Exhibit 4
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CAROLINA POWER & LIGHT COMPANY
TO
THE BANK OF NEW YORK
(FORMERLY IRVING TRUST COMPANY)
AND
W.T. CUNNINGHAM
(SUCCESSOR TO FREDERICK G. HERBST, RICHARD H. WEST, J.A. AUSTIN, E.J.
MCCABE, G. WHITE, D.W. MAY, J.A. VAUGHAN, JOSEPH J. ARNEY AND WAFAA
ORFY)
AS TRUSTEES UNDER CAROLINA POWER &
LIGHT COMPANY'S MORTGAGE AND DEED
OF TRUST, DATED AS OF MAY 1, 1940
---------------
SIXTY-SECOND SUPPLEMENTAL INDENTURE
PROVIDING AMONG OTHER THINGS FOR
FIRST MORTGAGE BONDS, 5 7/8% SERIES DUE JANUARY 15, 2004
(SIXTY-FIFTH SERIES)
----------------
DATED AS OF JANUARY 15, 1994
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SIXTY-SECOND SUPPLEMENTAL INDENTURE
INDENTURE, dated as of January 15, 1994, by and between CAROLINA
POWER & LIGHT COMPANY, a corporation of the State of North Carolina, whose
post office address is 411 Fayetteville Street, Raleigh, North Carolina
27601-1768 (hereinafter sometimes called the Company), and THE BANK OF NEW
YORK (formerly Irving Trust Company), a corporation of the State of New
York, whose post office address is 101 Barclay Street, New York, New York
10286 (hereinafter sometimes called the Corporate Trustee), and W.T.
CUNNINGHAM (successor to Frederick G. Herbst, Richard H. West, J.A. Austin,
E.J. McCabe, G. White, D.W. May, J.A. Vaughan, Joseph J. Arney and Wafaa
Orfy), whose post office address is 3 Arlington Drive, Denville, New Jersey
07834 (the Corporate Trustee and the Individual Trustee being hereinafter
together sometimes called the Trustees), as Trustees under the Mortgage and
Deed of Trust, dated as of May 1, 1940 (hereinafter called the Mortgage),
which Mortgage was executed and delivered by the Company to Irving Trust
Company (now The Bank of New York) and Frederick G. Herbst to secure the
payment of bonds issued or to be issued under and in accordance with the
provisions of the Mortgage, reference to which Mortgage is hereby made,
this Indenture (hereinafter sometimes called the Sixty-second Supplemental
Indenture) being supplemental thereto:
WHEREAS, the Mortgage was recorded in various Counties in the
States of North Carolina and South Carolina; and
WHEREAS, the Mortgage was indexed and cross-indexed in the real
and chattel mortgage records in various Counties in the States of North
Carolina and South Carolina; and
WHEREAS, an instrument, dated as of June 25, 1945, was executed
by the Company appointing Richard H. West as Individual Trustee in
succession to said Frederick G. Herbst (deceased) under the Mortgage, and
by Richard H. West accepting said appointment, which instrument was
recorded in various Counties in the States of North Carolina and South
Carolina; and
WHEREAS, an instrument, dated as of December 12, 1957, was
executed by the Company appointing J.A. Austin as Individual Trustee in
succession to said Richard H. West (resigned) under the Mortgage, and by
J.A. Austin accepting said appointment, which instrument was recorded in
various Counties in the States of North Carolina and South Carolina; and
WHEREAS, an instrument, dated as of April 15, 1966, was executed
by the Company appointing E.J. McCabe as Individual Trustee in succession
to said J.A. Austin (resigned) under the Mortgage, and by E.J. McCabe
accepting said appointment, which instrument was recorded in various
Counties in the States of North Carolina and South Carolina; and
WHEREAS, by the Seventeenth Supplemental Indenture mentioned
below, the Company, among other things, appointed G. White as Individual
Trustee in succession to said E.J. McCabe (resigned), and G. White accepted
said appointment; and
WHEREAS, by the Nineteenth Supplemental Indenture mentioned
below, the Company, among other things, appointed D.W. May as Individual
Trustee in succession to said G. White (resigned), and D.W. May accepted
said appointment; and
WHEREAS, by the Thirty-fifth Supplemental Indenture mentioned
below, the Company, among other things, appointed J.A. Vaughan as
Individual Trustee in succession to said D.W. May (resigned), and J.A.
Vaughan accepted said appointment; and
WHEREAS, an instrument, dated as of June 27, 1988, was executed
by the Company appointing Joseph J. Arney as Individual Trustee in
succession to said J.A. Vaughan (resigned) under the Mortgage, and by
Joseph J. Arney accepting said appointment, which instrument was recorded
in various Counties in the States of North Carolina and South Carolina; and
WHEREAS, by the Forty-fifth Supplemental Indenture mentioned
below, the Company, among other things, appointed Wafaa Orfy as Individual
Trustee in succession to said Joseph J. Arney (resigned), and Wafaa Orfy
accepted said appointment; and
WHEREAS, by the Forty-ninth Supplemental Indenture mentioned
below, the Company, among other things, appointed W.T. Cunningham as
Individual Trustee in succession to said Wafaa Orfy (resigned), and W.T.
Cunningham accepted said appointment; and
WHEREAS, such instruments were indexed and cross-indexed in the
real and chattel mortgage records in various Counties in the States of
North Carolina and South Carolina; and
WHEREAS, by the Mortgage, the Company covenanted that it would
execute and deliver such supplemental indenture or indentures and such
further instruments and do such further acts as might be necessary or
proper to carry out more effectually the purposes of the Mortgage and to
make subject to the lien of the Mortgage any property thereafter acquired
intended to be subject to the lien thereof; and
WHEREAS, for said purposes, among others, the Company executed
and delivered to the Trustees the following supplemental indentures:
DESIGNATION DATED AS OF
----------- -----------
First Supplemental Indenture January 1, 1949
Second Supplemental Indenture December 1, 1949
Third Supplemental Indenture February 1, 1951
Fourth Supplemental Indenture October 1, 1952
Fifth Supplemental Indenture March 1, 1958
Sixth Supplemental Indenture April 1, 1960
Seventh Supplemental Indenture November 1, 1961
Eighth Supplemental Indenture July 1, 1964
Ninth Supplemental Indenture April 1, 1966
Tenth Supplemental Indenture October 1, 1967
Eleventh Supplemental Indenture October 1, 1968
Twelfth Supplemental Indenture January 1, 1970
Thirteenth Supplemental Indenture August 1, 1970
Fourteenth Supplemental Indenture January 1, 1971
Fifteenth Supplemental Indenture October 1, 1971
Sixteenth Supplemental Indenture May 1, 1972
Seventeenth Supplemental Indenture May 1, 1973
Eighteenth Supplemental Indenture November 1, 1973
Nineteenth Supplemental Indenture May 1, 1974
Twentieth Supplemental Indenture December 1, 1974
Twenty-first Supplemental Indenture April 15, 1975
Twenty-second Supplemental Indenture October 1, 1977
Twenty-third Supplemental Indenture June 1, 1978
Twenty-fourth Supplemental Indenture May 15, 1979
Twenty-fifth Supplemental Indenture November 1, 1979
Twenty-sixth Supplemental Indenture November 1, 1979
Twenty-seventh Supplemental Indenture April 1, 1980
Twenty-eighth Supplemental Indenture October 1, 1980
Twenty-ninth Supplemental Indenture October 1, 1980
Thirtieth Supplemental Indenture December 1, 1982
Thirty-first Supplemental Indenture March 15, 1983
Thirty-second Supplemental Indenture March 15, 1983
Thirty-third Supplemental Indenture December 1, 1983
Thirty-fourth Supplemental Indenture December 15, 1983
Thirty-fifth Supplemental Indenture April 1, 1984
Thirty-sixth Supplemental Indenture June 1, 1984
Thirty-seventh Supplemental Indenture June 1, 1984
Thirty-eighth Supplemental Indenture June 1, 1984
Thirty-ninth Supplemental Indenture April 1, 1985
Fortieth Supplemental Indenture October 1, 1985
Forty-first Supplemental Indenture March 1, 1986
Forty-second Supplemental Indenture July 1, 1986
Forty-third Supplemental Indenture January 1, 1987
Forty-fourth Supplemental Indenture December 1, 1987
Forty-fifth supplemental Indenture September 1, 1988
Forty-sixth Supplemental Indenture April 1, 1989
Forty-seventh Supplemental Indenture August 1, 1989
Forty-eighth Supplemental Indenture November 15, 1990
Forty-ninth Supplemental Indenture November 15, 1990
Fiftieth Supplemental Indenture February 15, 1991
Fifty-first Supplemental Indenture April 1, 1991
Fifty-second Supplemental Indenture September 15, 1991
Fifty-third Supplemental Indenture January 1, 1992
Fifty-fourth Supplemental Indenture April 15, 1992
Fifty-fifth Supplemental Indenture July 1, 1992
Fifty-sixth Supplemental Indenture October 1, 1992
Fifty-seventh Supplemental Indenture February 1, 1993
Fifty-eighth Supplemental Indenture March 1, 1993
Fifty-ninth Supplemental Indenture July 1, 1993
Sixtieth Supplemental Indenture July 1, 1993
Sixty-first Supplemental Indenture August 15, 1993
which supplemental indentures were or are to be recorded in various
Counties in the States of North Carolina and South Carolina, and were or
are to be indexed and cross-indexed in the real and chattel mortgage or
security interest records in various Counties in the States of North
Carolina and South Carolina; and
WHEREAS, the Mortgage and said First through Sixty-first
Supplemental Indentures were or are to be recorded in all Counties in the
States of North Carolina and South Carolina in which this Sixty-second
Supplemental Indenture is to be recorded; and
WHEREAS, in addition to the property described in the Mortgage,
as heretofore supplemented, the Company has acquired certain other
property, rights and interests in property; and
WHEREAS, the Company has heretofore issued, in accordance with
the provisions of the Mortgage, as supplemented, the following series of
First Mortgage Bonds:
PRINCIPAL PRINCIPAL
AMOUNT AMOUNT
SERIES ISSUED OUTSTANDING
- ------ ------ -----------
3-3/4% Series due 1965 $ 46,000,000 None
3-1/8% Series due 1979 20,100,000 None
3-1/4% Series due 1979 43,930,000 None
2-7/8% Series due 1981 15,000,000 None
3-1/2% Series due 1982 20,000,000 None
4-1/8% Series due 1988 20,000,000 None
4-7/8% Series due 1990 25,000,000 None
4-1/2% Series due 1991 25,000,000 None
4-1/2% Series due 1994 30,000,000 None
5-1/8% Series due 1996 30,000,000 $30,000,000
6-3/8% Series due 1997 40,000,000 40,000,000
6-7/8% Series due 1998 40,000,000 40,000,000
8-3/4% Series due 2000 40,000,000 None
8-3/4% Series due August 1, 2000 50,000,000 None
7-3/8% Series due 2001 65,000,000 None
7-3/4% Series due October 1, 2001 70,000,000 None
7-3/4% Series due 2002 100,000,000 None
7-3/4% Series due 2003 100,000,000 100,000,000
8-1/8% Series due November 1, 2003 100,000,000 100,000,000
9-3/4% Series due 2004 125,000,000 None
11-1/8% Series due 1994 50,000,000 None
11% Series due April 15, 1984 100,000,000 None
8-1/2% Series due October 1, 2007 100,000,000 17,451,000
9-1/4% Series due June 1, 2008 100,000,000 None
10-1/2% Series due May 15, 2009 125,000,000 None
12-1/4% Series due November 1, 2009 100,000,000 None
Pollution Control Series A 63,000,000 None
14-1/8% Series due April 1, 1987 125,000,000 None
Pollution Control Series B 50,000,000 None
Pollution Control Series C 6,000,000 None
11-5/8% Series due December 1, 1992 100,000,000 None
Pollution Control Series D 48,485,000 48,485,000
Pollution Control Series E 5,970,000 5,970,000
12-7/8% Series due December 1, 2013 100,000,000 None
Pollution Control Series F 34,700,000 34,700,000
13-3/8% Series due April 1, 1994 100,000,000 None
Pollution Control Series G 122,615,000 122,615,000
Pollution Control Series H 70,000,000 None
Pollution Control Series I 70,000,000 None
Pollution Control Series J 6,385,000 1,795,000
Pollution Control Series K 2,580,000 2,580,000
Extendible Series due April 1, 1995 125,000,000 77,050,000
11-3/4% Series due October 1, 2015 100,000,000 None
8-7/8% Series due March 1, 2016 100,000,000 None
8-1/8% Series due July 1, 1996 125,000,000 None
8-1/2% Series due January 1, 2017 100,000,000 None
9.174% Series due December 1, 1992 100,000,000 None
9% Series due September 1, 1993 100,000,000 None
9.60% Series due April 1, 1991 100,000,000 None
Secured Medium-Term Notes, Series A 200,000,000 73,000,000
8-1/8% Series due November 15, 1993 100,000,000 None
Secured Medium-Term Notes, Series B 100,000,000 100,000,000
8-7/8% Series due February 15, 2021 125,000,000 125,000,000
9% Series due April 1, 2022 100,000,000 100,000,000
8-5/8% Series due September 15, 2021 100,000,000 100,000,000
5.20% Series due January 1, 1995 125,000,000 125,000,000
7-7/8% Series due April 15, 2004 150,000,000 150,000,000
8.20% Series due July 1, 2022 150,000,000 150,000,000
6-3/4% Series due October 1, 2002 100,000,000 100,000,000
6-1/8% Series due February 1, 2000 150,000,000 150,000,000
7-1/2% Series due March 1, 2023 150,000,000 150,000,000
5-3/8% Series due July 1, 1998 100,000,000 100,000,000
Secured Medium-Term Notes, Series C 90,000,000 90,000,000
6-7/8% Series due August 15, 2023 100,000,000 100,000,000
which bonds are also hereinafter sometimes called bonds of the First
through Sixty-fourth Series, respectively; and
WHEREAS, Section 8 of the Mortgage provides that the form of each
series of bonds (other than the First Series) issued thereunder and of the
coupons to be attached to coupon bonds of such series shall be established
by Resolution of the Board of Directors of the Company and that the form of
such series, as established by said Board of Directors, shall specify the
descriptive title of the bonds and various other terms thereof, and may
also contain such provisions not inconsistent with the provisions of the
Mortgage as said Board of Directors may, in its discretion, cause to be
inserted therein expressing or referring to the terms and conditions upon
which such bonds are to be issued and/or secured under the Mortgage; and
WHEREAS, Section 120 of the Mortgage provides, among other
things, that any power, privilege or right expressly or impliedly reserved
to or in any way conferred upon the Company by any provision of the
Mortgage, whether such power, privilege or right is in any way restricted
or is unrestricted, may be in whole or in part waived or surrendered or
subjected to any restriction if at the time unrestricted or to additional
restriction if already restricted, and the Company may enter into any
further covenants, limitations or restrictions for the benefit of any one
or more series of bonds issued thereunder, or the Company may cure any
ambiguity contained therein, or in any supplemental indenture, or may
establish the terms and provisions of any series of bonds other than said
First Series, by an instrument in writing executed and acknowledged by the
Company in such manner as would be necessary to entitle a conveyance of
real estate to record in all of the states in which any property at the
time subject to the lien of the Mortgage shall be situated; and
WHEREAS, the Company now desires to create a new series of bonds
and to add to its covenants and agreements contained in the Mortgage, as
heretofore supplemented, certain other covenants and agreements to be
observed by it and to alter and amend in certain respects the covenants and
provisions contained in the Mortgage, as heretofore supplemented; and
WHEREAS, the execution and delivery by the Company of this Sixty-
second Supplemental Indenture, and the terms of the bonds of the Sixty-
fifth Series, hereinafter referred to, have been duly authorized by the
Board of Directors of the Company by appropriate resolutions of said Board
of Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the Company, in consideration of the premises and of One
Dollar to it duly paid by the Trustees at or before the ensealing and
delivery of these presents, the receipt whereof is hereby acknowledged, and
in further evidence of assurance of the estate, title and rights of the
Trustees and in order further to secure the payment of both the principal
of and interest and premium, if any, on the bonds from time to time issued
under the Mortgage, according to their tenor and effect and the performance
of all the provisions of the Mortgage (including any instruments
supplemental thereto and any modification made as in the Mortgage provided)
and of said bonds, hereby grants, bargains, sells, releases, conveys,
assigns, transfers, mortgages, pledges, sets over and confirms (subject,
however, to Excepted Encumbrances as defined in Section 6 of the Mortgage)
unto The Bank of New York and W.T. Cunningham, as Trustees under the
Mortgage, and to their successor or successors in said trust, and to said
Trustees and their successors and assigns forever, all the following
described properties of the Company:
All electric generating plants, stations, transmission
lines, and electric distribution systems, including permanent
improvements, extensions or additions to or about such electrical
plants, stations, transmission lines and distribution systems of
the Company; all dams, power houses, power sites, buildings,
generators, reservoirs, pipe lines, flumes, structures and works;
all substations, transformers, switchboards, towers, poles,
wires, insulators, and other appliances and equipment, and the
Company's rights or interests in the land upon which the same are
situated, and all other property, real or personal, forming a
part of or appertaining to, or used, occupied or enjoyed in
connection with said generating plants, stations, transmission
lines, and distribution systems; together with all rights of way,
easements, permits, privileges, franchises and rights for or
related to the construction, maintenance, or operation thereof,
through, over, under or upon any public streets or highways, or
the public lands of the United States, or of any State or other
lands; and all water appropriations and water rights, permits and
privileges; including all property, real, personal, and mixed,
acquired by the Company after the date of the execution and
delivery of the Mortgage, in addition to property covered by the
above-mentioned supplemental indentures (except any herein or in
the Mortgage, as heretofore supplemented, expressly excepted),
now owned or, subject to the provisions of Section 87 of the
Mortgage, hereafter acquired by the Company and wheresoever
situated, including (without in anywise limiting or impairing by
the enumeration of the same the scope and intent of the foregoing
or of any general description contained in this Sixty-second
Supplemental Indenture) all lands, power sites, flowage rights,
water rights, flumes, raceways, dams, rights of way and roads;
all steam and power houses, gas plants, street lighting systems,
standards and other equipment incidental thereto, telephone,
radio and television systems, air-conditioning systems and
equipment incidental thereto, water works, steam heat and hot
water plants, lines, service and supply systems, bridges,
culverts, tracts, ice or refrigeration plants and equipment,
street and interurban railway systems, offices, buildings and
other structures and the equipment thereof; all machinery,
engines, boilers, dynamos, electric and gas machines, regulators,
meters, transformers, generators, motors, electrical, gas and
mechanical appliances, conduits, cables, water, steam heat, gas
or other pipes, gas mains and pipes, service pipes, fittings,
valves and connections, pole and transmission lines, wires,
cables, tools, implements, apparatus, furniture, chattels and
choses in action; all municipal and other franchises, consents or
permits; all lines for the transmission and distribution of
electric current, gas, steam heat or water for any purpose
including poles, wires, cables, pipes, conduits, ducts and all
apparatus for use in connection therewith; all real estate,
lands, easements, servitudes, licenses, permits, franchises,
privileges, rights of way and other rights in or relating to real
estate or the occupancy of the same and (except as herein or in
the Mortgage, as heretofore supplemented, expressly excepted) all
the right, title and interest of the Company in and to all other
property of any kind or nature appertaining to and/or used and/or
occupied and/or enjoyed in connection with any property
hereinbefore or in the Mortgage, as heretofore supplemented,
described.
TOGETHER WITH all and singular the tenements, hereditaments and
appurtenances belonging or in anywise appertaining to the aforesaid
property or any part thereof, with the reversion and reversions, remainder
and remainders and (subject to the provisions of Section 57 of the
Mortgage) the tolls, rents, revenues, issues, earnings, income, product and
profits thereof, and all the estate, right, title and interest and claim
whatsoever, at law as well as in equity, which the Company now has or may
hereafter acquire in and to the aforesaid property and franchises and every
part and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of Section 87 of the Mortgage, all the property, rights and
franchises acquired by the Company after the date hereof (except any herein
or in the Mortgage, as heretofore supplemented, expressly excepted) shall
be and are as fully granted and conveyed hereby and as fully embraced
within the lien hereof and the lien of the Mortgage as if such property,
rights and franchises were now owned by the Company and were specifically
described herein and conveyed hereby.
PROVIDED THAT the following are not and are not intended to be
now or hereafter granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, pledged, set over or confirmed hereunder and are
hereby expressly excepted from the lien and operation of this Sixty-second
Supplemental Indenture and from the lien and operation of the Mortgage,
namely: (1) cash, shares of stock and obligations (including bonds, notes
and other securities) not hereafter specifically pledged, paid, deposited
or delivered under the Mortgage or covenanted so to be; (2) merchandise,
equipment, materials or supplies held for the purpose of sale in the usual
course of business and fuel, oil and similar materials and supplies
consumable in the operation of any properties of the Company; rolling
stock, buses, motor coaches, vehicles and automobiles; (3) bills, notes and
accounts receivable, and all contracts, leases and operating agreements not
specifically pledged under the Mortgage, as heretofore supplemented, or
this Sixty-second Supplemental Indenture or covenanted so to be;
(4) electric energy and other materials or products generated,
manufactured, produced or purchased by the Company for sale, distribution
or use in the ordinary course of its business; and (5) any property and
rights heretofore released from the lien of the Mortgage; provided,
however, that the property and rights expressly excepted from the lien and
operation of the Mortgage and this Sixty-second Supplemental Indenture in
the above subdivisions (2) and (3) shall (to the extent permitted by law)
cease to be so excepted in the event and as of the date that either or both
of the Trustees or a receiver or trustee shall enter upon and take
possession of the Mortgaged and Pledged Property in the manner provided in
Article XII of the Mortgage by reason of the occurrence of a Default as
defined in said Article XII.
TO HAVE AND TO HOLD all such properties, real, personal and
mixed, granted, bargained, sold, released, conveyed, assigned, transferred,
mortgaged, pledged, set over or confirmed by the Company as aforesaid, or
intended so to be, unto the Trustees, their successors and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the same
terms, trusts and conditions and subject to and with the same provisos and
covenants as are set forth in the Mortgage, as heretofore supplemented,
this Sixty-second Supplemental Indenture being supplemental to the
Mortgage.
AND IT IS HEREBY COVENANTED by the Company that all the terms,
conditions, provisos, covenants and provisions contained in the Mortgage,
as heretofore supplemented, shall affect and apply to the property
hereinbefore described and conveyed and to the estate, rights, obligations
and duties of the Company and the Trustees and the beneficiaries of the
trust with respect to said property, and to the Trustees and their
successors as Trustees of said property in the same manner and with the
same effect as if the said property had been owned by the Company at the
time of the execution of the Mortgage and had been specifically and at
length described in and conveyed to the Trustees by the Mortgage as a part
of the property therein stated to be conveyed.
The Company further covenants and agrees to and with the Trustees
and their successor or successors in such trust under the Mortgage as
follows:
ARTICLE I
SIXTY-FIFTH SERIES OF BONDS
SECTION 1. There shall be a series of bonds designated "5 7/8%
Series due January 15, 2004" (herein sometimes referred to as the "Sixty-
fifth Series"), each of which shall also bear the descriptive title "First
Mortgage Bond," and the form thereof, which shall be established by
Resolution of the Board of Directors of the Company, shall contain suitable
provisions with respect to the matters hereinafter in this Section
specified. Bonds of the Sixty-fifth Series shall be initially issued in
the aggregate principal amount of $150,000,000, mature on January 15, 2004,
bear interest at the rate of 5 7/8% per annum, payable from January 15,
1994, if the date of said bonds is prior to July 15, 1994, or, if the date
of said bonds is after July 15, 1994, from the July 15 or January 15 next
preceding the date of said bonds, and thereafter semi-annually on July 15
and January 15 of each year, be issued as fully registered bonds in the
denominations of One Thousand Dollars and, at the option of the Company, in
any multiple or multiples of One Thousand Dollars (the exercise of such
option to be evidenced by the execution and delivery thereof) and be dated
as in Section 10 of the Mortgage provided, the principal of and interest on
each said bond to be payable at the office or agency of the Company in the
Borough of Manhattan, The City of New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for
public and private debts.
(I) Bonds of the Sixty-fifth Series shall not be redeemable.
(II) At the option of the registered owner, any bonds of the
Sixty-fifth Series, upon surrender thereof for cancellation at the office
or agency of the Company in the Borough of Manhattan, The City of New York,
shall be exchangeable for a like aggregate principal amount of bonds of the
same series of other authorized denominations. The bonds of the Sixty-
fifth Series may bear such legends as may be necessary to comply with any
law or with any rules or regulations made pursuant thereto or with the
rules or regulations of any stock exchange or to conform to usage or
agreement with respect thereto.
Bonds of the Sixty-fifth Series shall be transferable upon the
surrender thereof for cancellation, together with a written instrument of
transfer in form approved by the registrar duly executed by the registered
owner or by his duly authorized attorney, at the office or agency of the
Company in the Borough of Manhattan, The City of New York.
Upon any exchange or transfer of bonds of the Sixty-fifth Series,
the Company may make a charge therefor sufficient to reimburse it for any
tax or taxes or other governmental charge required to be paid by the
Company, as provided in Section 12 of the Mortgage, but the Company hereby
waives any right to make a charge in addition thereto for any exchange or
transfer of bonds of said Series.
ARTICLE II
DIVIDEND COVENANT
SECTION 2. The Company covenants and agrees that, so long as any
of the bonds of the Sixty-fifth Series remain Outstanding, the Company will
not declare or pay any dividends upon its common stock (other than
dividends in common stock) or make any other distributions on its common
stock or purchase or otherwise retire any shares of its common stock,
unless immediately after such declaration, payment, purchase, retirement or
distribution (hereinafter in this Section referred to as "Restricted
Payments"), and giving effect thereto, the amount arrived at by adding
(a) the aggregate amount of all such Restricted
Payments (other than the dividend of fifty cents ($.50) per share
declared on December 8, 1948 and paid on February 1, 1949 to
holders of Common Stock) made by the Company during the period
from December 31, 1948, to and including the effective date of
the Restricted Payment in respect of which the determination is
being made, plus
(b) an amount equal to the aggregate amount of
cumulative dividends for such period (whether or not paid) on all
preferred stock of the Company from time to time outstanding
during such period, at the rate or rates borne by such preferred
stock, plus
(c) an amount equal to the amount, if any, by which
fifteen per centum (15%) of the Gross Operating Revenues of the
Company for such period shall exceed the aggregate amount during
such period expended and/or accrued on its books for maintenance
and/or appropriated on its books out of income for property
retirement, in each case in respect of the Mortgaged and Pledged
Property and/or automotive equipment used primarily in the
electric utility business of the Company (but excluding any
provisions for amortization of any amounts included in utility
plant acquisition adjustment accounts or utility plant adjustment
accounts),
will not exceed the amount of the aggregate net income of the Company for
said period available for dividends (computed and ascertained in accordance
with sound accounting practice, on a cumulative basis, including the making
of proper deductions for any deficits occurring during any part of such
period), plus $3,000,000.
The Company further covenants and agrees that not later than May
1 of each year beginning with the year 1995 it will furnish to the
Corporate Trustee a Treasurer's Certificate stating whether or not the
Company has fully observed the restrictions imposed upon it by the covenant
contained in this Section 2.
ARTICLE III
CERTAIN PROVISIONS WITH RESPECT TO FUTURE ADVANCES
SECTION 3. Upon the filing of this Sixty-second Supplemental
Indenture for record in all counties in which the Mortgaged and Pledged
Property is located, and until a further indenture or indentures
supplemental to the Mortgage shall be executed and delivered by the Company
to the Trustees pursuant to authorization by the Board of Directors of the
Company and filed for record in all counties in which the Mortgaged and
Pledged Property is located further increasing or decreasing the amount of
future advances which may be secured by the Mortgage, as supplemented, the
Mortgage, as supplemented, may secure future advances and other
indebtedness and sums not to exceed in the aggregate $750,000,000, in
addition to $2,383,646,000 in aggregate principal amount of bonds to be
Outstanding at the time of such filing, and all such advances and other
indebtedness and sums shall be secured by the Mortgage, as supplemented,
equally, to the same extent and with the same priority, as the amount
originally advanced on the security of the Mortgage, namely, $46,000,000,
and such advances and other indebtedness and sums may be made or become
owing and may be repaid and again made or become owing and the amount so
stated shall be considered only as the total amount of such advances and
other indebtedness and sums as may be outstanding at one time.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4. Subject to the amendments provided for in this Sixty-
second Supplemental Indenture, the terms defined in the Mortgage, as
heretofore supplemented, shall, for all purposes of this Sixty-second
Supplemental Indenture, have the meanings specified in the Mortgage, as
heretofore supplemented.
SECTION 5. The provisions of the third and fourth paragraphs of
Section 64 of the Mortgage with reference to the bonds of the First Series
(therein called "1965 Series") shall also be deemed to apply separately to
the bonds of the Sixty-fifth Series to the same extent as if such
paragraphs had been repeated in said Section 64 with the words "Sixty-fifth
Series" substituted therein wherever the figure and word "1965 Series"
occur.
SECTION 6. The Trustees hereby accept the trusts herein
declared, provided, created or supplemented and agree to perform the same
upon the terms and conditions herein and in the Mortgage, as heretofore
supplemented, set forth and upon the following terms and conditions:
The Trustees shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of
this Sixty-second Supplemental Indenture 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 XVI of the Mortgage shall apply to and form
part of this Sixty-second Supplemental Indenture with the same
force and effect as if the same were herein set forth in full
with such omissions, variations and insertions, if any, as may be
appropriate to make the same conform to the provisions of this
Sixty-second Supplemental Indenture.
SECTION 7. Subject to the provisions of Article XV and Article
XVI of the Mortgage, whenever in this Sixty-second Supplemental Indenture
either of the parties hereto is named or referred to, this shall be deemed
to include the successors or assigns of such party, and all the covenants
and agreements in this Sixty-second Supplemental Indenture contained by or
on behalf of the Company or by or on behalf of the Trustees shall bind and
inure to the benefit of the respective successors and assigns of such
parties whether so expressed or not.
SECTION 8. Nothing in this Sixty-second Supplemental Indenture,
expressed or implied, is intended, or shall be construed, to confer upon,
or to give to, any person, firm or corporation, other than the parties
hereto and the holders of the Outstanding bonds and coupons, any right,
remedy or claim under or by reason of this Sixty-second Supplemental
Indenture or any covenant, condition, stipulation, promise or agreement
hereof, and all the covenants, conditions, stipulations, promises and
agreements in this Sixty-second Supplemental Indenture contained by or on
behalf of the Company shall be for the sole and exclusive benefit of the
parties hereto, and of the holders of the Outstanding bonds and coupons.
SECTION 9. This Sixty-second Supplemental Indenture shall be
executed in several counterparts, each of which shall be an original and
all of which shall constitute but one and the same instrument.
IN WITNESS WHEREOF, Carolina Power & Light Company has caused its
corporate name to be hereunto affixed, and this instrument to be signed and
sealed by its President or one of its Vice Presidents or its Treasurer and
its corporate seal to be attested by its Secretary or one of its Assistant
Secretaries, and The Bank of New York has caused its corporate name to be
hereunto affixed, and this instrument to be signed and sealed by one of its
Vice Presidents or Assistant Vice Presidents, and its corporate seal to be
attested by one of its Assistant Vice Presidents or Assistant Secretaries
and W.T. Cunningham has hereunto set his hand and affixed his seal, all as
of the day and year first above written.
CAROLINA POWER & LIGHT COMPANY
By \s\ Margaret S. Glass
----------------------------
Treasurer
ATTEST:
\s\ Adrian N. Wilson
- --------------------------
Assistant Secretary
Executed, sealed and delivered by
CAROLINA POWER & LIGHT
COMPANY in the presence of:
\s\ Allison M. Mathews
- ---------------------------
Allison M. Mathews
\s\ Shelia L. Jones
- ---------------------------
Shelia L. Jones
THE BANK OF NEW YORK, as Trustee
By \s\ Lloyd A. McKenzie
----------------------------------
Assistant Vice President
ATTEST:
\s\ Louis J. Hack
- -----------------------------
Assistant Secretary
\s\ W.T. Cunningham (L.S.)
-----------------------
W.T. Cunningham
Executed, sealed and delivered
by THE BANK OF NEW YORK
and W.T. CUNNINGHAM
in the presence of:
\s\ E. Elcock
- ---------------------------
E. Elcock
\s\ Paul J. Schmalzel
- ---------------------------
Paul J. Schmalzel
STATE OF NORTH CAROLINA )
) SS.:
COUNTY OF WAKE )
This 17th day of January, A.D. 1994, personally came before me,
DONNA M. CASSADA, a Notary Public in and for the County aforesaid, MARGARET
S. GLASS, who, being by me duly sworn, says that she is the Treasurer of
CAROLINA POWER & LIGHT COMPANY, and that the seal affixed to the foregoing
instrument in writing is the corporate seal of said company, and that said
writing was signed and sealed by her in behalf of said corporation by its
authority duly given. And the said MARGARET S. GLASS acknowledged the said
writing to be the act and deed of said corporation.
On the 17th day of January, in the year of 1994, before me
personally came MARGARET S. GLASS, to me known, who, being by me duly
sworn, did depose and say that she resides at 809 Lakestone Drive, Raleigh,
State of North Carolina; that she is the Treasurer of CAROLINA POWER &
LIGHT COMPANY, one of the corporations described in and which executed the
above instrument; that she knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation, and that
she signed her name thereto by like order.
\s\ Donna M. Cassada
----------------------------------------
DONNA M. CASSADA
NOTARY PUBLIC, State of North Carolina
Wake County
My Commission Expires November 16, 1997
STATE OF NORTH CAROLINA )
) SS.:
COUNTY OF WAKE )
Personally appeared before me SHELIA L. JONES, who being duly
sworn, says that she saw the corporate seal of CAROLINA POWER & LIGHT
COMPANY affixed to the above written instrument, and that she also saw
MARGARET S. GLASS, the Treasurer, with ADRIAN N. WILSON, an Assistant
Secretary, of said CAROLINA POWER & LIGHT COMPANY, sign and attest the
same, and that she, deponent, with ALLISON M. MATHEWS, witnessed the
execution and delivery thereof as the act and deed of said CAROLINA POWER &
LIGHT COMPANY.
\s\ Shelia L. Jones
--------------------------
Shelia L. Jones
Sworn to before me this
17th day of January, 1994
\s\ Donna M. Cassada
- ---------------------------------------
DONNA M. CASSADA
NOTARY PUBLIC, State of North Carolina
Wake County
My Commission Expires November 16, 1997
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
This 18th day of January, A.D. 1994, personally came before me,
CHRISTIAN O. NAGLER, a Notary Public in and for the County aforesaid, LLOYD
A. MCKENZIE, who, being by me duly sworn, says that he is an Assistant Vice
President of THE BANK OF NEW YORK, and that the seal affixed to the
foregoing instrument in writing is the corporate seal of said company, and
that said writing was signed and sealed by him in behalf of said
corporation by its authority duly given. And the said LLOYD A. MCKENZIE
acknowledged the said writing to be the act and deed of said corporation.
On the 18th day of January, in the year 1994, before me
personally came LLOYD A. MCKENZIE, to me known, who, being by me duly
sworn, did depose and say that he resides in Rosedale, New York; that he is
an Assistant Vice President of THE BANK OF NEW YORK, one of the
corporations described in and which executed the above instrument; that he
knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation, and that he signed his name thereto
by like order.
I, CHRISTIAN O. NAGLER, a Notary Public in and for the County
aforesaid, do hereby certify that W.T. CUNNINGHAM personally appeared
before me this day and acknowledged the due execution by him as successor
Individual Trustee of the foregoing instrument.
On the 18th day of January, 1994, before me personally came W.T.
CUNNINGHAM, to me known to be the person described in and who executed the
foregoing instrument and acknowledged that he, as successor Individual
Trustee, executed the same.
WITNESS my hand and official seal this 18th day of January, 1994.
\s\ Christian O. Nagler
-----------------------------------
CHRISTIAN O. NAGLER
NOTARY PUBLIC, State of New York
No. O1NA5014956
Qualified in New York County
Certificate filed in New York County
Commission Expires July 12, 1995
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
Personally appeared before me PAUL J. SCHMALZEL, who, being duly
sworn, says that he saw the corporate seal of THE BANK OF NEW YORK affixed
to the above written instrument and that he also saw LLOYD A. MCKENZIE, an
Assistant Vice President, with LOUIS J. HACK, an Assistant Secretary, of
said THE BANK OF NEW YORK, sign and attest the same, and that he, deponent,
with E. ELCOCK, witnessed the execution and delivery thereof as the act and
deed of said THE BANK OF NEW YORK.
Personally appeared before me PAUL J. SCHMALZEL, who, being duly
sworn, says that he saw the within named W.T. CUNNINGHAM, as successor
Individual Trustee, sign, seal and as his act and deed deliver the
foregoing instrument for the purposes therein mentioned, and that he,
deponent, with E. ELCOCK, witnessed the execution thereof.
\s\ Paul J. Schmalzel
-------------------------
Paul J. Schmalzel
Sworn to before me this
18th day of January, 1994
\s\ Christian O. Nagler
- -------------------------------
CHRISTIAN O. NAGLER
NOTARY PUBLIC, State of New York
No. O1NA5014956
Qualified in New York County
Certificate filed in New York County
Commission Expires July 12, 1995