EXHIBIT 4(C)
COUNTERPART __
OF 110 COUNTERPARTS
================================================================================
CAROLINA POWER & LIGHT COMPANY
TO
THE BANK OF NEW YORK
(FORMERLY IRVING TRUST COMPANY)
AND
W.T. CUNNINGHAM
(SUCCESSOR TO FREDERICK G. HERBST, RICHARD H. WEST, J.A. AUSTIN, E.J. MCCABE,
G. WHITE, D.W. MAY, J.A. VAUGHAN, JOSEPH J. ARNEY AND WAFAA ORFY)
DOUGLAS J. MACINNES
(HEREIN BECOMING SUCCESSOR TO W.T. CUNNINGHAM)
AS TRUSTEES UNDER CAROLINA POWER &
LIGHT COMPANY'S MORTGAGE AND DEED
OF TRUST, DATED AS OF MAY 1, 1940
----------------
SIXTY-SIXTH SUPPLEMENTAL INDENTURE
PROVIDING AMONG OTHER THINGS FOR
FIRST MORTGAGE BONDS, 5.95% SENIOR NOTE SERIES DUE MARCH 1, 2009
(SIXTY-NINTH SERIES)
-----------------
DATED AS OF MARCH 1, 1999
================================================================================
SIXTY-SIXTH SUPPLEMENTAL INDENTURE
INDENTURE, dated as of March 1, 1999, 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-sixth 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
2
accepting said appointment, which instrument was recorded in various Counties in
the States of North Carolina and South Carolina; and
WHEREAS, by the Forty-fifth Supplemental Indenture mentioned below, the
Company, among other things, appointed Wafaa Orfy as Individual Trustee in
succession to said Joseph J. Arney (resigned), and Wafaa Orfy accepted said
appointment; and
WHEREAS, by the Forty-ninth Supplemental Indenture mentioned below, the
Company, among other things, appointed W.T. Cunningham as Individual Trustee in
succession to said Wafaa Orfy (resigned), and W.T. Cunningham accepted said
appointment; and
WHEREAS, such instruments were indexed and cross-indexed in the real and
chattel mortgage records in various Counties in the States of North Carolina and
South Carolina; and
WHEREAS, by the Mortgage, the Company covenanted that it would execute
and deliver such supplemental indenture or indentures and such further
instruments and do such further acts as might be necessary or proper to carry
out more effectually the purposes of the Mortgage and to make subject to the
lien of the Mortgage any property thereafter acquired intended to be subject to
the lien thereof; and
WHEREAS, for said purposes, among others, the Company executed and
delivered to the Trustees the following supplemental indentures:
DESIGNATION DATED AS OF
----------- -----------
First Supplemental Indenture...................... January 1, 1949
Second Supplemental Indenture..................... December 1, 1949
Third Supplemental Indenture...................... February 1, 1951
Fourth Supplemental Indenture..................... October 1, 1952
Fifth Supplemental Indenture...................... March 1, 1958
Sixth Supplemental Indenture...................... April 1, 1960
Seventh Supplemental Indenture.................... November 1, 1961
Eighth Supplemental Indenture..................... July 1, 1964
Ninth Supplemental Indenture...................... April 1, 1966
Tenth Supplemental Indenture...................... October 1, 1967
Eleventh Supplemental Indenture................... October 1, 1968
Twelfth Supplemental Indenture.................... January 1, 1970
Thirteenth Supplemental Indenture................. August 1, 1970
Fourteenth Supplemental Indenture................. January 1, 1971
Fifteenth Supplemental Indenture.................. October 1, 1971
Sixteenth Supplemental Indenture.................. May 1, 1972
Seventeenth Supplemental Indenture................ May 1, 1973
Eighteenth Supplemental Indenture................. November 1, 1973
Nineteenth Supplemental Indenture................. May 1, 1974
Twentieth Supplemental Indenture.................. December 1, 1974
Twenty-first Supplemental Indenture............... April 15, 1975
Twenty-second Supplemental Indenture.............. October 1, 1977
Twenty-third Supplemental Indenture............... June 1, 1978
Twenty-fourth Supplemental Indenture.............. May 15, 1979
Twenty-fifth Supplemental Indenture............... November 1, 1979
Twenty-sixth Supplemental Indenture............... November 1, 1979
Twenty-seventh Supplemental Indenture............. April 1, 1980
Twenty-eighth Supplemental Indenture.............. October 1, 1980
Twenty-ninth Supplemental Indenture............... October 1, 1980
Thirtieth Supplemental Indenture.................. December 1, 1982
3
DESIGNATION DATED AS OF
----------- -----------
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
which supplemental indentures (other than Sixty-Fifth 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, the Mortgage and First through Sixty-Fourth Supplemental
Indentures were or are to be recorded in all Counties in the States of North
Carolina and South Carolina in which this Sixty-sixth 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:
4
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
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
5
PRINCIPAL PRINCIPAL
AMOUNT AMOUNT
SERIES ISSUED OUTSTANDING
------ ------ -----------
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 50,000,000
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....................150,000,000 150,000,000
7-1/2% Series due March 1, 2023.......................150,000,000 150,000,000
5-3/8% Series due July 1, 1998........................100,000,000 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
which bonds may hereinafter sometimes be called bonds of the First through
Sixty-eighth Series, respectively; and
WHEREAS, Section 8 of the Mortgage provides that the form of each series
of bonds (other than the First Series) issued thereunder and of the coupons to
be attached to coupon bonds of such series shall be established by Resolution of
the Board of Directors of the Company and that the form of such series, as
established by said Board of Directors, shall specify the descriptive title of
the bonds and various other terms thereof, and may also contain such provisions
not inconsistent with the provisions of the Mortgage as said Board of Directors
may, in its discretion, cause to be inserted therein expressing or referring to
the terms and conditions upon which such bonds are to be issued and/or secured
under the Mortgage; and
WHEREAS, Section 120 of the Mortgage provides, among other things, that
any power, privilege or right expressly or impliedly reserved to or in any way
conferred upon the Company by any provision of the Mortgage, whether such power,
privilege or right is in any way restricted or is unrestricted, may be in whole
or in part waived or surrendered or subjected to any restriction if at the time
unrestricted or to additional restriction if already restricted, and the Company
may enter into any further covenants, limitations or restrictions for the
benefit of any one or more series of bonds issued thereunder, or the Company may
cure any ambiguity contained therein, or in any supplemental indenture, or may
establish the terms and provisions of any series of bonds other than said First
Series, by an instrument in writing executed and acknowledged by the Company in
such manner as would be necessary to entitle a conveyance of real estate to
record in all of the states in which any property at the time subject to the
lien of the Mortgage shall be situated; and
WHEREAS, the Company now desires to create a new series of bonds and to
add to its covenants and agreements contained in the Mortgage, as heretofore
supplemented, certain other covenants and agreements to be observed by it and to
alter and amend in certain respects the covenants and provisions contained in
the Mortgage, as heretofore supplemented; and
WHEREAS, the execution and delivery by the Company of this Sixty-sixth
Supplemental Indenture, and the terms of the bonds of the Sixty-ninth Series,
hereinafter referred to, have been duly authorized by the Board of Directors of
the Company by appropriate resolutions of said Board of Directors;
6
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the undersigned W.T. Cunningham hereby gives written notice to the
Company that he hereby resigns as Individual Trustee under the Mortgage, such
resignation to take effect at the close of business on March 4, 1999, unless
previously a successor Individual Trustee shall have been appointed as provided
in the Mortgage, in which event such resignation shall take effect immediately
on the appointment of such successor Individual Trustee.
That, pursuant to Section 102 of the Mortgage, and by order of its Board
of Directors, the undersigned Carolina Power & Light Company hereby appoints
Douglas J. MacInnes as successor Individual Trustee under the Mortgage, subject
to the conditions in Article XVII thereof expressed, effective at the close of
business on March 4, 1999.
That the undersigned Douglas J. MacInnes, a citizen of the United States
of America, hereby accepts his said appointment by Carolina Power & Light
Company as successor Individual Trustee under the Mortgage.
That the undersigned W.T. Cunningham hereby acknowledges receipt of an
executed counterpart of this instrument.
That the undersigned Carolina Power & Light Company will proceed with
the publication of the notice of resignation and notice of appointment, as
provided respectively in Sections 101 and 102 of the Mortgage, in substantially
the forms provided in Exhibit A hereto annexed.
That the Company, in consideration of the premises and of One Dollar to
it duly paid by the Trustees at or before the ensealing and delivery of these
presents, the receipt whereof is hereby acknowledged, and in further evidence of
assurance of the estate, title and rights of the Trustees and in order further
to secure the payment of both the principal of and interest and premium, if any,
on the bonds from time to time issued under the Mortgage, according to their
tenor and effect and the performance of all the provisions of the Mortgage
(including any instruments supplemental thereto and any modification made as in
the Mortgage provided) and of said bonds, hereby grants, bargains, sells,
releases, conveys, assigns, transfers, mortgages, pledges, sets over and
confirms (subject, however, to Excepted Encumbrances as defined in Section 6 of
the Mortgage) unto The Bank of New York and W.T. Cunningham, who is hereby
resigning as Individual Trustee effective at the close of business on March 4,
1999, and to Douglas J. MacInnes (then successor Individual Trustee), 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-sixth 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,
7
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-sixth 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-sixth 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-sixth 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-sixth
Supplemental Indenture being supplemental to the Mortgage.
8
AND IT IS HEREBY COVENANTED by the Company that all the terms,
conditions, provisos, covenants and provisions contained in the Mortgage, as
heretofore supplemented, shall affect and apply to the property hereinbefore
described and conveyed and to the estate, rights, obligations and duties of the
Company and the Trustees and the beneficiaries of the trust with respect to said
property, and to the Trustees and their successors as Trustees of said property
in the same manner and with the same effect as if the said property had been
owned by the Company at the time of the execution of the Mortgage and had been
specifically and at length described in and conveyed to the Trustees by the
Mortgage as a part of the property therein stated to be conveyed.
The Company further covenants and agrees to and with the Trustees and
their successor or successors in such trust under the Mortgage as follows:
ARTICLE I
SIXTY-NINTH SERIES OF BONDS
SECTION 1. There shall be a series of bonds designated "5.95% Senior
Note Series due March 1, 2009" (herein sometimes referred to as the "Sixty-ninth
Series"), each of which shall also bear the descriptive title "First Mortgage
Bond", and the form thereof, which shall be established by Resolution of the
Board of Directors of the Company, shall contain suitable provisions with
respect to the matters hereinafter in this Section specified. Bonds of the
Sixty-ninth Series shall be initially issued in the aggregate principal amount
of $400,000,000, mature on March 1, 2009, bear interest at the rate of 5.95% per
annum, payable from March 5, 1999, if the date of said bonds is prior to
September 1, 1999, or, if the date of said bonds is after September 1, 1999,
from the March or September next preceding the date of said bonds, and
thereafter semi-annually on March 1 and September 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 Sixty-ninth
Series, upon surrender thereof for cancellation at the office or agency of the
Company in the Borough of Manhattan, The City of New York, shall be exchangeable
for a like aggregate principal amount of bonds of the same series of other
authorized denominations. The bonds of the Sixty-ninth Series may bear such
legends as may be necessary to comply with any law or with any rules or
regulations made pursuant thereto or with the rules or regulations of any stock
exchange or to conform to usage or agreement with respect thereto.
Bonds of the Sixty-ninth 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 the 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 Sixty-ninth 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 Sixty-ninth 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, 5.95% Series Due March 1, 2009 (hereinafter called the "Senior
Notes"), issued contemporaneously with the Bonds of the Sixty-sixth Series,
shall have been fully or partially paid (other
9
than by the application of the proceeds of a payment in respect of such Bonds of
the Sixty-ninth 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 such Bonds of the Sixty-ninth Series).
SECTION 2. Except as otherwise provided in this Section, the registered
owner of all bonds of the Sixty-ninth 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 such Bonds of the
Sixty-ninth Series), Bonds of the Sixty-ninth 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 such Bonds of
the Sixty-ninth Series shall be surrendered to and canceled by the Trustees,
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 Sixty-ninth Series shall be deemed fully paid, satisfied and
discharged and the obligation of the Company thereunder shall be terminated. On
the Release Date, the Bonds of the Sixty-ninth Series shall be surrendered to
and canceled by the Trustees.
The Bonds of the Sixty-ninth 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 First Supplemental Indenture, dated as of
March 1, 1999, supplemental to the Senior Note Indenture) plus 15 basis points
(.15%), 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 Sixty-ninth 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 Sixty-ninth 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 Sixty-ninth 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.
10
ARTICLE II
DIVIDEND COVENANT
SECTION 4. The Company covenants and agrees that, so long as any of the
bonds of the Sixty-ninth Series remain Outstanding, the Company will not declare
or pay any dividends upon its common stock (other than dividends in common
stock) or make any other distributions on its common stock or purchase or
otherwise retire any shares of its common stock, unless immediately after such
declaration, payment, purchase, retirement or distribution (hereinafter in this
Section referred to as "Restricted Payments"), and giving effect thereto, the
amount arrived at by adding
(a) the aggregate amount of all such Restricted Payments (other
than the dividend of fifty cents ($.50) per share declared on December
8, 1948 and paid on February 1, 1949 to holders of Common Stock) made by
the Company during the period from December 31, 1948, to and including
the effective date of the Restricted Payment in respect of which the
determination is being made, plus
(b) an amount equal to the aggregate amount of cumulative
dividends for such period (whether or not paid) on all preferred stock
of the Company from time to time outstanding during such period, at the
rate or rates borne by such preferred stock, plus
(c) an amount equal to the amount, if any, by which fifteen per
centum (15%) of the Gross Operating Revenues of the Company for such
period shall exceed the aggregate amount during such period expended
and/or accrued on its books for maintenance and/or appropriated on its
books out of income for property retirement, in each case in respect of
the Mortgaged and Pledged Property and/or automotive equipment used
primarily in the electric utility business of the Company (but excluding
any provisions for amortization of any amounts included in utility plant
acquisition adjustment accounts or utility plant adjustment accounts),
will not exceed the amount of the aggregate net income of the Company for said
period available for dividends (computed and ascertained in accordance with
sound accounting practice, on a cumulative basis, including the making of proper
deductions for any deficits occurring during any part of such period), plus
$3,000,000.
The Company further covenants and agrees that not later than May 1 of
each year beginning with the year 1999 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-sixth 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 $1,916,130,000 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.
11
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 6. Subject to the amendments provided for in this Sixty-sixth
Supplemental Indenture, the terms defined in the Mortgage, as heretofore
supplemented, shall, for all purposes of this Sixty-sixth 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-sixth
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-sixth 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-sixth Supplemental Indenture.
SECTION 8. Subject to the provisions of Article XV and Article XVI of
the Mortgage, whenever in this Sixty-sixth 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-sixth Supplemental Indenture contained by or on behalf of the Company
or by or on behalf of the Trustees shall bind and inure to the benefit of the
respective successors and assigns of such parties whether so expressed or not.
SECTION 9. Nothing in this Sixty-sixth 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-sixth Supplemental Indenture or any covenant, condition,
stipulation, promise or agreement hereof, and all the covenants, conditions,
stipulations, promises and agreements in this Sixty-sixth 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-sixth 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 W.T.
Cunningham (who is resigning as Individual Trustee effective at the close of
business on March 4, 1999) has hereunto set his hand and affixed his seal, and
Douglas J. MacInnes (who is appointed as successor Individual Trustee effective
at the close of business on March 4, 1999) 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. Mulhern
................................
Mark F. Mulhern, Vice President
and Treasurer
ATTEST:
..............................................
Patricia Kornegay-Timmons, Assistant Secretary
Executed, sealed and delivered by
CAROLINA POWER & LIGHT
COMPANY in the presence of:
/s/ Ann E. Fanning
.................................
Ann E. Fanning
/s/ Edie S. McCrea
.................................
Edie S. McCrea
13
TRUSTEES' SIGNATURE PAGE
SIXTY-SIXTH SUPPLEMENTAL INDENTURE, DATED AS OF MARCH 1, 1999,
TO MORTGAGE AND DEED OF TRUST, DATED AS OF MAY 1, 1940
THE BANK OF NEW YORK, AS TRUSTEE
By /s/ Mary Jane Schmalzel
. . . . . . . . . . . . . . . . . . . .
Mary Jane Schmalzel, Vice President
ATTEST:
/s/ Louis J. Hack
. . . . . . . . . . . . . . . . . . . . . . . . . . .
Louis J. Hack, Assistant Secretary
/s/ W.T. Cunningham
. . . . . . . . . . . . . . . . . (L.S.)
W.T. Cunningham
/s/ Douglas J. MacInnes
. . . . . . . . . . . . . . . . . (L.S.)
Douglas J. MacInnes
Executed, sealed and delivered
by THE BANK OF NEW YORK,
W. T. CUNNINGHAM and
DOUGLAS J. MACINNES
in the presence of:
/s/ Miriam Moraca
. . . . . . . . . . . . . . . . . . . . . . .
Miriam Moraca
/s/ Anthony M. Hitchman
. . . . . . . . . . . . . . . . . . . . . . .
Anthony M. Hitchman
14
STATE OF NORTH CAROLINA )
) SS.:
COUNTY OF WAKE )
This 4th day of March, A.D. 1999, personally came before me, SHERRY
WIMBERLY. WADDELL, a Notary Public for Harnett 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 4th day of March, in the year of 1999, 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/ SHERRY WIMBERLY WADDELL
. . . . . . . . . . . . . . . . . . . . . .
SHERRY WIMBERLY WADDELL
Notary Public, State of North Carolina
Harnett County
My Commission Expires: October 9, 1999
STATE OF NORTH CAROLINA )
) SS.:
COUNTY OF WAKE )
Personally appeared before me ANN E. FANNING, 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 EDIE S. MCCREA, witnessed the execution and delivery thereof as
the act and deed of said CAROLINA POWER & LIGHT COMPANY.
/s/ ANN E. FANNING
. . . . . . . . . . . . . . . . . . . . . .
ANN E. FANNING
Sworn to before me this
4th day of March, 1999
/s/ SHERRY WIMBERLY WADDELL
. . . . . . . . . . . . . . . . . . . . . . .
SHERRY WIMBERLY WADDELL
Notary Public, State of North Carolina
Harnett County
My Commission Expires: October 9, 1999
15
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
This 2nd day of March, A.D. 1999, personally came before me, WILLIAM J.
CASSELS, a Notary Public in and for the County aforesaid, MARY JANE SCHMALZEL,
who, being by me duly sworn, says that she 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 her in behalf of said corporation by its authority duly given. And the said
MARY JANE SCHMALZEL acknowledged the said writing to be the act and deed of said
corporation.
On the 2nd day of March, in the year 1999, before me personally came
MARY JANE SCHMALZEL, to me known, who, being by me duly sworn, did depose and
say that she resides in Shark River Hills, New Jersey; that she is a Vice
President of THE BANK OF NEW YORK, one of the corporations described in and
which executed the above instrument; that she knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation,
and that she signed her name thereto by like order.
I, WILLIAM J. CASSELS, a Notary Public in and for the County aforesaid,
do hereby certify that W.T. CUNNINGHAM personally appeared before me this day
and acknowledged the due execution by him as resigning Individual Trustee of the
foregoing instrument.
On the 2nd day of March, 1999, before me personally came W.T.
CUNNINGHAM, to me known to be the person described in and who executed the
foregoing instrument and acknowledged that he, as resigning Individual Trustee,
executed the same.
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 2nd day of March, 1999, 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 2nd day of March, 1999.
/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 MIRIAM MORACA, 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 MARY JANE SCHMALZEL, a Vice President,
with LOUIS J. HACK, an Assistant Secretary, of said THE BANK OF NEW YORK, sign
and attest the same, and that she, deponent, with ANTHONY M. HITCHMAN, witnessed
the execution and delivery thereof as the act and deed of said THE BANK OF NEW
YORK.
Personally appeared before me MIRIAM MORACA, who, being duly sworn, says
that she saw the within named W.T. CUNNINGHAM, as resigning Individual Trustee,
sign, seal and as his act and deed deliver the foregoing instrument for the
purposes therein mentioned, and that she, deponent, with ANTHONY M. HITCHMAN,
witnessed the execution thereof.
Personally appeared before me MIRIAM MORACA, 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 ANTHONY M.
HITCHMAN, witnessed the execution thereof.
/s/ MIRIAM MORACA
. . . . . . . . . . . . . . . . . . . .
MIRIAM MORACA
Sworn to before me this
2nd day of March, 1999
/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
(EXHIBIT A)
NOTICE OF RESIGNATION OF INDIVIDUAL TRUSTEE
NOTICE IS HEREBY GIVEN that the undersigned W. T. CUNNINGHAM has
resigned as successor Individual Trustee under the Mortgage and Deed of Trust,
dated as of May 1, 1940, as amended, of Carolina Power & Light Company to Irving
Trust Company (now The Bank of New York) and Frederick G. Herbst (Richard H.
West, J. A. Austin, E. J. McCabe, G. White, D. W. May, J. A. Vaughan, Joseph J.
Arney, Wafaa Orfey and W. T. Cunningham, successors), as Trustees, such
resignation having taken effect at the close of business on March 4, 1999.
Dated: March 5, 1999.
W. T. CUNNINGHAM
NOTICE OF APPOINTMENT OF SUCCESSOR
INDIVIDUAL TRUSTEE
NOTICE IS HEREBY GIVEN that the undersigned Carolina Power & Light
Company has received notice of and accepted the foregoing resignation of W. T.
Cunningham as Individual Trustee under its said Mortgage and Deed of Trust,
dated as of May 1, 1940, as amended, and that, as provided in said Mortgage and
Deed of Trust, the undersigned has appointed DOUGLAS J. MACINNES as successor
Individual Trustee thereunder, effective at the close of business on March 4,
1999.
Dated: March 5, 1999.
CAROLINA POWER & LIGHT COMPANY