Exhibit 1 |
__________________________________________________________
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POTOMAC ELECTRIC POWER COMPANY (a District of Columbia and Virginia corporation) |
4.650% Senior Notes due 2014
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PURCHASE AGREEMENT |
Dated: March 15, 2004 |
__________________________________________________________
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__________________________________________________________ |
Table of Contents |
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Page |
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SECTION 1. Representations and Warranties. |
2 |
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(a) |
Representations and Warranties by the Company. |
2 |
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(i) |
Compliance with Registration Requirements. |
3 |
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(ii) |
Incorporated Documents. |
3 |
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(iii) |
Independent Accountants. |
3 |
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(iv) |
Financial Statements. |
3 |
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(v) |
No Material Adverse Change in Business. |
4 |
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(vi) |
Good Standing of the Company. |
4 |
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(vii) |
No Significant Subsidiaries. |
4 |
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(viii) |
Capitalization. |
4 |
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(ix) |
Authorization of Agreement. |
4 |
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(x) |
Authorization of the Indenture. |
4 |
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(xi) |
Authorization of the Securities. |
4 |
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(xii) |
Authorization of the Mortgage. |
5 |
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(xiii) |
Authorization of the Collateral Bonds. |
5 |
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(xiv) |
Description of the Securities, the Indenture, the Collateral Bonds and the Mortgage. |
5 |
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(xv) |
Absence of Defaults and Conflicts. |
5 |
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(xvi) |
Absence of Labor Dispute. |
6 |
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(xvii) |
Absence of Proceedings. |
6 |
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(xviii) |
Accuracy of Exhibits. |
6 |
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(ix) |
Absence of Further Requirements. |
6 |
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(x) |
Possession of Licenses and Permits. |
6 |
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(xi) |
Title to Property and Mortgaged Property. |
7 |
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(xii) |
Lien of Mortgage. |
7 |
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(xiii) |
Leases. |
7 |
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(xiv) |
Investment Company Act. |
8 |
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(xv) |
Environmental Laws. |
8 |
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(xvi) |
Internal Controls. |
8 |
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(b) |
Officer's Certificates. |
9 |
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SECTION 2. Sale and Delivery to Underwriters; Closing. |
9 |
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(a) |
Securities. |
9 |
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(b) |
Payment. |
9 |
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(c) |
Denominations; Registration. |
9 |
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(d) |
Delivery of Global Securities. |
9 |
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SECTION 3. Covenants of the Company. |
9 |
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(a) |
Compliance with Securities Regulations and Commission Requests. |
9 |
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(b) |
Delivery of Registration Statements. |
10 |
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(c) |
Delivery of Prospectuses. |
10 |
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(d) |
Continued Compliance with Securities Laws. |
10 |
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(e) |
Review of Amendments and Supplements. |
11 |
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(f) |
Blue Sky Qualifications. |
11 |
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(g) |
Rule 158. |
11 |
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(h) |
Use of Proceeds . |
11 |
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(i) |
Restriction on Sale of Securities. |
12 |
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(j) |
Reporting Requirements. |
12 |
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I
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SECTION 4. Payment of Expenses. |
12 |
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(a) |
Expenses. |
12 |
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(b) |
Termination of Agreement. |
12 |
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SECTION 5. Conditions of Underwriters' Obligations. |
12 |
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(a) |
Effectiveness of Registration Statement. |
12 |
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(b) |
Opinions of Counsel for Company. |
13 |
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(c) |
Opinion of Counsel for Underwriters. |
13 |
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(d) |
Officers' Certificate. |
13 |
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(e) |
Accountant's Comfort Letter. |
13 |
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(f) |
Additional Documents. |
13 |
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(g) |
Termination of Agreement. |
13 |
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SECTION 6. Indemnification. |
14 |
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(a) |
Indemnification of Underwriters. |
14 |
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(b) |
Indemnification of Company, Directors and Officers. |
14 |
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(c) |
Actions against Parties; Notification. |
14 |
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SECTION 7. Contribution. |
15 |
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SECTION 8. Representations, Warranties and Agreements to Survive. |
16 |
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SECTION 9. Termination of Agreement. |
16 |
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(a) |
Termination; General. |
16 |
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(b) |
Liabilities. |
17 |
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SECTION 10. Default by One or More of the Underwriters. |
17 |
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SECTION 11. Notices. |
17 |
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SECTION 12. Parties. |
17 |
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SECTION 13. GOVERNING LAW AND TIME. |
18 |
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SECTION 14. Counterparts. |
18 |
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SECTION 15. Effect of Headings. |
18 |
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SCHEDULES |
Sch A-1 |
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Schedule A - List of Underwriters. |
Sch B-1 |
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Schedule B - Pricing Information. |
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EXHIBITS |
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Exhibit A - Form of Opinion of Kirk J. Emge, Esq. |
A-1 |
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Exhibit B - Form of Opinion of Covington & Burling. |
B-1 |
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Ii
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Execution Copy |
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POTOMAC ELECTRIC POWER COMPANY (a District of Columbia and Virginia corporation) $175,000,000 4.650% Senior Notes due 2014 $100,000,000 5.750% Senior Notes due 2034 PURCHASE AGREEMENT |
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March 15, 2004 |
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CREDIT SUISSE FIRST BOSTON LLC
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MERRILL LYNCH & CO.
As Representatives of the Several Underwriters |
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Ladies and Gentlemen: |
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Potomac Electric Power Company, a District of Columbia and Virginia corporation (the "Company"), confirms its agreement with Credit Suisse First Boston LLC ("CSFB") and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") and each of the other Underwriters named in Schedule A hereto (collectively, the "Underwriters", which term shall also include any underwriter substituted as hereinafter provided in Section 10 hereof), for whom CSFB and Merrill Lynch are acting as representatives (in such capacity, the "Representatives"), with respect to the issue and sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of the respective principal amounts set forth in said Schedule A of $175,000,000 in aggregate principal amount of the Company's 4.650% Senior Notes due April 15, 2014 (the "2014 Notes") and $100,000,000 in aggregate principal amount of the Company's 5.750% Senior Notes due April 15, 2034 (the "2034 Notes" and, together with the 2014 Notes, the "Securities"). |
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The Securities are to be issued under an indenture, dated as of November 17, 2003, between the Company and The Bank of New York, trustee (the "Trustee"), as supplemented by an officer's certificate, to be dated the Closing Time (as hereinafter defined), establishing the terms of the Securities, such indenture, as so supplemented, being hereinafter called the "Indenture". |
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Simultaneously with the issue and sale by the Company of the Securities, and as a condition to the purchase thereof by the Underwriters, the Company will issue and deliver to the Trustee $175,000,000 |
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__________________________________________________________ |
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in aggregate principal amount of its First Mortgage Bonds, 4.650% Collateral Series due 2014 and $100,000,000 in aggregate principal amount of its First Mortgage Bonds, 5.750% Collateral Series due 2034 (collectively, the "Collateral Bonds"). The Collateral Bonds are to be issued under the Mortgage and Deed of Trust, dated as of July 1, 1936, from the Company to The Bank of New York (successor in trust to The Riggs National Bank of Washington, D.C.), trustee (the "Mortgage Trustee"), as amended and supplemented by various instruments including the supplemental indenture, dated as of March 16, 2004 (the "Supplemental Indenture"), establishing the terms of the Collateral Bonds, such Mortgage and Deed of Trust, as so amended and supplemented, being hereinafter called the "Mortgage". |
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The Company understands that the Underwriters propose to make a public offering of the Securities promptly after this Agreement has been executed and delivered. |
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The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (No. 333-106209), for the registration of various securities, including the Securities, under the Securities Act of 1933, as amended (the "1933 Act"), and the offer and sale thereof from time to time in accordance with Rule 415 of the rules and regulations of the Commission under the 1933 Act (the "1933 Act Regulations"), and for the qualification of the Indenture and the Mortgage under the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such registration statement has been declared effective by the Commission. Such registration statement, including the exhibits and schedules thereto, at the time it became effective, is referred to herein as the "Registration Statement"; and the final prospectus and the final prospectus supplement relating to the offering of the Securities, in the forms first furnished to the Underwriters by the Company for use in connection with the offering of the Securities, are collectively referred to herein as the "Prospectus"; provided , however , that all references to the "Registration Statement" and the "Prospectus" shall also be deemed to include all documents filed pursuant to the Securities Exchange Act of 1934 (the "1934 Act") prior to the execution and delivery hereof which are incorporated therein by reference pursuant to Item 12 of Form S-3 under the 1933 Act. A "preliminary prospectus" shall be deemed to refer to (i) any prospectus used before the Registration Statement became effective and (ii) any prospectus that omitted information to be included upon pricing in a form of prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations and was used after the Registration Statement became effective and prior to the initial delivery of the Prospectus to the Underwriters by the Company. For purposes of this Purchase Agreement, all references to the Registration Statement, Prospectus or preliminary prospectus or to any amendment or supplement to any of the foregoing shall be deemed to include the copy of such document filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system ("EDGAR"). |
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All references in this Agreement to financial statements and schedules and other information which is "described", "disclosed", "referred to", "contained", "included" or "stated" in the Registration Statement, any preliminary prospectus or the Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated by reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any document under the 1934 Act which is incorporated by reference in the Registration Statement, such preliminary prospectus or the Prospectus, as the case may be. |
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SECTION 1. Representations and Warranties . |
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2
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At the time the Registration Statement became effective and at the Closing Time, the Registration Statement and any amendments and supplements thereto complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the rules and regulations of the Commission under the 1939 Act (the "1939 Act Regulations"), and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued and at the Closing Time, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to the Company in writing by any Underwriter expressly for use in the Registration Statement or Prospectus. |
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Each preliminary prospectus and the prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all material respects with the 1933 Act Regulations and each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. |
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(iv) Financial Statements . The financial statements, together with the respective schedules and notes relating thereto, included in the Registration Statement and the Prospectus, present fairly the financial position of the Company and its consolidated subsidiaries at the dates indicated and the statement of operations, stockholder's equity and cash flows of the Company and its consolidated subsidiaries for the periods specified; said financial statements have been prepared in conformity with generally accepted accounting principles ("GAAP") applied on a consistent basis throughout the periods involved, except as otherwise stated therein. The selected |
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3
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(xi) Authorization of the Securities . The Securities have been duly authorized by the Company and, at the Closing Time, will have been duly executed by the Company; and, when the Securities have been (A) authenticated and delivered by the Trustee under the Indenture and (B) issued and delivered by the Company against payment of the purchase price therefor as provided in this Agreement, the Securities will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, |
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4
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(xv) I Absence of Defaults and Conflicts . The Company is not in violation of its articles of incorporation or by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company is a party or by which it may be bound, or to which any of the property or assets of the Company is subject (collectively, "Agreements and Instruments") except for such defaults as have not resulted, and are not reasonably expected to result, in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities, and the Mortgage and the Collateral Bonds, and the consummation of the transactions contemplated herein (including the issuance and sale of the Securities, the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption "Use of Proceeds" and the issuance and delivery of the Collateral Bonds) and compliance by the Company with its obligations hereunder, under the Indenture, on the Securities, under the Mortgage and on the Collateral Bonds have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the |
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5
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(xx) Possession of Licenses and Permits . The Company possesses such permits, licenses, approvals, consents and other authorizations (collectively, "Governmental Licenses") issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by it and is in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to possess any such Governmental License or to comply therewith would not, singly or in the aggregate, have a Material Adverse |
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6
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7
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(A) The Company has devised and maintains in effect a system of "internal accounting controls" as contemplated in Section 13(b)(2)(B) of the 1934 Act ("Accounting Controls"). To the best knowledge of the Company, the Accounting Controls are effective in all material respects to perform the functions for which they were designed. |
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(B) The Company has established and maintains "disclosure controls and procedures" as such term is defined in Rule 13a-15(e) under the 1934 Act ("Disclosure Controls"). The effectiveness of such Disclosure Controls is evaluated by the Company's senior management on a quarterly basis, and, to the best knowledge of the Company, the Disclosure Controls are effective in all material respects to perform the functions for which they were established. |
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(ii) Based on the most recent evaluation of the Company's internal controls, all significant deficiencies in the design or operation of the internal controls which could adversely affect the Company's ability to record, process, summarize and report financial data required to be disclosed by the Company in its 1934 Act reports within the time periods specified in the 1934 Act Regulations, any material weaknesses in such internal controls and any fraud, whether or not material, that involves management or other employees who have a significant role in such internal controls have been identified and reported to the Company's auditors and the audit committee of the board of directors. |
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8
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SECTION 2. Sale and Delivery to Underwriters; Closing . |
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Payment shall be made to the Company by wire transfer of immediately available funds to a bank account designated by the Company, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Securities to be purchased by them. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Securities which it has agreed to purchase. CSFB, individually and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Securities to be purchased by any Underwriter whose funds have not been received by the Closing Time, but such payment shall not relieve such Underwriter from its obligations hereunder. |
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SECTION 3. Covenants of the Company . |
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9
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supplement to the Prospectus or for additional information with respect to the Registration Statement or the Prospectus, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. Following the execution and delivery of this Agreement, the Company will promptly file the Prospectus pursuant to Rule 424(b) and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment. |
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(i) The Company will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. |
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(ii) The Company will immediately notify the Representatives, and confirm such notice in writing, of (x) any filing made by the Company of information relating to the offering of the Securities with any securities exchange or any other regulatory body in the United States or any other jurisdiction and (y) prior to the completion of the distribution of the Securities by the Underwriters as evidenced by a notice in writing from CSFB on behalf of the Underwriters to the Company (the "Notice of Completion"), any material changes in or affecting the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries considered as one enterprise which (i) make any statement in the Registration Statement or the Prospectus false or misleading or (ii) are not disclosed in the Registration Statement or the Prospectus. |
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(iii) Upon any notification pursuant to clause (ii) above or if prior to delivery of the Notice of Completion any event shall occur as a result of which it is necessary, in the reasonable |
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10
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opinion of the Company or of the Underwriters (A) to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or (B) to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(e), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request. |
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(i) In the case of amendments or supplements to the Registration Statement or the Prospectus which are not to be effected by means of a filing with the Commission of a document to be incorporated by reference therein, and are to be made prior to the delivery of the Notice of Completion, the Company will not effect any such amendment or supplement without the consent of the Representatives on behalf of the Underwriters, such consent not to be unreasonably withheld or delayed. Neither the consent of the Representatives, nor the delivery of any such amendment or supplement by any Underwriter, shall constitute a waiver of any of the conditions set forth in Section 5 hereof. |
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(ii) In the case of amendments or supplements to the Registration Statement or the Prospectus which are to be effected by means of a filing with the Commission of a document to be incorporated by reference therein and are to be made prior to the delivery of the Notice of Completion, the Company will furnish to the Representatives on behalf of the Underwriters, at least 24 hours, or such shorter period as is reasonably required by the circumstances, prior to the filing thereof with the Commission, a draft of each such document. |
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(iii) CSFB on behalf of the Underwriters shall deliver to the Company a Notice of Completion promptly after the completion of the distribution of the Securities by the Underwriters. |
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11
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SECTION 4. Payment of Expenses . |
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12
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13
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SECTION 6. Indemnification . |
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(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; |
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(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any untrue statement or omission, or any alleged untrue statement or omission in either case of the nature described in clause (i) above; provided that any such settlement is effected with the written consent of the Company; and |
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(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by CSFB), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; |
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provided , however , that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto). |
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(c) Actions against Parties; Notification . Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in |
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14
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The relative benefits received by the Company on the one hand and the Underwriters on the other hand in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company and the total underwriting discount received by the Underwriters, in each case as set forth on the cover of the Prospectus bear to the aggregate initial public offering price of the Securities as set forth on such cover. |
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The relative fault of the Company on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. |
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The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, |
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15
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claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. |
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Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission. |
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No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. |
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For purposes of this Section 7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The Underwriters' respective obligations to contribute pursuant to this Section 7 are several in proportion to the principal amount of Securities set forth opposite their respective names in Schedule A hereto and not joint. |
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SECTION 9. Termination of Agreement . |
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16
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(a) if the number of Defaulted Securities does not exceed 10% of the aggregate principal amount of the Securities to be purchased hereunder, each of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or |
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(b) if the number of Defaulted Securities exceeds 10% of the aggregate principal amount of the Securities to be purchased hereunder, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter. |
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No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability in respect of its default. |
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In the event of any such default which does not result in a termination of this Agreement, either the Representatives or the Company shall have the right to postpone Closing Time for a period not exceeding seven days in order to effect any required changes in the Registration Statement or Prospectus or in any other documents or arrangements. As used herein, the term "Underwriter" includes any person substituted for an Underwriter under this Section 10. |
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17
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[signatures follow on next page] |
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18
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Underwriters and the Company in accordance with its terms. |
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CONFIRMED AND ACCEPTED,
CREDIT SUISSE FIRST BOSTON LLC
By:
MARY BETH MANDANAS
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Very truly yours,
By:
A. J. KAMERICK
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MERRILL LYNCH & CO.
By:
JEFF KULICK
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For themselves and as Representatives of the other Underwriters named in Schedule A hereto. |
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19
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SCHEDULE A |
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Name of Underwriter |
Principal
|
Principal
|
Credit Suisse First Boston LLC |
$ 56,875,000 |
$ 32,500,000 |
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
56,875,000 |
32,500,000 |
Fleet Securities, Inc. |
17,500,000 |
10,000,000 |
SunTrust Capital Markets, Inc. |
17,500,000 |
10,000,000 |
BNY Capital Markets, Inc. |
8,750,000 |
5,000,000 |
Citigroup Global Markets Inc. |
8,750,000 |
5,000,000 |
McDonald Investments Inc. |
8,750,000 |
5.000,000 |
Total |
$175,000,000 |
$100,000,000 |
Sch A-1
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SCHEDULE B |
POTOMAC ELECTRIC POWER COMPANY |
$175,000,000 |
4.650% Senior Notes due 2014 |
1. The initial public offering price of the 2014 Notes shall be 99.901% of the principal amount thereof, plus accrued interest, if any, from the date of issuance. |
2. The purchase price to be paid by the Underwriters for the 2014 Notes shall be 99.251% of the principal amount thereof. |
3. The interest rate on the 2014 Notes shall be 4.650% per annum. |
4. The 2014 Notes shall be redeemable as provided in the Prospectus. |
$100,000,000 |
5.750% Senior Notes due 2034 |
1. The initial public offering price of the 2034 Notes shall be 99.924% of the principal amount thereof, plus accrued interest, if any, from the date of issuance. |
2. The purchase price to be paid by the Underwriters for the 2034 Notes shall be 99.049% of the principal amount thereof. |
3. The interest rate on the 2034 Notes shall be 5.750% per annum. |
4. The 2034 Notes shall be redeemable as provided in the Prospectus. |
Sch B-1
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Exhibit A |
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Form of Opinion of Kirk J. Emge, Esq.
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I am General Counsel of Potomac Electric Power Company, a District of Columbia and Virginia corporation (the "Company"), and have acted as counsel to the Company in connection with the issuance and sale of $175,000,000 in aggregate principal amount of 4.650% Senior Notes due April 15, 2014 and $100,000,000 in aggregate principal amount of 5.750% Senior Notes due April 15, 2034 (collectively, the "Securities") pursuant the Purchase Agreement, dated March 15, 2004, among the Company and Credit Suisse First Boston LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated (the "Purchase Agreement"). The Securities will be issued under an indenture, dated as of November 17, 2003, between the Company and The Bank of New York, as Trustee (the "Indenture"). In connection with the issuance and sale by the Company of the Securities, the Company will issue and deliver to the Trustee $175,000,000 in aggregate principal amount of its First Mortgage Bonds, 4.650% Collateral Series due April 15, 2014 and $100,000,000 in aggregate principal amount of First Mortgage Bonds, 5.750% Collateral Series due April 15, 2034 (together, the "Collateral Bonds"). The Collateral Bonds will be issued under the Mortgage and Deed of Trust, dated as of July 1, 1936, from the Company to The Bank of New York (as successor trustee to The Riggs National Bank of Washington, D.C.), as trustee (the "Mortgage Trustee"), as amended and supplemented by various supplemental indentures including the supplemental indenture, dated as of March 16, 2004 (the "Supplemental Indenture"), establishing the terms of the Collateral Bonds (such Mortgage and Deed of Trust, as so amended and supplemented, the "Mortgage"). This opinion is being delivered to you in accordance with Section 5(b) of the Purchase Agreement. Capitalized terms not defined herein have the respective meanings set forth in the Purchase Agreement. |
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In connection with rendering the opinions set forth herein, I, or my representatives, have reviewed an executed copy of the Purchase Agreement and the Registration Statement on Form S-3, Registration No. 333-106209 (the "Registration Statement"). In addition, I, or my representatives, have reviewed the final prospectus, dated March 15, 2004 (the "Prospectus"), filed with the Securities and Exchange Commission (the "Commission") pursuant to Rule 424(b)(5) under the Securities Act of 1933, as amended (the "1933 Act"), the Indenture, the Mortgage, the Supplemental Indenture, a facsimile copy of the Securities furnished by the Trustee, and a facsimile copy of the Collateral Bonds furnished by the Mortgage Trustee. I, or my representatives, also have examined or caused to be examined originals, or copies that have been certified or otherwise identified to my or their satisfaction as being true copies, of such other instruments, certificates and other documents or records as I or they have deemed necessary or appropriate to enable me to render the opinions set forth below. In my or my representatives' review and examination, I or they have assumed the genuineness of all signatures, the authenticity of all documents submitted to me or them as originals, and the conformity to original documents of all documents submitted to me or them as copies. |
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Based upon the foregoing, and subject to the reservations and exceptions set forth herein, I am of the opinion that: |
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1. The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of each of the District of Columbia and the Commonwealth of Virginia. |
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2. The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under the Purchase Agreement. |
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3. The Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect. |
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4. All of the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable and, except for shares of issued and outstanding preferred stock, are owned by Pepco Holdings, Inc.; none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any securityholder of the Company. |
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5. The Purchase Agreement has been duly authorized, executed and delivered by the Company. |
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6. The Registration Statement has been declared effective under the 1933 Act; and, to the best of my knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under Section 8(d) of the 1933 Act and no proceedings for that purpose have been instituted by the Commission or are pending or threatened by the Commission. The Prospectus has been filed in the manner and within the time period required by Rule 424(b) under the 1933 Act. |
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7. The documents incorporated by reference in the Prospectus (other than the financial statements, including the notes thereto, financial schedules and other financial data included or incorporated by reference therein, or omitted therefrom, as to which I express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations. |
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8. Except as disclosed in the Prospectus, there is not pending or, to the best of my knowledge, threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any of its subsidiaries is a party, or to which the property of the Company or any of its subsidiaries is subject, before or brought by any court or governmental agency or body, domestic or foreign, which could reasonably be expected to result in a Material Adverse Effect, or which could reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in the Purchase Agreement or the performance by the Company of its obligations thereunder. |
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9. No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by the Purchase Agreement in connection with the offering, issuance, sale or delivery of the Securities and the Collateral Bonds by the Company, except such as have already been obtained or such as may be required under state securities laws. |
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10. The execution, delivery and performance of the Indenture, the Mortgage and the Purchase Agreement and the issuance and sale of the Securities and the issuance and delivery of the Collateral Bonds and compliance with the terms thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default or Repayment Event under, or result in the creation or imposition of any Lien (other than the Lien of the Mortgage and the Lien of the Indenture) upon any property or assets of the Company under, (i) any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Company or any subsidiary of the Company or any of their properties that in my experience customarily applies to transactions of the type contemplated by the Purchase Agreement, the Indenture and the Securities, (ii) any agreement or instrument to which the Company or any such subsidiary is a party or by which the Company or any such subsidiary is bound or to which any of the properties of the Company or any such subsidiary is subject, or (iii) the articles of |
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incorporation or by-laws of the Company or any such subsidiary, except, in the cases of clauses (i) and (ii) above, for any such breach, violation, or default that would not result in a Material Adverse Effect; and the Company has full corporate power and authority to authorize, issue and sell the Securities as contemplated by the Purchase Agreement. |
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11. The Company has good and marketable title to all real property owned by the Company and described in the Mortgage as subject to the lien thereof, subject only to such exceptions, defects and qualifications as do not (I) affect the value of any such properties that are material to the business of the Company in any material respect or (II) affect the use made or proposed to be made of such properties by the Company in any material respect; and the descriptions of all such property contained in the Mortgage, are adequate for purposes of the lien purported to be created by the Mortgage. |
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12. The Mortgage constitutes a valid first lien or charge, to the extent that it purports to be such, upon the interest held by the Company in its property covered by the Mortgage, subject only to such exceptions, defects, qualifications and other matters as may be permitted by the Mortgage and to such other matters as in my opinion do not materially affect the security for the Collateral Bonds. The Mortgage (except for the Supplemental Indenture) has been duly recorded, and the Supplemental Indenture has been duly filed for recordation as a mortgage of real estate, in the only counties in which any real property subject to the lien of the Mortgage is located, and all requisite steps will have been taken to perfect the security interest of the Mortgage in personal property of the Company; and all taxes and recording and filing fees required to be paid with respect to the execution, recording or filing of the Mortgage, the filing of financing statements and similar documents and the issuance of the Collateral Bonds will have been paid. |
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13. The Mortgage has been duly authorized, executed and delivered by the Company and constitutes a valid and binding instrument of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting mortgagees' and other creditors' rights and to general equity principles and except to the extent that the law of the jurisdictions in which the mortgaged property is located may limit or deny certain remedial provisions of the Mortgage. |
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14. The Collateral Bonds are in the form contemplated by the Mortgage, have been duly authorized and executed by the Company, and when (A) the Collateral Bonds have been (w) authenticated and delivered by the Mortgage Trustee under the Mortgage and (x) issued and delivered by the Company to the Trustee as provided in the Indenture and (B) the Securities have been (y) authenticated and delivered by the Trustee under the Indenture and (z) issued and delivered by the Company against payment of the purchase price therefor as provided in the Purchase Agreement, the Collateral Bonds will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, and will be entitled to the benefits of the Mortgage. |
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I am not passing upon and do not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus and make no representations that I have independently verified the accuracy, completeness or fairness of such statements, except insofar as such statements refer specifically to me. However, based on my examination of the Registration Statement and the Prospectus, on my general familiarity with the affairs of the Company and on my participation in conferences with officials and other representatives of, and other counsel for, the Company, with PricewaterhouseCoopers LLP, the independent accountants of the Company, and with your representatives and your counsel, I do not believe that the Registration |
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A-3
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Statement (except for financial statements, including the notes thereto, financial schedules and other financial data included or incorporated by reference therein or omitted therefrom, as to all of which I express no belief), at the time such Registration Statement became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except as aforesaid with respect to the Registration Statement), at the time the Prospectus was issued, contained, or the Prospectus (except as aforesaid w ith respect to the Registration Statement) at the Closing Time contains, an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. |
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My opinion in paragraphs 13 and 14 above are subject to the following limitations and qualifications: |
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I express no opinion as to: |
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(i) |
waivers of defenses or other rights or benefits bestowed by operation of law; |
(ii) |
releases or waivers of unmatured claims or rights; |
(iii) |
provisions requiring amendments and waivers to be in writing; |
(iv) |
provisions making notices effective even if not actually received; or |
(v) |
provisions purporting to make a party's determination conclusive. |
I am a member of the Bar of the District of Columbia and the Bar of the State of Maryland, and I express no opinion herein as to any law other than the laws of the District of Columbia, the State of Maryland, the Commonwealth of Virginia, the Commonwealth of Pennsylvania and the federal law of the United States. With respect to the laws of the Commonwealth of Virginia and the Commonwealth of Pennsylvania, I have received advice, satisfactory to me, from Virginia and Pennsylvania counsel admitted in such jurisdictions whom I deem fully competent to furnish such advice. |
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The opinions contained herein are rendered solely for your benefit and may not be relied on by any other person. The opinions expressed in this letter are limited to the matters set forth herein, and no opinion should be inferred beyond those opinions expressly stated. I assume no obligation to advise you of any facts that come to my attention, or any changes in law, subsequent to the date hereof. |
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A-4
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Exhibit B |
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Form of Opinion of Covington & Burling
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We have acted as special counsel to Potomac Electric Power Company, a District of Columbia and Virginia corporation (the "Company") in connection with the issuance and sale of $175,000,000 in aggregate principal amount of 4.650% Senior Notes due April 15, 2014 and $100,000,000 in aggregate principal amount of 5.750% Senior Notes due April 15, 2034 (together, the "Securities") pursuant the Purchase Agreement, dated March 15, 2004, among the Company and Credit Suisse First Boston LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated (the "Purchase Agreement"). The Securities will be issued under an indenture, dated as of November 17, 2003, between the Company and The Bank of New York, as Trustee (the "Indenture"). In connection with the issuance and sale by the Company of the Securities, the Company will issue and deliver to the Trustee $175,000,000 in aggregate principal amount of its First Mortgage Bonds, 4.650% Collateral Series due April 15, 2014 and $100,000,000 in aggregate principal amount of its First Mortgage Bonds, 5.750% Collateral Series due April 15, 2034 (collectively, the "Collateral Bonds"). The Collateral Bonds will be issued under the Mortgage and Deed of Trust, dated as of July 1, 1936, from the Company to The Bank of New York (as successor trustee to The Riggs National Bank of Washington, D.C.), as trustee (the "Mortgage Trustee"), as amended and supplemented by various supplemental indentures including the supplemental indenture, dated as of March 16, 2004 (the "Supplemental Indenture"), establishing the terms of the Collateral Bonds (such Mortgage and Deed of Trust, as so amended and supplemented, the "Mortgage"). This opinion is being delivered to you in accordance with Section 5(b) of the Purchase Agreement. Unless otherwise defined herein, capitalized terms used herein have the respective meanings provided in the Purchase Agreement. |
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We have reviewed: |
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(i) the Purchase Agreement; |
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(ii) a Registration Statement on Form S-3, Registration No. 333-106209 (the "Registration Statement"), registering the Securities for sale under the Securities Act of 1933, as amended (the "1933 Act"); |
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(iii) the final prospectus, dated March 15, 2004 (the "Prospectus") with respect to the offer and sale of the Securities, filed with the Securities and Exchange Commission (the "Commission") pursuant to Rule 424(b)(5) under the 1933 Act: |
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(iv) the Indenture; |
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(v) the Mortgage; |
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(vi) a facsimile copy of the Securities furnished by the Trustee; and |
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(vii) a facsimile copy of the Collateral Bonds furnished by the Mortgage Trustee. |
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We also have reviewed such corporate records, certificates and other documents, and such questions of law, as we have deemed necessary or appropriate for the purposes of rendering this opinion. |
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We have assumed that all signatures are genuine, that all documents submitted to us as originals are authentic and that all copies of documents submitted to us conform to the originals. We have assumed further that the Company is a corporation duly organized, validly existing and in good standing under the laws of the District of Columbia and the Commonwealth of Virginia and has all legal power and authority and has obtained all authorizations and approvals of governmental authorities necessary to issue and sell the Securities and execute, deliver and perform the Indenture, the Mortgage, the Securities and the Collateral Bonds. |
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We have made no investigation for the purpose of verifying the assumptions set forth herein. |
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Based upon the foregoing, and subject to the qualifications set forth below , we are of the opinion that : |
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1. The Purchase Agreement has been duly authorized, executed and delivered by the Company. |
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2. The Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors' rights and to general equity principles. The Indenture has been qualified under the Trust Indenture Act of 1939, as amended. |
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3. The Securities are in the form contemplated by the Indenture, have been duly authorized by the Company and, when the Securities have been executed by the Company and have been (A) authenticated and delivered by the Trustee under the Indenture and (B) issued and delivered by the Company against payment of the purchase price therefor as provided in the Purchase Agreement, the Securities will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, and will be entitled to the benefits of the Indenture. |
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4. The Supplemental Indenture has been duly authorized by the Company and has been duly executed and delivered by the Company. |
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5. The Mortgage constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting mortgagees' and other creditors' rights and to general equity principles and except to the extent that the law of the jurisdictions in which the mortgaged property is located may limit or deny certain remedial provisions of the Mortgage. |
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6. The Collateral Bonds are in the form contemplated by the Mortgage, have been duly authorized and executed by the Company, and when (A) the Collateral Bonds have been (w) authenticated and delivered by the Mortgage Trustee under the Mortgage and (x) issued and delivered by the Company to the Trustee as provided in the Indenture and (B) the Securities have been (y) authenticated and delivered by the Trustee under the Indenture and (z) issued and delivered by the Company against payment of the purchase price therefor as provided in the Purchase Agreement, the Collateral Bonds will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, |
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reorganization, moratorium and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, and will be entitled to the benefits of the Mortgage. |
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7. The descriptions of the Securities, the Indenture, the Collateral Bonds and the Mortgage contained in the Prospectus are accurate in all material respects. |
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8. The Registration Statement has been declared effective by the Commission under the 1933 Act; the Prospectus was filed with the Commission pursuant to Rule 424(b) on March __, 2004; and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened by the Commission. |
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9. The Registration Statement and the Prospectus, in each case excluding the documents incorporated by reference therein, as of their respective effective or issue dates (other than the financial statements, including the notes thereto, financial schedules and other financial and statistical data included therein or omitted therefrom, as to which we express no opinion) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. |
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10. The Company is not, and upon the issuance and sale of the Securities as herein contemplated and the application of the net proceeds therefrom as described in the Prospectus will not be, an "investment company" or an entity "controlled" by an "investment company" as such terms are defined in the Investment Company Act of 1940, as amended. |
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We are not passing upon and do not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus and make no representations that we have independently verified the accuracy, completeness or fairness of such statements, except as expressly set forth in paragraph 7 above and insofar as such statements refer specifically to us. However, based on our examination of the Registration Statement and the Prospectus and participation in conferences with your representatives and those of the Company, your counsel and the Company's accountants in connection with the offer and sale of the Securities, nothing which came to our attention in the course of such review has caused us to believe that the Registration Statement (except for financial statements, including the notes thereto, financial schedules and other financial [and statistical] data included or incorporated by reference therein or omitted therefrom, as to which we express no comment) at the time the Registration Statement became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except as aforesaid with respect to the Registration Statement), at the time the Prospectus was issued, contained, or the Prospectus (except as aforesaid with respect to the Registration Statement) at the Closing Time contains, an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. |
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Our opinions in paragraphs 2, 3, 5, and 6 above are subject to the following limitations and qualifications: |
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(a) We express no opinion as to: |
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waivers of defenses or other rights or benefits bestowed by operation of law; |
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(ii) |
releases or waivers of unmatured claims or rights; |
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(iii) |
provisions requiring amendments and waivers to be in writing; |
(iv) |
provisions making notices effective even if not actually received; or |
(v) |
provisions purporting to make a party's determination conclusive. |
(b) We express no opinion as to (i) the ownership of or title to any property, or as to the adequacy of any description of property or (ii) any security interest or lien or the perfection or priority thereof. |
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We do not express any opinion on any laws other than the laws of the State of New York and the District of Columbia, the Virginia Stock Corporation Act and the federal securities laws of the United States. |
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This opinion is given solely for your benefit and may not be disclosed to any other person without our written consent. This opinion may not be relied upon by any other person without our written consent. We assume no obligation to advise you of any facts that come to our attention, or any changes in law, subsequent to the date hereof. |
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Exhibit 4.3 |
POTOMAC ELECTRIC POWER COMPANY |
701 Ninth Street, N.W., Washington, D.C. |
TO |
THE BANK OF NEW YORK
101 Barclay Street, New York, NY
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Supplemental Indenture |
Dated as of March 16, 2004 |
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Supplemental to Mortgage and Deed of Trust |
Dated July 1, 1936 |
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FIRST MORTGAGE BONDS, 4.65% COLLATERAL SERIES DUE APRIL 15, 2014 |
FIRST MORTGAGE BONDS, 5.75% COLLATERAL SERIES DUE APRIL 15, 2034 |
______________________________________________________________________________ |
POTOMAC ELECTRIC POWER COMPANY SUPPLEMENTAL INDENTURE DATED AS OF MARCH 16, 2004
TABLE OF CONTENTS*
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PAGE |
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Parties |
1 |
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Recitals |
1 |
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PART I.
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SECTION 1. |
General description of Bonds of 2014 Series |
5 |
SECTION 2. |
Form of face of Bond of 2014 Series
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6
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SECTION 3. |
Denominations of Bonds of 2014 Series |
10 |
SECTION 4. |
Execution and form of temporary Bonds of 2014 Series |
10 |
B. Bonds of 2034 Series |
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SECTION 1. |
General description of Bonds of 2034 Series |
10 |
SECTION 2. |
Form of face of Bond of 2034 Series
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11
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SECTION 3. |
Denominations of Bonds of 2034 Series |
15 |
SECTION 4. |
Execution and form of temporary Bonds of 2034 Series |
15 |
PART II.
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SECTION 1. |
Limitation as to principal amount |
16 |
SECTION 2. |
Issue of Bonds |
16 |
PART III.
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SECTION 1. |
Bonds of 2014 Series redeemable |
16 |
______________________
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SECTION 2. |
Bonds of 2034 Series redeemable |
17 |
SECTION 3. |
2014 Series: Event of Default under Senior Note Indenture |
17 |
SECTION 4. |
2034 Series: Event of Default under Senior Note Indenture |
17 |
SECTION 5. |
Occurrence of Release Date |
18 |
SECTION 6. |
Cancellation |
18 |
PART IV.
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SECTION 1. |
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 |
18 |
SECTION 2. |
No property additions made on or prior to December 31, 1946 to be used for any purpose under the Indenture |
19 |
PART V.
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19 |
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PART VI.
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Acceptance of trusts by the Trustee |
19 |
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Trustee not responsible for validity of the Supplemental Indenture |
19 |
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PART VII.
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Execution of Supplemental Indenture in counterparts |
20 |
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Appointment of attorneys-in-fact by parties |
20 |
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Testimonium |
21 |
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Execution |
21 |
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Company's Acknowledgments |
23 |
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Trustee's Acknowledgments |
25 |
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______________________________________________________________________________
SUPPLEMENTAL INDENTURE, dated as of the 16th day of March, two thousand four (2004), 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 and November 17, 2003 have been heretofore entered into between the Company and the Trustee to provide, respectively, for the creation of the first through the sixty-fourth 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 |
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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); $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); $50,000,000 principal amount of Bonds of the 5-5/8% Series due 2003 (the fifty-fourth 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); $78,000,000 principal amount of Bonds of the 6-1/2% Series due 2008 (the fiftieth |
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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 5-7/8% Series due 2008 (the fifty-fifth series); $75,000,000 principal amount of Bonds of the 6-7/8% Series due 2024 (the fifty-sixth 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); $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 $200,000,000 principal amount of Bonds of the 4.95% Series due 2013 (the sixty-fourth 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 and November 17, 2003 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 on the basis of the net bondable value of property additions, upon compliance with the provisions of Section 4 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 a series of Senior Notes in the principal amount of $175,000,000, to be known as the |
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4.65% Senior Notes due April 15, 2014 (hereinafter called "Senior Notes of 2014 Series") and a series of Senior Notes in the principal amount of $100,000,000, to be known as the 5.75% Senior Notes due April 15, 2034 (hereinafter called "Senior Notes of 2034 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 2014 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 2014 Series, (ii) that have a stated maturity date that is the same as the stated maturity of the Senior Notes of 2014 Series, (iii) that bear interest at a rate equal to the interest rate borne by the Senior Notes of 2014 Series, (iv) that have interest payment dates that are the same as the interest payment dates of the Senior Notes of 2014 Series, (v) that contain the same redemption provisions as the Senior Notes of 2014 Series and (vi) that in all other material respects conform as nearly as is practicable to the terms of the Senior Notes of 2014 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 2034 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 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 |
WHEREAS, for such purposes the Company has determined to issue a (i) sixty-fifth series of Bonds under the Original Indenture as amended in the principal amount of $175,000,000, to be known as First Mortgage Bonds, 4.65% Collateral Series due April 15, 2014 (hereinafter called "Bonds of 2014 Series") and (ii) sixty-sixth series of Bonds under the Original Indenture as amended in the principal amount of $100,000,000, to be known as First Mortgage Bonds, 5.75% Collateral Series due April 15, 2034 (hereinafter called "Bonds of 2034 Series"); 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; |
NOW, THEREFORE, THIS INDENTURE WITNESSETH: |
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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. A. DESCRIPTION OF BONDS OF 2014 SERIES. |
SECTION 1. The Bonds of 2014 Series shall, subject to the provisions of Section 1 of Article II of the Original Indenture as amended, be designated as "First Mortgage Bonds, 4.65% Collateral Series due April 15, 2014" of the Company. The Bonds of 2014 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 2014 Series shall mature on April 15, 2014, and shall bear interest at the rate of four and sixty-five hundredths percent (4.65%) per annum, payable semiannually, commencing October 15, 2004 on the fifteenth day of April and the fifteenth day of October in each year (each such April 15 and October 15 being hereinafter called an "interest payment date") until the principal thereof is paid or made available for payment. The Bonds of 2014 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 2014 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 2014 Series in order to secure the Company's obligations under the Senior Notes of 2014 Series. The Bonds of 2014 Series shall not be assignable or transferable except as permitted or required by Section 1307 of the Senior Note Indenture. |
Upon any payment of the principal of, premium, if any, and interest on all or any portion of the Senior Notes of the 2014 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 Bonds of the 2014 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 Bonds of the 2014 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 |
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premium or interest on, the Senior Notes of the 2014 Series has not been so made and (ii) providing the details of such nonpayment. |
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Subject to the preceding paragraph, the interest payable on any interest payment date shall be paid to the persons in whose names the Bonds of 2014 Series are registered at the close of business on the first calendar day of the month in which such interest payment date occurs (hereinafter called the "record date"); provided, however, that interest payable at maturity will be paid to the person to whom principal is paid. If the Company shall default in the payment of any interest due on such interest payment date, such defaulted interest shall be paid to the persons in whose names the Bonds of 2014 Series are registered on the date of payment of such defaulted interest, or in accordance with the regulations of any securities exchange on which the Bonds of 2014 Series are listed. |
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Interest on the Bonds of 2014 Series will accrue from March 24, 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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SECTION 2. The Bonds of 2014 Series, and the Trustee's certificate to be endorsed on the Bonds of 2014 Series, shall be substantially in the following forms, respectively: |
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[FORM OF FACE OF BOND OF 2014 SERIES] |
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THIS BOND IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR TRUSTEE UNDER THE INDENTURE, DATED NOVEMBER 17, 2003, AS SUPPLEMENTED, BETWEEN POTOMAC ELECTRIC POWER COMPANY AND THE BANK OF NEW YORK, AS TRUSTEE |
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POTOMAC ELECTRIC POWER COMPANY
First Mortgage Bond, 4.65% Collateral Series Due April 15, 2014 |
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No. R- |
$ |
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 April 2014, in lawful money of the United States of America, and to and to pay interest on said principal sum semi-annually on April 15 and October 15 of each year |
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(each an "interest payment date"), commencing October 15, 2004, at the rate of 4.65% per annum, until the principal hereof is paid or made available for payment. Interest on this Bond will accrue from March 24, 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. 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 issue of senior notes under the Senior Note Indenture entitled Senior Notes, 4.65% Series due 2014 (the "Senior Notes of 2014 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 2014 Series. Payment of principal of, or premium, if any, or interest on, the Senior Notes of 2014 Series shall constitute payments on this Bond. |
Subject to the preceding paragraph, the interest payable on any interest payment date shall be paid to the persons 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 (hereinafter called the "record date"); provided, however, that interest payable at maturity will be paid to the person to whom principal is paid. If the Company shall default in the payment of any interest due on such interest payment date, such defaulted interest shall be paid to the person in whose name this Bond is registered on the date of payment of such defaulted interest, or in accordance with the regulations of any securities exchange on which this Bond is listed. |
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 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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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. |
This Bond is one of a series designated as the "First Mortgage Bonds, 4.65% Collateral Series due 2014" (herein called the "Bonds of 2014 Series") of the Company, issued under and secured by the Amended Indenture and all indentures supplemental thereto and described in the indenture (herein called the "New Supplemental Indenture"), dated as of March 16, 2004, between the Company and the Trustee, supplemental to the Amended Indenture. |
Upon any payment of the principal of, premium, if any, and interest on all or any portion of the Senior Notes of 2014 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 Bonds of 2014 Series shall be deemed to be satisfied and discharged. The Trustee may at anytime 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 Bonds of 2014 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 2014 Series has not been so made and (ii) providing the details of such nonpayment. |
This Bond is redeemable (i) on such dates, in such principal amounts and at the redemption prices as the corresponding Senior Notes of 2014 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 2014 Series as provided in Section 802(a) or 802(b) of the Senior Note 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 the 2014 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)). |
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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 2014 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 2014 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. |
B. DESCRIPTION OF BONDS OF 2034 SERIES. |
SECTION 1. The Bonds of 2034 Series shall, subject to the provisions of Section 1 of Article II of the Original Indenture as amended, be designated as "First Mortgage Bonds, 5.75% Collateral Series due April 15, 2034" of the Company. The Bonds of 2034 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 2034 Series shall mature on April 15, 2034, and shall bear interest at the rate of five and seventy-five hundredths percent (5.75%) per annum, payable semiannually, commencing October 15, 2004, on the fifteenth day of April and the fifteenth day of October in each year (each such April 15 and October 15 being hereinafter called an "interest payment date") until the principal thereof is paid or made available for payment. The Bonds of 2034 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. |
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Each Bond of 2034 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 2034 Series in order to secure the Company's obligations under the Senior Notes of 2034 Series. The Bonds of 2034 Series shall not be assignable or transferable except as permitted or required by Section 1307 of the Senior Note Indenture. |
Upon any payment of the principal of, premium, if any, and interest on all or any portion of the Senior Notes of the 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 Bonds of the 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 Bonds of the 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 the 2034 Series has not been so made and (ii) providing the details of such nonpayment. |
Subject to the preceding paragraph, the interest payable on any interest payment date shall be paid to the persons in whose names the Bonds of 2034 Series are registered at the close of business on the first calendar day of the month in which such interest payment date occurs (hereinafter called the "record date"); provided, however, that interest payable at maturity will be paid to the person to whom principal is paid. If the Company shall default in the payment of any interest due on such interest payment date, such defaulted interest shall be paid to the persons in whose names the Bonds of 2034 Series are registered on the date of payment of such defaulted interest, or in accordance with the regulations of any securities exchange on which the Bonds of 2034 Series are listed. |
Interest on the Bonds of 2034 Series will accrue from March 24, 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). |
SECTION 2. The Bonds of 2034 Series, and the Trustee's certificate to be endorsed on the Bonds of 2034 Series, shall be substantially in the following forms, respectively: |
[FORM OF FACE OF BOND OF 2034 SERIES] |
THIS BOND IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR TRUSTEE UNDER THE INDENTURE, DATED NOVEMBER 17, 2003, AS SUPPLEMENTED, BETWEEN POTOMAC ELECTRIC POWER COMPANY AND THE BANK OF NEW YORK, AS TRUSTEE |
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POTOMAC ELECTRIC POWER COMPANY
First Mortgage Bond, 5.75% Collateral Series Due April 15, 2034 |
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No. R- |
$ |
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 April 2034, in lawful money of the United States of America, and to and to pay interest on said principal sum semi-annually on April 15 and October 15 of each year (each an "interest payment date"), commencing October 15, 2004, at the rate of 5.75% per annum, until the principal hereof is paid or made available for payment. Interest on this Bond will accrue from March 24, 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. 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. |
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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 issue of senior notes under the Senior Note Indenture entitled Senior Notes, 5.75% Series due 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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Subject to the preceding paragraph, the interest payable on any interest payment date shall be paid to the persons 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 (hereinafter called the "record date"); provided, however, that interest payable at maturity will be paid to the person to whom principal is paid. If the Company shall default in the payment of any interest due on such interest payment date, such defaulted interest shall be paid to the person in whose name this Bond is registered on the date of payment of such defaulted interest, or in accordance with the regulations of any securities exchange on which this Bond is listed. |
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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. |
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 the 2034 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 2034 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 2034 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. |
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PART II. Issue of Bonds. |
SECTION 1. Except for Bonds of 2014 Series issued pursuant to Section 13 of Article II of the Original Indenture as amended, the principal amount of Bonds of 2014 Series which may be authenticated and delivered hereunder is limited to $175,000,000 aggregate principal amount. Except for Bonds of 2034 Series issued pursuant to Section 13 of Article II of the Original Indenture as amended, the principal amount of Bonds of 2034 Series which may be authenticated and delivered hereunder is limited to $100,000,000 aggregate principal amount. |
SECTION 2. Bonds of 2014 Series and Bonds of 2034 Series, in the respective aggregate principal amounts 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 certificates, instruments, opinions of counsel, prior lien bonds and cash, if any, required by Section 4 of Article III of the Original Indenture as amended, except that, as required by Part V of this Supplemental Indenture, 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 of 2014 Series or Bonds of 2034 Series; 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 2014 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 |
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redemption prices for, the Senior Notes of 2014 Series. Otherwise, the Bonds of 2014 Series shall not be redeemable except as set forth in Section 3 herein. |
In the event the Company redeems any Senior Notes of 2014 Series prior to maturity in accordance with the provisions of the Senior Note Indenture, Bonds of the 2014 Series in principal amounts corresponding to the Senior Notes of 2014 Series so redeemed shall be deemed to have been redeemed, and the Senior Note Trustee is required to deliver to the Company Bonds of the 2014 Series so redeemed, all as provided in Section 1308 of the Senior Note Indenture. The Company agrees to give the Trustee notice of any such redemption of the Senior Notes of 2014 Series on or before the date fixed for any such redemption. |
SECTION 2. Bonds of 2034 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 2034 Series. Otherwise, the Bonds of 2034 Series shall not be redeemable except as set forth in Section 4 herein. |
In the event the Company redeems any Senior Notes of 2034 Series prior to maturity in accordance with the provisions of the Senior Note Indenture, Bonds of the 2034 Series in principal amounts corresponding to the Senior Notes of 2034 Series so redeemed shall be deemed to have been redeemed, and the Senior Note Trustee is required to deliver to the Company Bonds of the 2034 Series so redeemed, all as provided in Section 1308 of the Senior Note Indenture. The Company agrees to give the Trustee notice of any such redemption of the Senior Notes of 2034 Series on or before the date fixed for any such redemption. |
SECTION 3. Upon the occurrence of an Event of Default under the Senior Note Indenture and the acceleration of the Senior Notes of 2014 Series pursuant to Section 802(a) or 802(b) thereof, the Company shall redeem the Bonds of 2014 Series in whole upon receipt by the Company of a written demand (hereinafter called a "2014 Series 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 2014 Series pursuant to Section 802(a) or 802(b) thereof, specifying the last date to which interest on such notes has been paid (such date being hereinafter referred to as the "2014 Series Initial Interest Accrual Date") and demanding redemption of the Bonds of 2014 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 2014 Series by the Senior Note Trustee to the Trustee, the Bonds of 2014 Series shall be redeemed at a redemption price equal to the principal amount thereof plus accrued interest thereon from the 2014 Series Initial Interest Accrual Date to the date of the 2014 Redemption Demand; provided, however, that in the event of a rescission of acceleration of Senior Notes of 2014 Series pursuant to Section 802(e) of the Senior Note Indenture, then any 2014 Series 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 4. Upon the occurrence of an Event of Default under the Senior Note Indenture and the acceleration of the Senior Notes of 2034 Series pursuant to Section 802(a) or 802(b) thereof, the Company shall redeem the Bonds of 2034 Series in whole upon receipt by the |
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Company of a written demand (hereinafter called a "2034 Series 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 2034 Series pursuant to Section 802(a) or 802(b) thereof, specifying the last date to which interest on such notes has been paid (such date being hereinafter referred to as the "2034 Series Initial Interest Accrual Date") and demanding redemption of the Bonds of 2034 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 2034 Series by the Senior Note Trustee to the Trustee, the Bonds of 2034 Series shall be redeemed at a redemption price equal to the principal amount thereof plus accrued interest thereon from the 2034 Series Initial Interest Accrual Date to the date of the 2034 Series Redemption Demand; provided, however, that in the event of a rescission of acceleration of Senior Notes of 2034 Series pursuant to Section 802(e) of the Senior Note Indenture, then any 2034 Series 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 5. 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 2014 Series shall be deemed to be satisfied and discharged, the Bonds of 2014 Series shall cease to secure in any manner the Senior Notes of 2014 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 2014 Series to the Company or the Trustee (as directed by Company Order (as defined in the Senior Note Indenture)). |
As provided in Section 1303 of the Senior Note Indenture, from and after the Release Date, the obligations of the Company with respect to the Bonds of 2034 Series shall be deemed to be satisfied and discharged, the Bonds of 2034 Series shall cease to secure in any manner the Senior Notes of 2034 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 2034 Series to the Company or the Trustee (as directed by Company Order). |
SECTION 6. All Bonds delivered to or redeemed by the Trustee pursuant to the provisions of this Part III shall forthwith be cancelled. |
PART IV. Additional Particular Covenants of the Company. |
The Company hereby covenants, warrants and agrees that so long as any Bonds of 2014 Series or Bonds of 2034 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 |
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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
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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 2014 Series or Bonds of 2034 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. |
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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 Ming Ryan, 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. |
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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 16th day of March, two thousand four. |
Potomac Electric Power Company |
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(Corporate Seal) |
By
A. J. KAMERICK
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Attested: |
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ELLEN SHERIFF ROGERS
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Signed, sealed and delivered by
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JANET L. PARKER |
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LINDA J. EPPERLY
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Signed, sealed and delivered by
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JANET L. PARKER |
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LINDA J. EPPERLY
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The Bank of New York, as Trustee |
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(Corporate Seal) |
By
MING RYAN
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Attested: |
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MARY LaGUMINA
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Signed, sealed and delivered by The
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REMO REALE |
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WILLLIAM J. CASSELS
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City of Washington,
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I, Lisa Poole, 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 16th day of March, 2004, 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. |
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Given under my hand and official seal this 16th day of March, 2004. |
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(Notarial Seal) |
LISA A. POOLE
My Commission Expires: July 31, 2007 |
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City of Washington,
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I, Lisa Poole, 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 16th day of March, 2004, 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. |
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Given under my hand and official seal this 16th day of March, 2004. |
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(Notarial Seal) |
LISA A. POOLE
My Commission Expires: July 31, 2007 |
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State of New York,
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I, Robert Hirsch, a Notary Public in and for the State of New York, United States of America, do hereby certify that Ming Ryan and Mary LaGumina, whose names as Vice Presidents of The Bank of New York, a corporation, are signed to the foregoing and hereto attached deed, bearing date as of the 16th day of March, 2004, personally appeared before me this day in the State of New York and acknowledged themselves to be, respectively, Vice Presidents 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 Ming Ryan 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. |
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Given under my hand and official seal this 16th day of March, 2004. |
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(Notarial Seal) |
ROBERT HIRSCH
My Commission Expires July 1, 2006. |
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State of New York,
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Ming Ryan, of full age, being sworn according to law, on her 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 16th day of March, 2004, 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. |
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Subscribed and sworn to before me
ROBERT HIRSCH
My Commission Expires July 1, 2006. (Notarial Seal) |
MING RYAN
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State of New York,
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I, Robert Hirsch, a Notary Public in and for the State of New York, United States of America, do hereby certify that Ming Ryan, a Vice President of The Bank of New York, a corporation, one of the parties to the foregoing instrument bearing date as of the 16th day of March, 2004, and hereto annexed, this day personally appeared before me in the State of New York, the said Ming Ryan, 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 Ming Ryan, 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. |
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Given under my hand and official seal this 16th day of March, 2004. |
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(Notarial Seal) |
ROBERT HIRSCH
My Commission Expires July 1, 2006. |
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CERTIFICATE OF RESIDENCE |
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The Bank of New York, Mortgagee and Trustee within named, hereby certifies that its precise residence is 101 Barclay Street, New York, NY 10286. |
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The Bank of New York
By:
MING RYAN
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Exhibit 5 |
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POTOMAC ELECTRIC POWER COMPANY|
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March 23, 2004 |
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Potomac Electric Power Company
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Ladies and Gentlemen: |
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I am General Counsel of Potomac Electric Power Company, a District of Columbia and Virginia corporation (the "Company"), and have acted as counsel to the Company in connection with the offer and sale by the Company of (i) $175,000,000 in aggregate principal amount of 4.65% Senior Notes due April 15, 2014 (the "Notes due 2014") and (ii) $100,000,000 in aggregate principal amount of 5.75% Senior Notes due April 15, 2034 (the "Notes due 2034" and, together with the Notes due 2014, the "Notes") under and pursuant to Registration Statement on Form S-3 (Registration No. 333-106209) (the "Registration Statement") under the Securities Act of 1933, as amended (the "Act"), which was declared effective by the Securities and Exchange Commission (the "Commission") on July 11, 2003, the Prospectus, dated July 11, 2003, included in the Registration Statement and a Prospectus Supplement dated March 15, 2004 and filed with Commission pursuant to Rule 424(b) under the Act on March 17, 2004, and the Purchase Agreement, dated March 15, 2004, between the Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated and Credit Suisse First Boston LLC, on their own behalf and on behalf of Fleet Securities, Inc., SunTrust Capital Markets, Inc., Citigroup Global Markets Inc., McDonald Investments Inc. and BNY Capital Markets, Inc., (the "Purchase Agreement"). The Notes will be issued under an indenture, dated as of November 17, 2003, between the Company and The Bank of New York, as Trustee (the "Indenture"). |
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In connection with this opinion, I, or my representatives, have examined originals, or copies certified or otherwise identified to my or their satisfaction, of such instruments, certificates, records and documents, and have reviewed such questions of law, as I have deemed necessary or appropriate for purposes of this opinion. In such examination, I or my representatives have assumed the genuineness of all signatures, the authenticity of all documents submitted to me or them as originals, the conformity to the original documents of all documents submitted as copies and the authenticity of the originals of such latter documents. As to any facts material to my opinion, I have relied upon the aforesaid instruments, certificates, records and documents and inquiries of the Company"s representatives. |
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Page 2 |
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Based upon the foregoing, I am of the opinion that the Notes have been duly authorized for issuance and, when executed by the Company and authenticated by the Trustee in the manner provided in the Indenture and delivered against payment of the purchase price therefor set forth in the Purchase Agreement, will be duly and validly issued and will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors" rights and to general equity principles. |
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I hereby consent to the filing of this opinion as an exhibit to a Current Report on Form 8-K that will be incorporated by reference into the Registration Statement. |
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Very truly yours,
/s/ KIRK J. EMGE
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__________________________________________________________ |