferable except as permitted
or required by Section 1307 of the Senior Note Indenture.
Upon any payment or deemed payment of the principal of,
premium, if any, and interest on all or any portion of the Senior Notes of
2037 Series (and to the extent of such payment or deemed 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 Bonds of
the Second 2037 Series shall be deemed to be satisfied and
discharged. The Trustee may at any time and all times conclusively
presume that the obligation of the Company to make payments with respect to the
principal of, premium, if any, and interest on the Bonds of the Second 2037
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 2037 Series has not been so made or deemed made
and (ii) providing the details of such nonpayment.
SECTION
2. The Bonds
of the Second 2037 Series, and the Trustee’s certificate to be endorsed on the
Bonds of the Second 2037 Series, shall be substantially in the following forms,
respectively:
[FORM OF
FACE OF BOND OF SECOND 2037 SERIES]
THIS BOND
IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR TRUSTEE UNDER THE INDENTURE, DATED
NOVEMBER 17, 2003, AS AMENDED AND SUPPLEMENTED, BETWEEN POTOMAC ELECTRIC POWER
COMPANY AND THE BANK OF NEW YORK, AS TRUSTEE
POTOMAC
ELECTRIC POWER COMPANY
(A
District of Columbia and Virginia corporation)
No.
POTOMAC ELECTRIC POWER COMPANY, a corporation organized
and existing under the laws of the District of Columbia and a domestic
corporation of the Commonwealth of Virginia (hereinafter called the “Company”,
which term shall include any successor corporation as defined in the Amended
Indenture hereinafter referred to), for value received, hereby promises to pay
to The Bank of New York, as trustee, or registered assigns, the sum of
dollars, on the fifteenth day of November 2037, in lawful money of the United
States of America, and to pay interest on said principal sum at such rate as is
payable from time to time on the corresponding Senior Notes of 2037 Series (as
hereinafter defined), payable at such times as interest is payable on such
Senior Notes of 2037 Series, in like money, until the Company’s obligation with
respect to the payment of such principal shall have been
discharged. Interest on this Bond will accrue during the same periods
as interest accrues from time to time on the Senior Notes of 2037 Series. Both
principal of, and interest on, this Bond are payable at the agency of the
Company in the Borough of Manhattan, The City of New York.
Under an
Indenture dated as of November 17, 2003 (as amended, supplemented or modified to
the date hereof, hereinafter sometimes referred to as the “Senior Note
Indenture”), between Potomac Electric Power 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 additional amount of
the Company’s 6.50% Senior Notes due 2037 series of securities under the Senior
Note Indenture (the “Senior Notes of 2037 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 2037 Series.
Payment
or deemed payment of principal of, or premium, if any, or interest on, the
Senior Notes of 2037 Series shall constitute payments on this Bond.
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.
This Bond
shall not be entitled to any benefit under the Amended Indenture (as defined
herein) or any indenture supplemental thereto, or become valid or obligatory for
any purpose, until The Bank of New York, the Trustee under the Amended
Indenture, or a successor trustee thereto under the Amended Indenture, shall
have signed the form of certificate endorsed hereon.
IN
WITNESS WHEREOF, Potomac Electric Power Company has caused this Bond to be
signed in its name by the signature (or a facsimile thereof) of its President or
a Vice President, and its corporate seal (or a facsimile thereof) to be hereto
affixed and attested by the facsimile signature of its Secretary or an Assistant
Secretary.
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POTOMAC ELECTRIC POWER COMPANY
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By
_____________________________________
Vice
President
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Attest:
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____________________________
Secretary
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[FORM OF
TRUSTEE’S CERTIFICATE]
This Bond
is one of the Bonds, of the series designated therein, described in the
within-mentioned Amended Indenture and the Supplemental Indenture dated as of
March 24, 2008.
Dated:
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The Bank of New York,
as Trustee.
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By
_____________________________________
Authorized
Signatory
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[TEXT
APPEARING ON REVERSE SIDE OF BOND OF SECOND 2037 SERIES]
This Bond
is one of a duly authorized issue of Bonds of the Company (hereinafter called
the “Bonds”) in unlimited aggregate principal amount, of the series hereinafter
specified, all issued and to be issued under and equally secured (except in so
far as any purchase or sinking fund or analogous provisions for any particular
series of Bonds, established by any indenture supplemental to the Amended
Indenture hereinafter mentioned, may afford additional security for such Bonds)
by a mortgage and deed of trust, dated July 1, 1936, executed by the
Company to The Bank of New York as successor to The Riggs National Bank of
Washington, D.C. (herein
called
the “Trustee”), as trustee, as amended by indentures supplemental thereto dated
December 10, 1939, August 10, 1942, October 15, 1942,
April 1, 1966, June 16, 1981, June 17, 1981, December 1,
1981, August 1, 1982, October 1, 1982, April 15, 1983,
November 1, 1985, March 1, 1986, November 1, 1986, March 1,
1987, September 16, 1987, May 1, 1989, August 1, 1989,
April 5, 1990, May 21, 1991, May 7, 1992, September 1, 1992,
November 1, 1992, March 1, 1993, March 2, 1993, July 1,
1993, August 20, 1993, September 29, 1993, September 30, 1993,
October 1, 1993, February 10, 1994, February 11, 1994,
March 10, 1995, September 6, 1995, September 7, 1995,
October 2, 1997, March 17, 1999, November 17, 2003, March 16, 2004, May 24,
2005, April 1, 2006 and November 13, 2007 (said mortgage and deed of trust, as
so amended, being herein called the “Amended Indenture”) and all indentures
supplemental thereto, to which Amended Indenture and supplemental indentures
reference is hereby made for a description of the properties mortgaged and
pledged, the nature and extent of the security, the rights of the owners of the
Bonds and of the Trustee in respect thereto, and the terms and conditions upon
which the Bonds are, and are to be, secured. To the extent permitted
by, and as provided in, the Amended Indenture, modifications or alterations of
the Amended 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 an affirmative vote of not less than 60%
in amount of the Bonds entitled to vote then outstanding, at a meeting of
Bondholders called and held as provided in the Amended Indenture, and by an
affirmative vote of not less than 60% in amount of the Bonds of any series
entitled to vote 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 Amended Indenture are so affected; provided, however, that
no such modification or alteration shall be made which will affect the terms of
payment of the principal of, or interest on, this Bond, which are unconditional,
or which reduces the percentage of Bonds the affirmative vote of which is
required for the making of such modifications or alterations.
Upon any
payment or deemed payment of the principal of, premium, if any, and interest on
all or any portion of the Senior Notes of 2037 Series (and to the extent of such
payment or deemed 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 Bonds of the Second 2037 Series shall be
deemed to be satisfied and discharged. The Trustee may at any time
and all times conclusively presume that the obligation of the Company to make
payments with respect to the principal of, premium, if any, and interest on the
Bonds of the Second 2037 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 stating (i) that timely
payment of principal of,
or
premium or interest on, the Senior Notes of 2037 Series has not been so made or
deemed made and (ii) providing the details of such nonpayment.
This Bond
is redeemable on such dates, in such principal amounts and at such
redemption prices as the Senior Notes of 2037 Series are redeemable, and this
Bond shall be redeemed 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 Senior Notes of 2037 Series as provided in Section
802(a) or 802(b) of the Senior Note Indenture, all as provided in this New
Supplemental Indenture.
This Bond
shall not be assignable or transferable except as permitted or required by
Section 1307 of the Senior Note Indenture.
As
provided in Section 1308 of the Senior Note Indenture, from and after the
Release Date (as defined in the Senior Note Indenture), the obligation of the
Company with respect to this Bond shall be deemed to be satisfied and
discharged, this Bond shall cease to secure in any manner the Senior Notes of
2037 Series or any other senior notes outstanding under the Senior Note
Indenture and, pursuant to Section 1308 of the Senior Note Indenture, the
Senior Note Trustee shall forthwith deliver this Bond to the Company or the
Trustee (as directed by Company Order (as defined in the Senior Note
Indenture)).
In case
an event of default, as defined in the Amended Indenture, shall occur, the
principal of all the Bonds at any such time outstanding under the Amended
Indenture may be declared or may become due and payable, upon the conditions and
in the manner and with the effect provided in the Amended
Indenture. The Amended Indenture provides that such declaration may
in certain events be waived by the holders of a majority in principal amount of
the Bonds entitled to vote then outstanding.
No
recourse shall be had for the payment of the principal of, or the interest on,
this Bond, or for any claim based hereon or otherwise in respect hereof or of
the Amended Indenture or any indenture supplemental thereto, against any
incorporator, or against any stockholder, director or officer, past, present or
future, of the Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor
corporation, whether for amounts unpaid on stock subscriptions or by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability, whether at common law,
in equity, by any constitution, statute or otherwise, of incorporators,
stockholders, directors or officers being released by every owner hereof by the
acceptance of this Bond and as part of the consideration for the issue hereof,
and being likewise released by the terms of the Amended Indenture.
[END OF
FORM]
SECTION
3. The Bonds
of the Second 2037 Series shall be registered Bonds without coupons in
denominations of any multiple of $1,000, numbered consecutively upwards from
R-1.
SECTION
4. Until
Bonds of the Second 2037 Series in definitive form are ready for delivery, the
Company may execute, and upon its request in writing the Trustee
shall
authenticate
and deliver, in lieu thereof, Bonds for such series in temporary form, as
provided in Section 9 of Article II of the Original Indenture as
amended.
PART
II.
Issue of
Bonds.
SECTION
1. Except
for Bonds of the Second 2037 Series issued pursuant to Section 13 of
Article II of the Original Indenture as amended, the principal amount of
Bonds of the Second 2037 Series which may be authenticated and delivered
hereunder is limited to $250,000,000 aggregate principal
amount.
SECTION
2. Bonds of
the Second 2037 Series, in the aggregate principal amount permitted in
Section 1 of this Part II, may at any time subsequent to the execution
hereof be executed by the Company and delivered to the Trustee and shall be
authenticated by the Trustee and delivered (either before or after the recording
hereof) to or upon the order of the Company evidenced by a writing or writings,
signed by its President or one of its Vice Presidents and its Treasurer or one
of its Assistant Treasurers, at such time or times as may be requested by the
Company subsequent to the receipt by the Trustee of:
(1) the
certified resolution and the officers’ certificate required by Section 3(a) and
Section 3(b) of Article III of the Original Indenture as
amended;
(2) the
opinion of counsel required by Section 3(c) of Article III of the Original
Indenture as amended;
(3) cash, if
any, in the amount required to be deposited by Section 3(d) of Article III
of the Original Indenture as amended, which shall be held and applied by the
Trustee as provided in said Section 3(d);
(4) the
officer’s certificate required by Section 7(a) of Article III of the Original
Indenture as amended; and
(5) the
certificates and opinions required by Article XVIII of the Original Indenture as
amended.
PART
III.
Redemption
and Cancellation of Bonds.
SECTION
1. Bonds of
the Second 2037 Series shall not be redeemable except on the respective dates,
in the respective principal amounts and for the respective redemption prices
that correspond to the redemption dates for, the principal amounts to be
redeemed of, and the redemption prices for, the Senior Notes of 2037
Series. Otherwise, the Bonds of the Second 2037 Series shall not be
redeemable except as set forth in Section 2 herein.
In the event the Company redeems or delivers to the
Senior Note Trustee for cancellation any Senior Notes of 2037 Series prior to
maturity in accordance with the provisions of the Senior Note Indenture, Bonds
of the Second 2037 Series in principal amounts corresponding to the Senior Notes
of 2037 Series so redeemed or cancelled shall be deemed to have been redeemed,
and the Senior Note Trustee is required to deliver to the Company Bonds of the
Second 2037 Series so redeemed, all as provided in Section 1308 of the Senior
Note Indenture. The Company agrees to give the Trustee written notice of any
such redemption of the Senior Notes of 2037 Series on or before the date fixed
for any such redemption. The Senior Note Trustee, as holder of all
Bonds of the Second 2037 Series then outstanding, shall be deemed to have waived
notice of any such redemption of such Bonds of the Second 2037
Series.
SECTION
2. Upon the
occurrence of an Event of Default under the Senior Note Indenture and the
acceleration of the Senior Notes of 2037 Series pursuant to Section 802(a) or
802(b) thereof, the Company shall redeem the Bonds of the Second 2037 Series in
whole upon receipt by the Company of a written demand (hereinafter called a
“Redemption Demand”) from the Senior Note Trustee stating that there has
occurred under the Senior Note Indenture both an Event of Default and a
declaration of acceleration of payment of principal, accrued interest and
premium, if any, on the Senior Notes of 2037 Series pursuant to Section 802(a)
or 802(b) thereof, specifying the last date to which interest on such notes has
been paid or deemed paid (such date being hereinafter referred to as the
“Initial Interest Accrual Date”) and demanding redemption of Bonds of the Second
2037 Series. Each 2037 Series Redemption Demand also shall constitute
a waiver by the Senior Note Trustee, as holder of all Bonds of the Second 2037
Series then outstanding, of notice of redemption of the Bonds of the Second 2037
Series. The Company waives any right it may have to prior
notice of such redemption under the Original Indenture as
amended. Upon presentation of the Bonds of the Second 2037 Series by
the Senior Note Trustee to the Trustee, the Bonds of the Second 2037 Series
shall be redeemed at a redemption price equal to the principal amount thereof
plus accrued interest thereon from the Initial Interest Accrual Date to the date
of the Redemption Demand; provided, however, that in the event of a rescission
of acceleration of Senior Notes of 2037 Series pursuant to Section 802(e) of the
Senior Note Indenture, then any Redemption Demand shall thereby be deemed to be
rescinded by the Senior Note Trustee; but no such rescission or annulment shall
extend to or affect any subsequent default or impair any right consequent
thereon.
SECTION
3. As
provided in Section 1303 of the Senior Note Indenture, from and after the
Release Date (as defined in the Senior Note Indenture), the obligations of the
Company with respect to the Bonds of the Second 2037 Series shall be deemed to
be satisfied and discharged, the Bonds of the Second 2037 Series shall cease to
secure in any manner the Senior Notes of 2037 Series or any other senior notes
outstanding under the Senior Note Indenture and, pursuant to Section 1308 of the
Senior Note Indenture, the Senior Note Trustee shall forthwith deliver the Bonds
of the Second 2037 Series to the Company or the Trustee (as directed by Company
Order (as defined in the Senior Note Indenture)).
SECTION
4. All Bonds
delivered to or redeemed by the Trustee pursuant to the provisions of this Part
III shall forthwith be cancelled.
PART
IV.
The
Company hereby covenants, warrants and agrees that so long as any Bonds of the
Second 2037 Series are outstanding:
SECTION
1. The
Company will not withdraw, pursuant to the provisions of Section 2 of
Article VIII of the Original Indenture as amended, any moneys held by the
Trustee as part of the trust estate in excess of an amount equal to the
aggregate principal amount of such of the refundable Bonds as were theretofore
issued by the Company; and that upon any such withdrawal by the Company
refundable Bonds equal in aggregate principal amount to the amount so withdrawn
shall be deemed to have been made the basis of such
withdrawal.
SECTION
2. Property
additions purchased, constructed or otherwise acquired on or before
December 31, 1946 shall not be made the basis for the authentication and
delivery of Bonds, or the withdrawal of cash, or the reduction of the amount of
cash required to be paid to the Trustee under any provision of the
Indenture.
PART
V.
Amendment
of Indenture to Permit Qualification
The
Company and the Trustee, from time to time and at any time, without any vote or
consent of the holders of the Bonds of the Second 2037 Series, may enter into
such indentures supplemental to the Original Indenture as may or shall by them
be deemed necessary or desirable to add to or modify or amend any of the
provisions of the Original Indenture so as to permit the qualification of the
Original Indenture under the Trust Indenture Act of 1939.
Except to
the extent specifically provided herein, no provision of this Supplemental
Indenture is intended to modify, and the parties hereto do hereby adopt and
confirm, the provisions of Section 318(c) of the Trust Indenture Act of 1939
which amend and supersede provisions of the Original Indenture, as supplemented,
in effect prior to November 15, 1990.
PART
VI.
The
Trustee.
The
Trustee hereby accepts the trusts hereby declared and provided and agrees to
perform the same upon the terms and conditions in the Original Indenture as
amended set forth and upon the following terms and conditions:
The
Trustee shall not be responsible in any manner whatsoever for or in respect of
the validity or sufficiency of this Supplemental Indenture or the due execution
hereof by the Company or for or in respect of the recitals contained herein, all
of which recitals are made by the Company solely. In general, each
and every term and condition contained in Article XIII of
the
Original Indenture as amended shall apply to this Supplemental Indenture with
the same force and effect as if the same were herein set forth in full, with
such omissions, variations and modifications thereof as may be appropriate to
make the same conform to this Supplemental Indenture.
PART
VII.
Miscellaneous
Provisions.
This
Supplemental Indenture may be simultaneously executed in any number of
counterparts, each of which when so executed shall be deemed to be an original;
but such counterparts shall together constitute but one and the same
instrument.
The Company hereby constitutes and appoints Anthony J.
Kamerick, one of its Vice Presidents, to be its true and lawful
attorney-in-fact, for it and in its name to appear before any officer authorized
by law to take and certify acknowledgments of deeds to be recorded in the
District of Columbia, in the State of Maryland, in the Commonwealth of Virginia,
and in the Commonwealth of Pennsylvania and to acknowledge and deliver these
presents as the act and deed of said Company.
The Bank
of New York, hereby constitutes and appoints Cheryl L. Clarke, one of its Vice
Presidents, to be its true and lawful attorney-in-fact, for it and in its name
to appear before any officer authorized by law to take and certify
acknowledgments of deeds to be recorded in the District of Columbia, in the
State of Maryland, in the Commonwealth of Virginia, and in the Commonwealth of
Pennsylvania and to acknowledge and deliver these presents as the act and deed
of said The Bank of New York.
IN WITNESS WHEREOF, said Potomac Electric Power Company
has caused this Supplemental Indenture to be executed on its behalf by its
President or one of its Vice Presidents and its corporate seal to be hereto
affixed and said seal and this Supplemental Indenture to be attested by its
Secretary or one of its Assistant Secretaries; and said The Bank of New York, in
evidence of its acceptance of the trust hereby created, has caused this
Supplemental Indenture to be executed on its behalf by one of its Vice
Presidents, and its corporate seal to be hereto affixed and said seal and this
Supplemental Indenture to be attested by one of its Vice Presidents, all as of
the 24th day of
March, two thousand eight.
|
Potomac
Electric Power Company
|
(Corporate
Seal)
|
By /s/
A. J.
KAMERICK
|
|
Anthony
J. Kamerick
Vice
President
|
Attested:
|
|
/s/ ELLEN S.
ROGERS
|
|
Ellen
Sheriff Rogers
Secretary
Signed,
sealed and delivered by
Potomac
Electric Power Company in
the
presence of:
|
|
/s/ PAMELA
HOLMAN
|
|
|
|
As
Witnesses
|
|
|
The
Bank of New York, as Trustee
|
(Corporate
Seal)
|
By /s/ CHERYL L.
CLARKE
|
Attested:
|
Cheryl
L. Clarke
Vice
President
|
/s/ MARY
LaGUMINA
|
|
Mary
LaGumina
Vice
President
Signed,
sealed and delivered by The
Bank
of New York in the presence
of:
|
|
/s/ REMO
REALE
|
|
/s/ EVA
HO
|
|
As
Witnesses
|
|
City of
Washington,
District
of
Columbia, ss.:
I, Linda
Epperly, a Notary Public in and for the District of Columbia, United States of
America, do hereby certify that Anthony J. Kamerick and Ellen Sheriff Rogers,
whose names as Vice President and Secretary, respectively, of Potomac Electric
Power Company, a corporation, are signed to the foregoing and hereto attached
deed, bearing date as of the 24th day of
March, 2008, personally appeared this day before me in my District aforesaid and
acknowledged themselves to be, respectively, a Vice President and the Secretary
of Potomac Electric Power Company, and that they as such, being authorized so to
do, executed the said deed by signing the name of Potomac Electric Power Company
by Anthony J. Kamerick, as Vice President, and attested by Ellen Sheriff Rogers,
as Secretary, and acknowledged the same before me in my District aforesaid and
acknowledged the foregoing instrument to be the act and deed of Potomac Electric
Power Company.
Given
under my hand and official seal this 24th day of
March, 2008.
(Notarial
Seal)
/s/
LINDA J.
EPPERLY
Notary
Public
District
of Columbia
City of
Washington,
District
of
Columbia, ss.:
I, Linda
Epperly, a Notary Public in and for the District of Columbia, United States of
America, do hereby certify that Anthony J. Kamerick, a Vice President of Potomac
Electric Power Company, a corporation, one of the parties to the foregoing
instrument bearing date as of the 24th day of
March, 2008, and hereto annexed, this day personally appeared before me in the
City of Washington, the said Anthony J. Kamerick being personally well known to
me as the person who executed the said instrument as a Vice President of and on
behalf of said Potomac Electric Power Company and known to me to be the
attorney-in-fact duly appointed therein to acknowledge and deliver said
instrument on behalf of said corporation, and, as such attorney-in-fact, he
acknowledged said instrument to be the act and deed of said Potomac Electric
Power Company, and delivered the same as such. I further certify that the said
Anthony J. Kamerick, being by me duly sworn, did depose and say that he knows
the seal of said corporation; that the seal affixed to said instrument is such
corporate seal and was so affixed by order of the Board of Directors of said
corporation; and that he signed his name thereto by like order.
Given
under my hand and official seal this 24th day of
March, 2008.
(Notarial
Seal)
/s/
LINDA J.
EPPERLY
Notary
Public
District
of Columbia
City of
New York,
State of
New
York, ss.:
I, Carlos
R. Luciano, a Notary Public in and for the City of New York, State of New York,
do hereby certify that Cheryl L. Clarke and Mary LaGumina, whose names as Vice
Presidents, of The Bank of New York, a New York banking corporation, are signed
to the foregoing and hereto attached deed, bearing date as of the 24th day of
March, 2008, personally appeared before me this day in the State aforesaid and
acknowledged themselves to be, each, a Vice President of The Bank of New York,
and that they as such, being authorized so to do, executed the said deed by
signing the name of The Bank of New York, by Cheryl L. Clarke as Vice President,
and attested by Mary LaGumina, as Vice President, and acknowledged the same
before me in the State aforesaid and acknowledged the foregoing instrument to be
the act and deed of The Bank of New York, as therein set forth.
Given
under my hand and official seal this 24th day of
March, 2008.
(Notarial
Seal)
|
/s/
CARLOS R.
LUCIANO
Notary
Public
New
York, New York
|
|
My
Commission Expires:_______________________
|
|
CARLOS
R. LUCIANO
Notary
Public, State of New York
No.
41-4765897
Qualified
in Queen County
|
City of
New York,
State of
New
York, ss.:
Cheryl L. Clarke, of full age, being sworn according to
law, on his oath deposes and says that she is a Vice President of The Bank of
New York, the Trustee named in the foregoing Supplemental Indenture, dated as of
the 24th day of
March, 2008, that she is the agent of said Trustee for the purpose of perfecting
such Supplemental Indenture and that the consideration in the Original Indenture
referred to therein and in all indentures supplemental to said Original
Indenture, including the foregoing Supplemental Indenture, is true and bona fide
as therein set forth.
Subscribed
and sworn to before me this 24th day of
March, 2008.
(Notarial
Seal)
|
/s/
CARLOS R.
LUCIANO
Notary
Public
New
York, New York
|
|
My
Commission Expires:_______________________
|
|
CARLOS
R. LUCIANO
Notary
Public, State of New York
No.
41-4765897
Qualified
in Queen County
|
City of
New York,
State of
New
York, ss.:
I, Carlos
R. Luciano, a Notary Public in and for the City of New York, State of New York,
do hereby certify that Cheryl L. Clarke a Vice President of The Bank of New
York, a New York banking corporation, one of the parties to the foregoing
instrument bearing date as of the 24th day of
March, 2008, and hereto annexed, this day personally appeared before me in the
City of New York, the said Cheryl L. Clarke, being personally well known to me
as the person who executed the said instrument as a Vice President of and on
behalf of said The Bank of New York, and known to me to be the attorney-in-fact
duly appointed therein to acknowledge and deliver said instrument on behalf of
said corporation, and, as such attorney-in-fact, she acknowledged said
instrument to be the act and deed of said The Bank of New York, and delivered
the same as such. I further certify that the said Cheryl L. Clarke,
being by me duly sworn, did depose and say that she knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal and
was so affixed by order of the Board of Directors of said corporation; and that
she signed her name thereto by like order.
Given
under my hand and official seal this 24th day of
March, 2008.
(Notarial
Seal)