Exhibit 4(b)
COUNTERPART ___
OF 110 COUNTERPARTS
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CAROLINA POWER & LIGHT COMPANY
TO
THE BANK OF NEW YORK
(formerly Irving Trust Company)
AND
DOUGLAS J. MacINNES
(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, Wafaa Orfy and
W.T. Cunningham)
as Trustees under Carolina Power &
Light Company's Mortgage and Deed
of Trust, dated as of May 1, 1940
----------------
Sixty-eighth Supplemental Indenture
Providing among other things for
First Mortgage Bonds, 7.50% Senior Note Series Due April 1, 2005
(Seventieth Series)
-----------------
Dated as of April 1, 2000
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Prepared by and Return to:
Hunton & Williams (TSG)
Post Office Box 109
Raleigh, North Carolina 27602
SIXTY-EIGHTH SUPPLEMENTAL INDENTURE
INDENTURE, dated as of April 1, 2000, 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 DOUGLAS J. MACINNES (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, Wafaa Orfy and W.T. Cunningham), whose post office
address is 1784 W. McGalliard Avenue, Hamilton, New Jersey 08610 (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-eighth 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
2
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, by the Sixty-sixth Supplemental Indenture mentioned below, the
Company, among other things, appointed Douglas J. MacInnes as Individual Trustee
in succession to said W.T. Cunningham (resigned), and Douglas J. MacInnes
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
3
Designation Dated as of
----------- -----------
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
Sixty-second Supplemental Indenture.............. January 15, 1994
Sixty-third Supplemental Indenture............... May 1, 1994
Sixty-fourth Supplemental Indenture.............. August 15, 1997
Sixty-fifth Supplemental Indenture............... April 1, 1998
Sixty-sixth Supplemental Indenture............... March 1, 1999
Sixty-seventh Supplemental Indenture............. March 1, 2000
which supplemental indentures (other than said Sixty-fifth Supplemental
Indenture and said Sixty-seventh Supplemental Indenture) were recorded in
various Counties in the States of North Carolina and South Carolina, and were
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, no recording or filing of said Sixty-fifth Supplemental
Indenture in any manner or place is required by law in order to fully preserve
and protect the security of the bondholders and all rights of the Trustees or is
necessary to make effective the lien intended to be created by the Mortgage or
said Sixty-fifth Supplemental Indenture; and said Sixty-seventh Supplemental
Indenture was recorded only in Rowan County, North Carolina to make subject to
the lien of the Mortgage, as supplemented, certain property of the Company
located in said County intended to be subject to the lien of the Mortgage, as
supplemented, all in accordance with Section 42 of the Mortgage; and
4
WHEREAS, the Mortgage and said First through Sixty-seventh Supplemental
Indentures (other than said Sixty-fifth and said Sixty-seventh Supplemental
Indentures) were or are to be recorded in all Counties in the States of North
Carolina and South Carolina in which this Sixty-eighth 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 None
6-3/8% Series due 1997.......................... 40,000,000 None
6-7/8% Series due 1998.......................... 40,000,000 None
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 None
8-1/8% Series due November 1, 2003.............. 100,000,000 None
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 None
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 None
Pollution Control Series H.................... 70,000,000 None
Pollution Control Series I.................... 70,000,000 None
5
Principal Principal
Amount Amount
Series Issued Outstanding
------ --------- -----------
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 None
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 None
8-1/8% Series due November 15, 1993........... 100,000,000 None
Secured Medium-Term Notes, Series B........... 100,000,000 None
8-7/8% Series due February 15, 2021........... 125,000,000 None
9% Series due April 1, 2022................... 100,000,000 None
8-5/8% Series due September 15, 2021.......... 100,000,000 100,000,000
5.20% Series due January 1, 1995.............. 125,000,000 None
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 None
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 None
Secured Medium-Term Notes, Series C........... 200,000,000 None
6-7/8% Series due August 15, 2023............. 100,000,000 100,000,000
5-7/8% Series due January 15, 2004............ 150,000,000 150,000,000
Pollution Control Series L.................... 72,600,000 72,600,000
Pollution Control Series M.................... 50,000,000 50,000,000
6.80% Series due August 15, 2007.............. 200,000,000 200,000,000
5.95% Senior Note Series due March 1, 2009.... 400,000,000 400,000,000
which bonds are sometimes called bonds of the First through Sixty-ninth 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
6
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-eighth Supplemental Indenture, and the terms of the bonds of the
Seventieth 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 Douglas J. MacInnes, 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-eighth 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-eighth 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-eighth 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-eighth 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-eighth
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
SEVENTIETH SERIES OF BONDS
SECTION 1. There shall be a series of bonds designated "7.50% Senior
Note Series Due April 1, 2005" (herein sometimes referred to as the "Seventieth
Series"), each of which shall also bear the descriptive title "First
8
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
Seventieth Series shall be initially issued in the aggregate principal amount of
$300,000,000, mature on April 1, 2005, bear interest at the rate of 7.50% per
annum, payable from April 11, 2000, if the date of said bonds is prior to
October 1, 2000, or, if the date of said bonds is after October 1, 2000, from
the April or October next preceding the date of said bonds, and thereafter
semi-annually on April 1 and October 1 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.
At the option of the registered owner, any bonds of the Seventieth
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 Seventieth 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 Seventieth Series will not be transferable except (i) as
required to effect an assignment to a successor trustee under the Indenture (For
Senior Notes) dated as of March 1, 1999, between the Company and The Bank of New
York, as trustee (said trustee or any successor trustee under said Senior Note
Indenture being hereinafter referred to as the "Senior Note Trustee"), as the
same may be supplemented from time to time (the "Senior Note Indenture") or as
otherwise provided in Sections 407 and 409 of the Senior Note Indenture, or (ii)
in compliance with a final order of a court of competent jurisdiction in
connection with any bankruptcy or reorganization proceeding of the Company.
Upon any exchange or transfer of bonds of the Seventieth 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.
The Company's obligation to make payments with respect to the principal
of, premium, if any, and or interest on, the bonds of the Seventieth Series
shall be fully or partially satisfied and discharged to the extent that, at the
time any such payment shall be due, the corresponding amount then due of
principal of, and/or premium, if any, and/or interest then due on, the Company's
Senior Notes, 7.50% Series Due April 1, 2005 (hereinafter called the "Senior
Notes"), issued contemporaneously with the bonds of the Seventieth Series, shall
have been fully or partially paid (other than by the application of the proceeds
of a payment in respect of the bonds of the Seventieth Series), as the case may
be, or there shall have been deposited with the Senior Note Trustee pursuant to
the Senior Note Indenture trust funds sufficient under such indenture to fully
or partially pay, as the case may be, the corresponding amount then due of
principal of, and/or premium, if any and/or interest on, the Senior Notes (other
than by the application of the proceeds of a payment in respect of the bonds of
the Seventieth Series).
SECTION 2. Except as otherwise provided in Section 406 of the Senior
Note Indenture, the registered owner of all bonds of the Seventieth Series shall
be the Senior Note Trustee.
SECTION 3. Upon payment of the principal of, and premium if any, and
interest due on the Senior Notes, whether at maturity or prior to maturity by
acceleration, redemption or otherwise, or upon provision for the payment thereof
having been made in accordance with the Senior Note Indenture (other than by the
application of the proceeds of a payment in respect of the bonds of the
Seventieth Series), bonds of the Seventieth Series in a principal amount equal
to the principal amount of Senior Notes so paid or for which such provision for
payment has been made shall be deemed fully paid, satisfied and discharged and
the obligations of the Company thereunder shall be terminated and the bonds of
the Seventieth Series shall be canceled by the Corporate Trustee in accordance
with Section 56 of the Mortgage, except as otherwise provided in the Senior Note
Indenture. From and after the Release Date (as defined in the Senior Note
Indenture, the "Release Date"), the bonds of the Seventieth Series shall be
deemed fully paid, satisfied
9
and discharged and the obligation of the Company thereunder shall be terminated.
On the Release Date, the bonds of the Seventieth Series shall be canceled by
the Corporate Trustee in accordance with Section 56 of the Mortgage.
The bonds of the Seventieth 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 Mortgage (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 (as defined in the Second Supplemental Indenture, dated as of
April 1, 2000, supplemental to the Senior Note Indenture) 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 a Treasurer's Certificate delivered to the Corporate Trustee on or
before the Redemption Date and upon which the Trustees may conclusively rely.
At any time the Senior Notes or any portion thereof have become due and
payable in accordance with Section 505 of the Senior Note Indenture, the bonds
of the Seventieth Series will thereupon automatically become due and payable
pursuant to the redemption provisions of the preceding paragraph.
The Company covenants and agrees that, prior to the Release Date, it
will not take any action that would cause the outstanding principal amount of
the bonds of the Seventieth Series to be less than the then outstanding
principal amount of the Senior Notes.
The Corporate Trustee may conclusively presume that the obligation of
the Company to pay the principal of, and premium, if any, and interest on the
bonds of the Seventieth Series as the same shall become due and payable shall
have been fully satisfied and discharged unless and until it shall received a
written notice from the Senior Note Trustee, signed by its President, a Vice
President or a Trust Officer, stating that the corresponding payment of
principal of or interest on the Senior Notes has become due and payable and has
not been fully paid and, with respect to principal and premium, if any, of the
Senior Notes, specifying the principal of, and premium, if any, on the Senior
Notes then due and payable and the amount of funds required to make such
payment, and, with respect to interest on the Senior Note, specifying the last
date to which interest has been paid and the amount of funds required to make
such payment.
ARTICLE II
DIVIDEND COVENANT
SECTION 4. The Company covenants and agrees that, so long as any of the
bonds of the Seventieth 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
10
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 2000 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 4.
ARTICLE III
CERTAIN PROVISIONS WITH RESPECT TO FUTURE ADVANCES
SECTION 5. Upon the filing of this Sixty-eighth 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 $2,016,130,000 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 6. Subject to any amendments provided for in this Sixty-eighth
Supplemental Indenture, the terms defined in the Mortgage, as heretofore
supplemented, shall, for all purposes of this Sixty-eighth Supplemental
Indenture, have the meanings specified in the Mortgage, as heretofore
supplemented.
SECTION 7. 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-eighth
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-eighth
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-eighth Supplemental Indenture.
SECTION 8. Subject to the provisions of Article XV and Article XVI of
the Mortgage, whenever in this Sixty-eighth 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-eighth 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.
11
SECTION 9. Nothing in this Sixty-eighth 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-eighth Supplemental Indenture or any covenant,
condition, stipulation, promise or agreement hereof, and all the covenants,
conditions, stipulations, promises and agreements in this Sixty-eighth
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 10. This Sixty-eighth 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.
12
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 Douglas J.
MacInnes 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/ Mark F. Mulhhern
-----------------------------------------
Mark F. Mulhhern, President and Treasurer
ATTEST:
/s/ Patricia Kornegay-Timmons
- ----------------------------------------------
Patricia Kornegay-Timmons, Assistant Secretary
Executed, sealed and delivered by
CAROLINA POWER & LIGHT COMPANY
in the presence of:
/s/ Sarah C. Nelson
- ----------------------------------------------
Sarah C. Nelson
/s/ Kimberley C. Cross
- ----------------------------------------------
Kimberley C. Cross
(Trustees' Signature Page Follows)
13
Trustees' Signature Page
Sixty-eighth Supplemental Indenture, dated as of April 1, 2000,
to Mortgage and Deed of Trust, dated as of May 1, 1940
THE BANK OF NEW YORK, as Trustee
By:/s/ Michael Culhane
-----------------------------------
Michael Culhane, Vice President
ATTEST:
/s/ Suzanne J. MacDonald
- --------------------------------------
Suzanne J. MacDonald,
Vice President and Assistant Secretary
/s/ Douglas J. MacInnes(L.S.)
-------------------------------
Douglas J. MacInnes
Executed, sealed and delivered
by THE BANK OF NEW YORK,and
DOUGLAS J. MACINNES
in the presence of:
/s/ Sherma Thomas
- ---------------------------------------
Sherma Thomas
/s/ Patrick J. O'Leary
- ---------------------------------------
Patrick J. O'Leary
STATE OF NORTH CAROLINA )
) SS.:
COUNTY OF WAKE )
This 1st day of April, A.D. 2000, personally came before me, DIANE T.
PARRISH, a Notary Public for Wake County, MARK F. MULHERN, who, being by me duly
sworn, says that he is the Vice President and 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 him in behalf of said corporation by its authority duly given. And the
said MARK F. MULHERN acknowledged the said writing to be the act and deed of
said corporation.
On the 1st day of April, in the year of 2000, before me personally came
MARK F. MULHERN, to me known, who, being by me duly sworn, did depose and say
that he resides at 109 Deer Valley Drive, Apex, North Carolina 27502, State of
North Carolina; that he is the Vice President and Treasurer of CAROLINA POWER &
LIGHT COMPANY, 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.
/s/ Diane T. Parrish
-------------------------------------------
DIANE T. PARRISH
Notary Public, State of North Carolina
Wake County
My Commission Expires: July 7, 2003
STATE OF NORTH CAROLINA )
) SS.:
COUNTY OF WAKE )
Personally appeared before me SARAH C. NELSON, 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 MARK F. MULHERN, the Vice
President and Treasurer, with PATRICIA KORNEGAY-TIMMONS, an Assistant Secretary,
of said CAROLINA POWER & LIGHT COMPANY, sign and attest the same, and that she,
deponent, with KIMBERLEY C. CROSS, witnessed the execution and delivery thereof
as the act and deed of said CAROLINA POWER & LIGHT COMPANY.
/s/ Sarah C. Nelson
-------------------------------------
Sarah C. Nelson
Sworn to before me this
1st day of April, 2000
/s/ Diane T. Parrish
- ----------------------------------------
DIANE T. PARRISH
Notary Public, State of North Carolina
Wake County
My Commission Expires: July 7, 2003
15
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
This 4th day of April, A.D. 2000, personally came before me, WILLIAM J.
CASSELS, a Notary Public in and for the County aforesaid, MICHAEL CULHANE, who,
being by me duly sworn, says that he is a 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
MICHAEL CULHANE acknowledged the said writing to be the act and deed of said
corporation.
On the 4th day of April, in the year 2000, before me personally came
MICHAEL CULHANE, to me known, who, being by me duly sworn, did depose and say
that he resides in Bay Ridge, New York; that he is a 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, WILLIAM J. CASSELS, a Notary Public in and for the County aforesaid,
do hereby certify that DOUGLAS J. MACINNES personally appeared before me this
day and acknowledged the due execution by him as successor Individual Trustee of
the foregoing instrument.
On the 4th day of April, 2000, before me personally came DOUGLAS J.
MACINNES , 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 4th day of April, 2000.
/s/ William J. Cassels
------------------------------------
WILLIAM J. CASSELS
Notary Pubic, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate filed in New York County
Commission Expires May 16, 2000
16
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
Personally appeared before me SHERMA THOMAS, who, being duly sworn,
says that she saw the corporate seal of THE BANK OF NEW YORK affixed to the
above written instrument and that she also saw MICHAEL CULHANE, a Vice
President, with SUZANNE J. MACDONALD, a Vice President and Assistant Secretary,
of said THE BANK OF NEW YORK, sign and attest the same, and that she, deponent,
with PATRICK J. O'LEARY, witnessed the execution and delivery thereof as the act
and deed of said THE BANK OF NEW YORK.
Personally appeared before me SHERMA THOMAS, who, being duly sworn,
says that she saw the within named DOUGLAS J. MACINNES, as successor Individual
Trustee, sign, seal and as his act and deed deliver the foregoing instrument for
the purposes therein mentioned, and that she, deponent, with PATRICK J. O'LEARY,
witnessed the execution thereof.
/s/ Sherma Thomas
-----------------------------------
SHERMA THOMAS
Sworn to before me this
4th day of April, 2000
/s/ William J. Cassels
- ----------------------------------------------
WILLIAM J. CASSELS
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate filed in New York County
Commission Expires May 16, 2000
17