Exhibit 4(a)
COUNTERPART 1
OF 20 COUNTERPARTS
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CAROLINA POWER & LIGHT COMPANY
TO
THE BANK OF NEW YORK,
TRUSTEE
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SECOND SUPPLEMENTAL INDENTURE
DATED AS OF APRIL 1, 2000
TO
INDENTURE
(FOR SENIOR NOTES)
DATED AS OF MARCH 1, 1999
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SENIOR NOTES, 7.50% SERIES DUE APRIL 1, 2005
THIS SECOND SUPPLEMENTAL INDENTURE, dated as of April 1, 2000, between
CAROLINA POWER & LIGHT COMPANY, a corporation duly organized and existing under
the laws of the State of North Carolina (herein called the "Company"), having
its principal office at 411 Fayetteville Street, Raleigh, North Carolina
27601-1748, and THE BANK OF NEW YORK, a banking corporation of the State of New
York, having its principal office at 101 Barclay Street, New York, New York,
10286, as Trustee (herein called the "Trustee") under the Indenture (For Senior
Notes) dated as of March 1, 1999 between the Company and the Trustee (the
"Indenture").
RECITALS OF THE COMPANY
A. The Company has executed and delivered the Indenture to the Trustee
to provide for the issuance from time to time of its Senior Notes (the "Notes"),
said Notes to be issued in one or more series as in the Indenture provided.
B. The Company has executed and delivered to the Trustee the following
indenture supplemental to the Indenture: a First Supplemental Indenture, dated
as of March 1, 1999, which established the form and terms of a series of Notes.
C. Pursuant to the terms of the Indenture, the Company desires to
establish a new series of its Notes to be known as its Senior Notes, 7.50%
Series Due April 1, 2005 (herein called the "Senior Notes Due 2005"), the form
and substance of such Senior Notes Due 2005 and the terms, provisions, and
conditions thereof to be set forth as provided in the Indenture and this Second
Supplemental Indenture.
D. All things necessary to make this Second Supplemental Indenture a
valid agreement of the Company, and to make the Senior Notes Due 2005, when
executed by the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company, have been done.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Senior
Notes Due 2005 by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Senior Notes Due 2005
and the terms, provisions, and conditions thereof, it is mutually agreed, for
the equal and proportionate benefit of all Holders of the Senior Notes Due 2005,
as follows:
ARTICLE I
GENERAL TERMS AND CONDITIONS OF THE SENIOR NOTES DUE 2005
SECTION 101. There is hereby established a series of Notes designated
the "Senior Notes, ____% Series Due April 1, 2005." The Notes of such series
shall be initially authenticated and delivered from time to time upon delivery
to the Trustee of the documents required by Section 303 of the Indenture
including, among other things, a Company Order for the authentication and
delivery of Senior Notes Due 2005.
SECTION 102. (a) The Senior Notes Due 2005 shall be issued in
registered form without coupons and shall be issued initially in the form of one
or more Global Notes (each such Global Note, a "Senior Note Due 2005 Global
Note") to or on behalf of The Depository Trust Company ("DTC"), as Depositary
therefor, and registered in the name of such Depositary or its nominee. Any
Senior Notes Due 2005 to be issued or transferred to, or to be held by or on
behalf of DTC as such Depositary or such nominee (or any successor of such
nominee) for such purpose shall bear the depositary legends in substantially the
form set forth at the top of the form of Senior Notes Due 2005 in Article III
hereof, unless otherwise agreed by the Company, and in the case of a successor
Depositary, such legend or legends as such Depositary and/or the Company shall
require and to which they shall agree, in each case such agreement to be
confirmed in writing to the Trustee. Principal of, and premium, if any, and
interest on the Senior Notes Due 2005 will be payable, the transfer of Senior
Notes Due 2005 will be registrable and Senior Notes Due 2005 will be
exchangeable for Senior Notes Due 2005 bearing identical terms and provisions,
at the office or agency of the Company in the Borough of Manhattan, The City and
State of New York; PROVIDED, HOWEVER, that payment of interest may be made at
the option of the Company by check mailed to the registered Holders thereof at
such address as shall appear in the Note Register; and FURTHER PROVIDED,
HOWEVER, that with respect to a Senior Note Due 2005 Global Note, the Company
may make payments of principal of, and premium, if any, and interest on such
Senior Note Due 2005 Global Note pursuant to and in accordance with such
arrangements as are agreed upon by the Company and the Depositary for such
Senior Note Due 2005 Global Note. The Senior Notes Due 2005 shall have the terms
set forth in the form of the Senior Notes Due 2005 set forth in Article III
hereof.
(b) Notwithstanding any other provision of this Section
102 or of Section 305 of the Indenture, except as contemplated by the provisions
of paragraph (c) below, a Senior Note Due 2005 Global Note may be transferred,
in whole but not in part and in the manner provided in Section 305 of the
Indenture, only to a nominee of the Depositary for such Senior Note Due 2005
Global Note, or to the Depositary, or to a successor Depositary for such Senior
Note Due 2005 Global Note selected or approved by the Company, or to a nominee
of such successor Depositary.
(c) (1) If at any time the Depositary for a Senior Note
Due 2005 Global Note notifies the Company that it is unwilling or unable to
continue as the Depositary for such Senior Note Due 2005 Global Note or if at
any time the Depositary for a Senior Note Due 2005 Global Note shall no longer
be eligible or in good standing under the Exchange Act, or other applicable
statute or regulation, the Company shall appoint a successor Depositary with
respect to such Senior Note Due 2005 Global Note. If a successor Depositary for
such Global Note is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Company
will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of Senior Notes Due 2005 in the form of definitive
certificates in exchange for such Senior Note Due 2005 Global Note, will
authenticate and deliver Senior Notes Due 2005 in the form of definitive
certificates of like tenor and terms in an aggregate principal amount equal to
the principal amount of the Senior Note Due 2005 Global Note in exchange for
such Senior Note Due 2005 Global Note. Such Senior Notes Due 2005 will be issued
to and registered in the name of such Person or Persons as are specified by the
Depositary.
(2) The Company may at any time and in its sole
discretion determine that any Senior Notes Due 2005 issued or issuable in the
form of one or more Senior Note Due 2005 Global Notes shall no longer be
represented by such Global Note or Notes. In any such event the Company will
execute, and the Trustee, upon receipt of a Company Request for the
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authentication and delivery of Senior Notes Due 2005 in the form of definitive
certificates in exchange in whole or in part for such Senior Note Due 2005
Global Note or Notes, will authenticate and deliver without service charge, to
each Person specified by the Depositary, Senior Notes Due 2005 in the form of
definitive certificates of like tenor and terms in an aggregate principal amount
equal to the principal amount of such Senior Note Due 2005 Global Note or the
aggregate principal amount of such Senior Note Due 2005 Global Notes in exchange
for such Senior Note Due 2005 Global Note or Notes.
(3) If the Company so elects in an Officer's
Certificate, the Depositary may surrender Senior Notes Due 2005 issued in the
form of a Global Note in exchange in whole or in part for Senior Notes Due 2005
in the form of definitive certificates of like tenor and terms on such terms as
are acceptable to the Company and such Depositary. Thereupon the Company shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(A) to each Person specified by such Depositary a new Senior Note Due 2005 or
Senior Notes Due 2005 of like tenor and terms and any authorized denomination as
requested by such Person in aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Note; and (B) to such
Depositary a new Senior Note Due 2005 Global Note of like tenor and terms and in
an authorized denomination equal to the difference, if any, between the
principal amount of the surrendered Global Note and the aggregate principal
amount of Notes delivered to Holders thereof.
(4) In any exchange provided for in any of the
preceding three subparagraphs, the Company shall execute and the Trustee shall
authenticate and deliver Senior Notes Due 2005 in the form of definitive
certificates in authorized denominations. Upon the exchange of the entire
principal amount of a Senior Note Due 2005 Global Note for Senior Notes Due 2005
in the form of definitive certificates, such Senior Note Due 2005 Global Note
shall be canceled by the Trustee. Except as provided in the immediately
preceding subparagraph, Senior Notes Due 2005 issued in exchange for a Senior
Note Due 2005 Global Note pursuant to this Section 102 shall be registered in
such names and in such authorized denominations as the Depositary for such
Senior Note Due 2005 Global Note, acting pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee.
Provided that the Company and the Trustee have so agreed, the Trustee shall
deliver such Senior Notes Due 2005 to the Persons in whose names the Senior
Notes Due 2005 are so to be registered.
(5) Any endorsement of a Senior Note Due 2005 Global
Note to reflect the principal amount thereof, or any increase or decrease in
such principal amount, shall be made in such manner and by such Person or
Persons as shall be specified in or pursuant to any applicable letter of
representations or other arrangement entered into with, or procedures of, the
Depositary with respect to such Senior Note Due 2005 Global Note or in the
Company Order delivered or to be delivered pursuant to Section 303 of the
Indenture with respect thereto. Subject to the provisions of Section 303 of the
Indenture, the Trustee shall deliver and redeliver any such Global Note in the
manner and upon instructions given by the Person or Persons specified in or
pursuant to any applicable letter of representations or other arrangement
entered into with, or procedures of, the Depositary with respect to such Senior
Note Due 2005 Global Note or in any applicable Company Order. If a Company Order
pursuant to Section 303 of the Indenture is so delivered, any instructions by
the Company with respect to such Senior Note Due 2005 Global Note contained
therein shall be in writing but need not be accompanied by or contained in an
Officer's Certificate and need not be accompanied by an Opinion of Counsel.
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(6) The Depositary or, if there be one, its nominee,
shall be the Holder of a Senior Note Due 2005 Global Note for all purposes under
the Indenture and the Senior Notes Due 2005 and beneficial owners with respect
to such Global Note shall hold their interests pursuant to applicable procedures
of such Depositary. The Company, the Trustee and the Note Registrar shall be
entitled to deal with such Depositary for all purposes of the Indenture relating
to such Global Note (including the payment of principal, premium, if any, and
interest and the giving of instructions or directions by or to the beneficial
owners of such Global Note as the sole Holder of such Global Note and shall have
no obligations to the beneficial owners thereof (including any direct or
indirect participants in such Depositary. None of the Company, the Trustee, any
Paying Agent or the Note Registrar shall have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of a in or pursuant to any applicable letter of
representations or other arrangement entered into with, or procedures of, the
Depositary with respect to such Senior Note Due 2005 Global Note Global Note or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
SECTION 103. The Company may, at its option, redeem, at any time, all,
or, from time to time, any part of the Senior Notes Due 2005, upon notice as
provided in the Indenture (not less than 30 nor more than 60 days prior to a
date fixed for redemption (the "Redemption Date")) at a redemption price equal
to the greater of (i) 100% of their principal amount or (ii) the sum of the
present values of the remaining scheduled payments of principal and interest
thereon from the Redemption Date to the maturity date, computed by discounting
such payments, in each case, to the Redemption Date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Yield plus 25 basis points (.25%), plus in each case accrued interest on the
principal amount thereof to the Redemption Date (the "Redemption Price"), such
Redemption Price to be set forth in an Officer's Certificate delivered to the
Trustee on or before the Redemption Date and upon which the Trustee may
conclusively rely.
For purposes of this Section 103, the following terms shall have the
following meanings:
"Treasury Yield" means, with respect to any Redemption Date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker having a maturity comparable to the
remaining term of the Senior Notes Due 2005 that would be utilized, at the time
of selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the Senior Notes Due 2005. "Independent Investment Banker" means Chase
Securities Inc. or, if such firm is unwilling or unable to select the Comparable
Treasury Issue, an independent investment banking institution of national
standing selected by the Company and appointed by the Trustee.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such
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release (or any successor release) is not published or does not contain such
prices on such business day, the average of the Reference Treasury Dealer
Quotations for such Redemption Date.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third business day preceding such Redemption Date. The Company shall furnish the
Trustee a notice in writing at least five business days and not more than ten
business days prior to such Redemption Date of (a) the name of each Reference
Treasury Dealer, (b) the Redemption Date, and (c) the third business day
preceding the Redemption Date.
"Reference Treasury Dealer" means each of Banc One Capital Markets,
Inc., Chase Securities Inc. and J.P. Morgan Securities Inc., and their
respective successors; provided, however, that if any of the foregoing shall
cease to be a primary U.S. Government Securities dealer in New York City (a
"Primary Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer.
The Company shall deliver to the Trustee the Officer's Certificate
referred to above in this Section 103 setting forth the Company's calculation of
the Redemption Price applicable to any such redemption promptly after the
calculation thereof but, in any event, prior to the Redemption Date of any such
Senior Notes Due 2005. Except with respect to the obligations of the Trustee
expressly set forth in the foregoing definition of "Reference Treasury Dealer
Quotations," the Trustee shall be under no duty to inquire into, may presume the
correctness of, and shall be fully protected in acting upon the Company's
calculation of any Redemption Price of the Senior Notes Due 2005.
SECTION 104. The Company has issued pursuant to the Sixty-eighth
Supplemental Indenture to the First Mortgage, and hereby delivers to the Trustee
for the benefit of the Holders of all Notes from time to time Outstanding under
the Indenture, a series of Senior Note First Mortgage Bonds designated the
"First Mortgage Bonds, 7.50% Senior Note Series Due 2005." Such Senior Note
First Mortgage Bonds have the same rate or rates of interest (or interest
calculated in the same manner) (including interest payable following a default
on the Senior Notes Due 2005), interest payment dates, maturity and redemption
provisions, and have been issued in the same aggregate principal amount, as the
Senior Notes Due 2005.
SECTION 105. When the obligation of the Company to make payments with
respect to the principal of, and premium, if any, and interest on all or any
part of the Senior Note First Mortgage Bonds delivered pursuant to Section 104
of this Second Supplemental Indenture shall be satisfied or deemed satisfied
pursuant to Section 403, Section 801 or Section 802 of the Indenture or pursuant
to Section 103 of this Second Supplemental Indenture, the Trustee shall, upon
written request of the Company and the receipt of the certificate of the Expert
described in Section 404(b) of the Indenture (if such certificate is then
required by Section 404(b) of the Indenture), deliver to the Company without
charge therefor all of the Senior Note First Mortgage Bonds so satisfied or
deemed satisfied, together with such appropriate instruments of transfer or
release as may be reasonably requested by the Company. All Senior Note First
Mortgage Bonds delivered to the Company in accordance with this Section 105
shall be delivered by the Company to the Mortgage Trustee for cancellation.
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SECTION 106. The Senior Notes Due 2005 shall be defeasible pursuant to
Section 801 of the Indenture.
ARTICLE II
ADDITIONAL COVENANTS
SECTION 201. (a) From and after the Release Date and so long as any
Senior Notes Due 2005 are Outstanding, the Company will not issue, assume, or
guarantee (including any contingent obligation to purchase) any Debt secured by
any mortgage, security interest, pledge, or lien (herein referred to as a
"Lien") of or upon any Operating Property of the Company, whether owned at the
date of the Indenture or thereafter acquired, and will not permit to exist any
Debt secured by a Lien on any Operating Property created on or prior to the
Release Date, without in any such case effectively securing, on the later to
occur of the issuance, assumption, or guarantee of any such Debt or the Release
Date, the Outstanding Senior Notes Due 2005 (together with, if the Company shall
so determine, any other Note or Debt of or guaranteed by the Company ranking
equally with, the Senior Notes Due 2005) equally and ratably with such Debt;
provided, however, that the foregoing restriction shall not apply to Debt
secured by any of the following:
(1) Liens on any Operating Property existing
at the time of acquisition thereof and not created in contemplation of such
acquisition;
(2) Liens on Operating Property of a
corporation existing at the time such corporation is merged into or consolidated
with the Company, or at the time of a sale, lease, or other disposition of the
properties of such corporation or a division thereof as an entirety or
substantially as an entirety to the Company, provided that such Lien as a result
of such merger, consolidation, sale, lease, or other disposition is not extended
to property owned by the Company immediately prior thereto and is not created in
contemplation of such merger, consolidation, sale, lease or other disposition;
(3) Liens on Operating Property to secure
all or part of the cost of acquiring, constructing, developing, or substantially
repairing, altering, or improving such property, or to secure indebtedness
incurred to provide funds for any such purpose or for reimbursement of funds
previously expended for any such purpose, provided such Liens are created or
assumed contemporaneously with, or within eighteen (18) months after, such
acquisition or completion of construction, development, or substantial repair,
alteration, or improvement or within six (6) months thereafter pursuant to a
commitment for financing arranged with a lender or investor within such eighteen
(18) month period;
(4) Liens in favor of the United States of
America or any State thereof, or any department, agency, or instrumentality or
political subdivision of the United States of America or any State thereof, or
for the benefit of holders of securities issued by any such entity, to secure
any Debt incurred for the purpose of financing all or any part of the purchase
price or the cost of constructing, developing, or substantially repairing,
altering, or improving the property subject to such Liens; or
(5) any extension, renewal or replacement
(or successive extensions, renewals, or replacements), in whole or in part, of
any Lien referred to in the foregoing clauses (1) to (4), inclusive; provided,
however, that the principal amount of Debt secured thereby
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and not otherwise authorized by said clauses (1) to (4), inclusive, shall not
exceed the principal amount of Debt, plus any premium or fee payable in
connection with any such extension, renewal, or replacement, so secured at the
time of such extension, renewal, or replacement.
(b) Notwithstanding the provisions of Section 201(a),
from and after the Release Date and so long as any Senior Notes Due 2005 are
Outstanding, the Company may issue, assume, or guarantee Debt, or permit to
exist Debt, secured by Liens which would otherwise be subject to the
restrictions of Section 201(a) up to an aggregate principal amount that,
together with the principal amount of all other Debt of the Company secured by
Liens (other than Liens permitted by Section 201(a) that would otherwise be
subject to the foregoing restrictions) and the Value of all Sale and Lease-Back
Transactions in existence at such time (other than (i) any Sale and Lease-Back
Transaction that, if such Sale and Lease-Back Transaction had been a Lien, would
have been permitted by Section 201(a), (ii) Sale and Lease-Back Transactions
permitted by Section 202 because the commitment by or on behalf of the purchaser
was obtained no later than eighteen (18) months after the later of events
described in (i) or (ii) of Section 202, and (iii) Sale and Lease-Back
Transactions as to which application of amounts has been made in accordance
with clause (z) of Section 202), does not at the time exceed the greater of ten
percent (10%) of Net Tangible Assets or ten percent (10%) of Capitalization.
(c) If at any time the Company shall issue, assume,
or guarantee any Debt secured by any Lien and if Section 201(a) requires that
the Outstanding Senior Notes Due 2005 be secured equally and ratably with such
Debt, the Company will promptly execute, at its expense, any instruments
necessary to so equally and ratably secure the Outstanding Senior Notes Due
2005 and deliver the same to the Trustee along with:
(1) an Officers' Certificate stating that
the covenant of the Company contained in Section 201(a) has been complied with;
and
(2) an Opinion of Counsel to the effect
that the Company has complied with the covenant contained in Section 201(a),
and that any instrument executed by the Company in the performance of such
covenant complies with the requirements of such covenant.
In the event that the Company shall hereafter secure
Outstanding Senior Notes Due 2005 equally and ratably with any other obligation
or indebtedness (including other Notes) pursuant to the provisions of this
Section 201, the Trustee is hereby authorized to enter into an indenture or
agreement supplemental hereto and to take such action, if any, as it may, in its
sole and absolute discretion, deem advisable to enable it to enforce effectively
the rights of the Holders of Outstanding Senior Notes Due 2005 so secured,
equally and ratably with such other obligation or indebtedness.
SECTION 202. From and after the Release Date and so long as any Senior
Notes Due 2005 are outstanding, the Company will not enter into any Sale and
Lease-Back Transaction with respect to any Operating Property and will not
permit to remain in effect any Sale and Lease-Back Transaction entered into on
or prior to the Release Date with respect to any Operating Property if, in any
case, the commitment by or on behalf of the purchaser is or was obtained more
than eighteen (18) months after the later of (i) the completion of the
acquisition, construction, or development of such Operating Property or (ii) the
placing in operation of such Operating Property or of such Operating Property as
constructed, developed, or substantially repaired, altered, or improved, unless
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(x) the Company would be entitled pursuant to Section 201(a) to issue, assume,
or guarantee Debt secured by a Lien on such Operating Property without equally
and ratably securing the Senior Notes Due 2005 or (y) the Company would be
entitled pursuant to Section 201(b), after giving effect to such Sale and
Lease-Back Transaction, to incur $1.00 of additional Debt secured by Liens
(other than Liens permitted by Section 201(a)) or (z) the Company shall apply or
cause to be applied, in the case of a sale or transfer for cash, an amount equal
to the net proceeds thereof (but not less than the fair value (as determined by
the Company's Chief Financial Officer) of such Operating Property at the date of
such sale or transfer) and, in the case of a sale or transfer otherwise than for
cash, an amount equal to the fair value (as determined by the Board of
Directors) of the Operating Property so leased, to the retirement, within one
hundred eighty (180) days after the later to occur of the effective date of such
Sale and Lease-Back Transaction or the Release Date, of Notes or other Debt of
the Company ranking equally with, the Senior Notes Due 2005; PROVIDED, HOWEVER,
that any such retirement of Notes shall be in accordance with the terms and
provisions of the Indenture and the Senior Notes Due 2005; PROVIDED, FURTHER,
that the amount to be applied to such retirement of Notes or other Debt shall be
reduced by an amount equal to the sum of (a) an amount equal to the redemption
price with respect to Notes delivered within such one hundred eighty (180)-day
period to the Trustee for retirement and cancellation and (b) the principal
amount, plus any premium or fee paid in connection with any redemption in
accordance with the terms of other Debt voluntarily retired by the Company
within such one hundred eighty (180)-day period, excluding in each case
retirements pursuant to mandatory sinking fund or prepayment provisions and
payments at maturity.
SECTION 203. DEFINITIONS
For purposes of Section 201 and Section 202 of this Second Supplemental
Indenture, the following terms shall have the following meanings:
"Capitalization" means the total of all the following items appearing
on, or included in, the consolidated balance sheet of the Company: (i)
liabilities for indebtedness maturing more than twelve (12) months from the date
of determination; and (ii) common stock, preferred stock, premium on capital
stock, capital surplus, capital in excess of par value, and retained earnings
(however the foregoing may be designated), less, to the extent not otherwise
deducted, the cost of shares of capital stock of the Company held in its
treasury.
Subject to the foregoing, Capitalization shall be determined in
accordance with generally accepted accounting principles and practices
applicable to the type of business in which the Company is engaged and that are
approved by independent accountants regularly retained by the Company, and may
be determined as of a date not more than (sixty) 60 days prior to the happening
of an event for which such determination is being made.
The term "Debt" means any outstanding debt for money borrowed evidenced
by notes, debentures, bonds, or other securities, or guarantees of any debt.
The term "Net Tangible Assets" means the amount shown as total assets
on the consolidated balance sheet of the Company, less the following: (i)
intangible assets including, but without limitation, such items as goodwill,
trademarks, trade names, patents, and unamortized debt discount and expense and
other regulatory assets carried as an asset on the Company's consolidated
balance sheet; and (ii) appropriate adjustments, if any, on account of minority
interests.
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Net Tangible Assets shall be determined in accordance with generally
accepted accounting principles and practices applicable to the type of business
in which the Company is engaged and that are approved by the independent
accountants regularly retained by the Company, and may be determined as of a
date not more than (sixty) 60 days prior to the happening of the event for which
such determination is being made.
The term "Operating Property" means (i) any interest in real property
owned by the Company and (ii) any asset owned by the Company that is depreciable
in accordance with generally accepted accounting principles, excluding in either
case, any interest of the Company as lessee under any lease (except for a lease
that results from a Sale and Lease-Back Transaction) which has been or would be
capitalized on the books of the lessee in accordance with generally accepted
accounting principles.
The term "Sale and Lease-Back Transaction" means any arrangement with
any person providing for the leasing to the Company of any Operating Property
(except for temporary leases for a term, including any renewal or potential
renewal thereof, of not more than forty-eight (48) months), which Operating
Property has been or is to be sold or transferred by the Company to such person;
PROVIDED, HOWEVER, Sale and Lease-Back Transaction shall not include any
arrangement first entered into prior to the date hereof, and shall not include
any transaction pursuant to which the Company sells Operating Property to, and
thereafter purchases energy or services from, any entity if such transaction is
ordered or authorized by any regulatory authority having jurisdiction over the
Company or its operations or is entered into pursuant to any plan or program of
industry restructuring ordered or authorized by any regulatory authority.
The term "Value" means, with respect to a Sale and Lease-Back
Transaction, as of any particular time, the amount equal to the greater of (1)
the net proceeds to the Company from the sale or transfer of the property leased
pursuant to such Sale and Lease-Back Transaction or (2) the net book value of
such property, as determined in accordance with generally accepted accounting
principles by the Company at the time of entering into such Sale and Lease-Back
Transaction, in either case multiplied by a fraction, the numerator of which
shall be equal to the number of full years of the term of the lease that is part
of such Sale and Lease-Back Transaction remaining at the time of determination
and the denominator of which shall be equal to the number of full years of such
term, without regard, in any case, to any renewal or extension options contained
in such lease.
ARTICLE III
FORM OF
SENIOR NOTES DUE 2005
SECTION 301. The Senior Notes Due 2005 and the Trustee's certificate of
authentication to appear thereon are to be substantially in the following forms:
[Form of Face of Senior Notes Due 2005]
[Insert applicable depositary legend or legends, which initially shall be the
following: THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN
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SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO CAROLINA POWER
& LIGHT COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SENIOR NOTE DUE 2005 MAY, AS PROVIDED IN THE INDENTURE, BE
EXCHANGED FOR SENIOR NOTES DUE 2005 IN THE FORM OF DEFINITIVE CERTIFICATES OF
LIKE TENOR AND OF AN EQUAL AGGREGATE PRINCIPAL AMOUNT, IN AUTHORIZED
DENOMINATIONS, REGISTERED IN THE NAMES OF SUCH PERSONS AS THE DEPOSITARY SHALL
INSTRUCT THE TRUSTEE, IF (I) THE DEPOSITARY GIVES NOTICE TO THE COMPANY OR TO
THE TRUSTEE THAT IT IS UNWILLING OR UNABLE TO CONTINUE AS DEPOSITARY AND A
SUCCESSOR DEPOSITARY IS NOT APPOINTED BY THE COMPANY WITHIN 90 DAYS, (II) THE
DEPOSITARY CEASES TO BE ELIGIBLE UNDER THE INDENTURE AND A SUCCESSOR DEPOSITARY
IS NOT APPOINTED BY THE COMPANY WITHIN 90 DAYS OR (III) THE COMPANY DECIDES TO
DISCONTINUE USE OF THE SYSTEM OF BOOK-ENTRY TRANSFERS THROUGH THE DEPOSITARY OR
ITS SUCCESSOR. ANY SUCH EXCHANGE SHALL BE MADE UPON RECEIPT BY THE TRUSTEE OF AN
OFFICER'S CERTIFICATE THEREFOR AND A WRITTEN INSTRUCTION FROM THE DEPOSITARY
SETTING FORTH THE NAME OR NAMES IN WHICH THE TRUSTEE IS TO REGISTER SUCH SENIOR
NOTES DUE 2005 IN THE FORM OF DEFINITIVE CERTIFICATES. ]
CAROLINA POWER & LIGHT COMPANY
Senior Notes, 7.50% Series Due April 1, 2005
No. ___ $___________
CUSIP No. _________
Carolina Power & Light Company, a corporation duly organized and
existing under the laws of the State of North Carolina (herein called the
"Company," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_____________, or registered assigns, the principal sum of _____________________
and No/100 Dollars ($_______________) on April 1, 2005, and to pay interest
thereon from April 11, 2000 or from the most recent Interest Payment Date with
respect to which interest has been paid or duly provided for, semi-annually on
April 1 and October 1 in each year (each an "Interest Payment Date"), commencing
October 1, 2000, at the rate of 7.50% per annum, until the principal hereof is
paid or made available for payment, PROVIDED that any principal and premium, and
any such installment of interest, which is overdue shall bear interest at the
rate of 7.50% per annum (to the extent that the payment of such interest shall
be legally enforceable), from the dates such amounts are due until they are paid
or made available for payment, and such interest shall be payable on demand. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest, which shall be March
15 or September 15 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this Note
(or one or more Predecessor Notes) is registered at the close of business on
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a Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Notes of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes of this series may be listed, and upon
such notice as may be required by such exchange, all as more fully provided in
said Indenture.
Payment of the principal of (and premium if any) and such interest on
this Note will be made at the office or agency of the Company maintained for
that purpose in 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 payment of
public and private debts; PROVIDED, HOWEVER, that at the option of the Company
payment of such interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Note Register.
The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. Interest will accrue from each
prior Interest Payment Date to, but not including, the relevant payment date. In
the event that any date on which interest is payable on the Notes of this series
is not a Business Day at any Place of Payment, then payment of interest or
principal and premium, if any, need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, and, if such payment is made or
duly provided for on such Business Day, no interest shall accrue on the amount
so payable for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be, to such Business Day. A "Business
Day" means when used with respect to a Place of Payment or any other particular
location specified in the Indenture, means any day, other than a Saturday or
Sunday, which is not a day on which banking institutions or trust companies in
such Place of Payment or other location are generally authorized or required by
law, regulation or executive order to remain closed.
Reference is hereby made to the further provisions of this Note set
forth below, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to below by manual signature, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
CAROLINA POWER & LIGHT COMPANY
By: ____________________________________
[SEAL] [Name]
[Title]
Attest:
_____________________________________
[Name]
[Title]
[Form of Reverse of Senior Notes Due 2005]
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This Note is one of a duly authorized issue of securities of the
Company (herein called the "Notes"), issued and to be issued in one or more
series under an Indenture (For Senior Notes), dated as of March 1, 1999 (herein,
together with any indenture supplemental thereto, including the Second
Supplemental Indenture dated as of April 1, 2000, called the "Indenture," which
term shall have the meaning assigned to it in such instrument), between the
Company and The Bank of New York, as Trustee (herein called the "Trustee," which
term includes any successor trustee under the Indenture), and reference is
hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Notes and of the terms upon which the Notes are,
and are to be, authenticated and delivered. This Note is one of the series
designated on the face hereof.
Prior to the Release Date (as hereinafter defined), this Note will be
secured by first mortgage bonds (the "Senior Note First Mortgage Bonds")
delivered by the Company to the Trustee for the benefit of all Holders of Notes
from time to time Outstanding, issued under the Mortgage and Deed of Trust,
dated as of May 1, 1940, from the Company to Irving Trust Company (now The Bank
of New York) and Frederick G. Herbst (Douglas J. MacInnes, successor), as
trustees (the "Mortgage Trustees"), as supplemented and amended (the "First
Mortgage"). Reference is made to the First Mortgage for a description of
property mortgaged and pledged, the nature and extent of the security, the
rights of the holders of the first mortgage bonds under the First Mortgage and
of the Mortgage Trustees in respect thereof, the duties and immunities of the
Mortgage Trustees and the terms and conditions upon which the Senior Note First
Mortgage Bonds are secured and the circumstances under which additional first
mortgage bonds may be issued.
FROM AND AFTER SUCH TIME AS ALL FIRST MORTGAGE BONDS, OTHER THAN FIRST
MORTGAGE BONDS WHICH DO NOT IN AGGREGATE PRINCIPAL AMOUNT EXCEED THE GREATER OF
FIVE PERCENT (5%) OF NET TANGIBLE ASSETS OR FIVE PERCENT (5%) OF CAPITALIZATION,
HAVE BEEN RETIRED THROUGH PAYMENT, REDEMPTION OR OTHERWISE (INCLUDING THOSE
FIRST MORTGAGE BONDS THE PAYMENT FOR WHICH HAS BEEN PROVIDED FOR IN ACCORDANCE
WITH THE FIRST MORTGAGE) AT, BEFORE OR AFTER THE MATURITY THEREOF, PROVIDED THAT
NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING (THE "RELEASE
DATE"), THE SENIOR NOTE FIRST MORTGAGE BONDS SHALL CEASE TO SECURE THE NOTES IN
ANY MANNER.
The Notes of this series are subject to redemption by the Company, at
its option, in whole, at any time, or in part, from time to time, upon notice as
provided in the Indenture (not less than 30 nor more than 60 days prior to a
date fixed for redemption (the "Redemption Date")) at a redemption price equal
to the greater of (i) 100% of their principal amount or (ii) the sum of the
present values of the remaining scheduled payments of principal and interest
thereon from the Redemption Date to the maturity date, computed by discounting
such payments, in each case, to the Redemption Date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Yield plus 25 basis points (.25%), plus in each case accrued interest on the
principal amount thereof to the Redemption Date (the "Redemption Price"), such
Redemption Price to be set forth in an Officer's Certificate delivered to the
Trustee on or before the Redemption Date and upon which the Trustee may
conclusively rely.
If notice has been given as provided in the Indenture and funds for the
redemption of any Notes (or any portion thereof) called for redemption shall
have been made available on the redemption date referred to in such notice, such
Notes (or any portion thereof) will cease to bear interest on the date fixed for
such redemption specified in such notice and the only right of the Holders of
such Notes will be to receive payment of the Redemption Price.
Notice of any optional redemption of Notes of this series (or any
portion thereof) will be given to Holders at their addresses, as shown in the
Note Register for such Notes, not more than 60 nor less than 30 days prior to
the date fixed for redemption. The notice of redemption will specify, among
other items, the method of calculation of the Redemption Price and the principal
amount of the Notes held by such Holder to
12
be redeemed. If less than all of the Notes are to be redeemed at the option of
the Company, the Trustee shall select, in such manner as it shall deem fair and
appropriate, the portion of such Note to be redeemed in whole or in part.
As used herein:
"Treasury Yield" means, with respect to any Redemption Date,
the rate per annum equal to the semiannual equivalent yield to maturity
of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker having a maturity
comparable to the remaining term of the Notes of this series that would
be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the Notes of this
series. "Independent Investment Banker" means Chase Securities Inc. or,
if such firm is unwilling or unable to select the Comparable Treasury
Issue, an independent investment banking institution of national
standing selected by the Company and appointed by the Trustee.
"Comparable Treasury Price" means, with respect to any
Redemption Date, (i) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) on the third Business Day preceding such
Redemption Date, as set forth in the daily statistical release (or any
successor release) published by the Federal Reserve Bank of New York
and designated "Composite 3:30 p.m. Quotations for U.S. Government
Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, the
average of the Reference Treasury Dealer Quotations for such Redemption
Date.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. on the third Business Day
preceding such Redemption Date. The Company shall furnish the Trustee a
notice in writing at least five Business Days and not more than ten
Business Days prior to such Redemption Date of (a) the name of each
Reference Treasury Dealer, (b) the Redemption Date, and (c) the third
Business Day preceding the Redemption Date.
"Reference Treasury Dealer" means each of Banc One Capital
Markets, Inc., Chase Securities Inc. and J.P. Morgan Securities Inc.,
and their respective successors; provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government Securities dealer
in New York City (a "Primary Treasury Dealer"), the Company shall
substitute therefor another Primary Treasury Dealer.
The Notes of this series will not be subject to any sinking fund.
In the event of redemption of this Note in part only, a new Note or
Notes of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Note upon compliance with certain conditions set
forth in the Indenture.
If an Event of Default with respect to Notes of this series shall occur
and be continuing, the principal of the Notes may be declared due and payable in
the manner and with the effect provided in the
13
Indenture and, upon such declaration, the Trustee shall demand the acceleration
of the payment of principal of the Senior Note First Mortgage Bonds as provided
in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes to be affected under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of specified percentages of the Notes Outstanding. The Indenture also
contains provisions permitting the Holders of specified percentages in principal
amount of the Notes at the time Outstanding, on behalf of the Holders of all
Notes, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange therefor or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes of this series, the Holders of not less than a majority in aggregate
principal amount of the Notes of all series at the time Outstanding in respect
of which an Event of Default shall have occurred and be continuing shall have
made written request to the Trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee reasonable indemnity, and
the Trustee shall not have received from the Holders of a majority in principal
amount of Notes of all series at the time Outstanding in respect of which an
Event of Default shall have occurred and be continuing a direction inconsistent
with such request, and shall have failed to institute any such proceeding, for
60 days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Note for
the enforcement of any payment of principal hereof or any premium or interest
hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in any place where the principal of and any premium and interest on
this Note are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Note Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes of this series are exchangeable for a like aggregate principal amount of
Notes of this series and of like tenor of a different authorized denomination,
as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the
14
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
[Form of Certificate of Authentication]
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein referred to
in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK,
as Trustee
By:______________________________________
Authorized Signatory
ARTICLE IV
ORIGINAL ISSUE OF SENIOR NOTES DUE 2005
SECTION 401. Senior Notes Due 2005 may, upon execution of this Second
Supplemental Indenture, and from time to time thereafter, be executed by the
Company by an Authorized Officer and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Senior Notes Due 2005 in accordance with and in such aggregate principal amounts
as shall be specified in a Company Order therefor without any further action by
the Company.
ARTICLE V
PAYING AGENT AND REGISTRAR
SECTION 501. The Bank of New York will be the Paying Agent and Note
Registrar for the Senior Notes Due 2005.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 601. Except as otherwise expressly provided in this Second
Supplemental Indenture or in the form of Senior Notes Due 2005 or otherwise
clearly required by the context hereof or thereof, all terms used herein or in
said form of Senior Notes Due 2005 that are defined in the Indenture shall have
the several meanings respectively assigned to them thereby.
SECTION 602. The Indenture, as heretofore supplemented and as further
supplemented by this Second Supplemental Indenture, is in all respects ratified
and confirmed, and this Second Supplemental Indenture shall be deemed part of
the Indenture in the manner and to the extent herein and therein provided.
15
SECTION 603. The Trustee hereby accepts the trusts herein declared,
provided, created, supplemented, or amended and agrees to perform the same upon
the terms and conditions herein and in the Indenture 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 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 VIII of
the Indenture shall apply to and form part of this 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 Second Supplemental Indenture.
----------------------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
16
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
CAROLINA POWER & LIGHT COMPANY
By:_____________________________________
[SEAL] Mark F. Mulhern
Vice President and Treasurer
ATTEST:
______________________________________
Patricia Kornegay-Timmons
Assistant Secretary
(TRUSTEE'S SIGNATURE PAGE FOLLOWS)
17
TRUSTEE'S SIGNATURE PAGE
SECOND SUPPLEMENTAL INDENTURE, DATED AS OF APRIL 1, 2000, TO
INDENTURE (FOR SENIOR NOTES), DATED AS OF MARCH 1, 1999
THE BANK OF NEW YORK, as Trustee
By:____________________________________
[SEAL] Michael Culhane
Vice President
ATTEST:
______________________________________
Suzanne J. MacDonald
Vice President and Assistant Secretary
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