FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
Current Report
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) January 19, 1994
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CAROLINA POWER & LIGHT COMPANY
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(exact name of registrant as specified in its charter)
North Carolina 1-3382 56-0165465
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
411 Fayetteville Street, Raleigh, North Carolina 27601
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(Address of principal executive offices)
Registrant's telephone number, including area code (919) 546-6111
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
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(a) No financial statements are filed herewith.
(b) No pro forma financial information is filed herewith.
(c) Exhibits
-Underwriting Agreement dated as of January 12, 1994.
-Sixty-second Supplemental Indenture dated as of January 15, 1994.
-Computation of Ratio of Earnings to Fixed Charges.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CAROLINA POWER & LIGHT COMPANY
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Registrant
By: /s/ Charles D. Barham, Jr.
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Charles D. Barham, Jr.
Executive Vice President
Date: January 19, 1994
Exhibit 1
CAROLINA POWER & LIGHT COMPANY
First Mortgage Bonds
UNDERWRITING AGREEMENT
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January 12, 1994
To the Representative named in Schedule I hereto
of the Underwriters named in Schedule II hereto
Dear Sirs:
The undersigned Carolina Power & Light Company (the "Company") hereby
confirms its agreement with each of the several Underwriters hereinafter
named as follows:
1. Underwriters and Representative. The term "Underwriters" as used
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herein shall be deemed to mean the firm or corporation or the several firms
or corporations named in Schedule II hereto and any underwriter substituted
as provided in paragraph 6 and the term "Underwriter" shall be deemed to
mean one of such Underwriters. If the firm or firms listed in Schedule I
hereto (the "Representative") are the same as the firm or firms listed in
Schedule II hereto, then the terms "Underwriters" and "Representative", as
used herein, shall each be deemed to refer to such firm or firms. The
Representative represents that it has been authorized by the Underwriters
to execute this Agreement on their behalf and to act for them in the manner
herein provided. All obligations of the Underwriters hereunder are several
and not joint. If more than one firm is named in Schedule I hereto, any
action under or in respect of this Agreement may be taken by such firms
jointly as the Representative or by one of the firms acting on behalf of
the Representative and such action will be binding upon all the
Underwriters.
2. Description of Securities. The Company proposes to issue and
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sell its First Mortgage Bonds of the designation, with the terms and in the
amount specified in Schedule I hereto (the "Securities"), under its
Mortgage and Deed of Trust, dated as of May 1, 1940, with The Bank of New
York (formerly Irving Trust Company) and Frederick G. Herbst (W. T.
Cunningham, successor), as Trustees, as supplemented and as it will be
further supplemented by a Supplemental Indenture relating to the Securities
(the "Supplemental Indenture"), in substantially the form heretofore
delivered to the Representative, said Mortgage and Deed of Trust as
supplemented and to be supplemented by the Supplemental Indenture being
hereinafter referred to as the "Mortgage".
3. Representations and Warranties of the Company. The Company
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represents and warrants to each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3
(No. 33-50597), including a combined prospectus ("registration
statement No. 33-50597"), for the registration of the Securities under
the Securities Act of 1933, as amended (the "Securities Act"), and the
qualification of the Mortgage under the Trust Indenture Act of 1939,
as amended (the "1939 Act"). Registration statement No. 33-50597 has
been declared effective by the Commission and the Mortgage has been
qualified under the 1939 Act. The Company has also filed with the
Commission a registration statement on Form S-3 (No.33-60014)
("registration statement No. 33-60014"), which was declared effective
by the Commission on March 31, 1993, for the registration of
$400,000,000 principal amount of First Mortgage Bonds, of which an
aggregate of $300,000,000 principal amount has been previously issued.
Registration statement No. 33-50597, as amended to the date hereof,
together with the registration statement No. 33-60014 as amended to
the date hereof, including, in each case, the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act (the "Incorporated Documents"), is hereinafter
collectively referred to as the "Registration Statement". The
combined prospectus forming a part of the registration statement No.
33-50597, as it is to be supplemented by a prospectus supplement,
dated on or about the date hereof, relating to the Securities, and all
prior amendments or supplements thereto (other than amendments or
supplements relating to First Mortgage Bonds other than the
Securities), including the Incorporated Documents, is hereinafter
referred to as the "Prospectus". Any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement or the Prospectus shall be deemed to refer to and include
the filing of any document under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), deemed to be incorporated therein
after the date hereof and prior to the termination of the offering of
the Securities by the Underwriters and any references herein to the
terms Registration Statement" or "Prospectus" at a date after the date
hereof shall be deemed to refer to the Registration Statement or the
Prospectus, as the case may be, as each may be amended or supplemented
to such date.
(b) Prior to the termination of the offering of the Securities,
the Company will not file any amendment to the Registration Statement
or supplement to the Prospectus which shall not have previously been
furnished to the Representative or of which the Representative shall
not previously have been advised or to which the Representative shall
reasonably object in writing and which has not been approved by
Winthrop, Stimson, Putnam & Roberts, who are acting as counsel on
behalf of the Underwriters.
(c) The Registration Statement, at the time and date it was
declared effective by the Commission, complied and the Registration
Statement, the Prospectus and the Mortgage, at the date the Prospectus
is filed with, or transmitted for filing to, the Commission pursuant
to Rule 424 under the Securities Act ("Rule 424") and at the Closing
Date, will comply in all material respects, with the applicable
provisions of the Securities Act and the 1939 Act and the applicable
rules and regulations of the Commission thereunder; the Registration
Statement, at the time and date it was declared effective by the
Commission, did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and the
Prospectus, at the date it is filed with, or transmitted for filing
to, the Commission pursuant to Rule 424 and at the Closing Date, did
not and will not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the foregoing
representations and warranties in this subparagraph (c) shall not
apply to statements or omissions made in reliance upon and in
conformity with information furnished herein or in writing to the
Company by the Representative or by or on behalf of any Underwriter
through the Representative expressly for use in the Registration
Statement or the Prospectus or to any statements in or omissions from
the Statements of Eligibility (Forms T-1 and T-2) of the Trustees
under the Mortgage. The Incorporated Documents, when they were filed
with the Commission, complied in all material respects with the
applicable requirements of the Exchange Act and the rules and
regulations of the Commission thereunder, and any documents so filed
and incorporated by reference subsequent to the date hereof and prior
to the termination of the offering of the Securities by the
Underwriters will, when they are filed with the Commission, comply in
all material respects with the requirements of the Exchange Act and
the rules and regulations of the Commission thereunder; and, when read
together with the Registration Statement and the Prospectus, none of
such documents included or includes or will include any untrue
statement of a material fact or omitted or omits or will omit to state
any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
(d) The financial statements incorporated by reference in the
Registration Statement present fairly the financial condition and
operations of the Company at the respective dates or for the
respective periods to which they apply; such financial statements have
been prepared in each case in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved; and Deloitte & Touche, who have audited certain of the
financial statements, are independent public or independent certified
public accountants as required by the Securities Act or the Exchange
Act and the rules and regulations of the Commission thereunder.
(e) Except as reflected in, or contemplated by, the Registration
Statement and the Prospectus, since the respective dates as of which
information is given in the Registration Statement and Prospectus, and
prior to the Closing Date, there has not been any material adverse
change in the business, property or financial condition of the Company
and since such dates and prior to the Closing Date, there has not been
any material transaction entered into by the Company other than
transactions contemplated by the Registration Statement and Prospectus
and transactions in the ordinary course of business. The Company has
no material contingent obligation which is not disclosed in the
Registration Statement and Prospectus.
(f) The consummation of the transactions herein contemplated and
the fulfillment of the terms hereof on the part of the Company to be
fulfilled have been duly authorized by all necessary corporate action
of the Company in accordance with the provisions of its charter (the
"Charter"), by-laws and applicable law, and the Securities, when
issued and delivered as provided herein, will constitute legal, valid
and binding obligations of the Company in accordance with their terms
except as limited by bankruptcy, insolvency or other laws affecting
mortgagees' and other creditors' rights and general equitable
principles.
(g) The consummation of the transaction herein contemplated and
the fulfillment of the terms hereof will not result in a breach of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or other agreement or instrument to
which the Company is now a party.
(h) The summary of the terms of the Securities contained in the
Registration Statement and Prospectus fairly describes the provisions
thereof required to be described by the registration statement form.
4. Purchase and Sale. On the basis of the representations,
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warranties and covenants herein contained, but subject to the terms and
conditions herein set forth, the Company agrees to sell to each of the
Underwriters, severally and not jointly, and each such Underwriter agrees,
severally and not jointly, to purchase from the Company, the respective
principal amount of Securities set forth opposite the name of such
Underwriter in Schedule II hereto at the purchase price set forth in
Schedule I hereto.
5. Reoffering by Underwriters. The Underwriters agree to
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make promptly a bona fide public offering of the Securities to the public
for sale as set forth in the Prospectus, subject, however, to the terms and
conditions of this Agreement.
6. Time and Place of Closing; Default of Underwriters.
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(a) Payment for the Securities shall be made at the place, time
and date specified in Schedule I hereto against delivery of the
Securities at the office of The Bank of New York, Corporate Trust
Department, 101 Barclay Street, New York, New York, or such other
place, time and date as the Representative and the Company may agree.
The hour and date of such delivery and payment are herein called the
"Closing Date". Payment for the Securities shall be by certified or
official bank check or checks in New York Clearing House or similar
next day funds against delivery to the Representative for the
respective accounts of the Underwriters of certificates for the
Securities to be purchased by them. Certificates for the Securities
shall be delivered to the Representative for the respective accounts
of the Underwriters in such names and denominations as the
Representative shall specify not later than the close of business on
the third full business day before the Closing Date. For the purpose
of expediting the checking of the certificates by the Representative,
the Company agrees to make the Securities available to the
Representative not later than 10 A.M., on the last full business day
prior to the Closing Date at said office of The Bank of New York.
(b) If one or more of the Underwriters shall, for any reason
permitted hereunder, cancel its obligation to purchase hereunder and
to take up and pay for the principal amount of the Securities to be
purchased by such one or more Underwriters, the Company shall
immediately notify the Representative, and the remaining Underwriters
shall have the right, within 24 hours of receipt of such notice,
either to take up and pay for (in such proportion as may be agreed
upon among them) or to substitute another Underwriter or Underwriters,
satisfactory to the Company, to take up and pay for the principal
amount of the Securities which such one or more Underwriters did not
purchase. If one or more Underwriters shall, for any reason other
than a reason permitted hereunder, fail to take up and pay for the
principal amount of the Securities to be purchased my such one or more
Underwriters, the Company shall immediately notify the Representative,
and the remaining Underwriters shall be obligated to take up and pay
for (in addition to the respective principal amount of the Securities
set forth opposite their respective names in Schedule II hereto), the
principal amount of the Securities which such defaulting Underwriter
or Underwriters failed to take up and pay for, up to a principal
amount thereof equal to, in the case of each such remaining
Underwriter, ten percent (10%) of the principal amount of the
Securities set forth opposite the name of such remaining Underwriter
in said Schedule II, and such remaining Underwriters shall have the
right, within 24 hours of receipt of such notice, either to take up
and pay for (in such proportion as may be agreed upon among them), or
to substitute another Underwriter or Underwriters, satisfactory to the
Company, to take up and pay for, the remaining principal amount of the
Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase. If any unpurchased Securities still remain, then
the Company or the Representative shall be entitled to an additional
period of 24 hours within which to procure another party or parties,
members of the National Association of Securities Dealers, Inc. (or if
not members of such Association, who are not eligible for membership
in said Association and who agree (i) to make no sales within the
United States, its territories or its possessions or to persons who
are citizens thereof or residents therein and (ii) in making sales to
comply with said Association's Rules of Fair Practice) and
satisfactory to the Company, to purchase or agree to purchase such
unpurchased Securities on the terms herein set forth. In any such
case either the Representative or the Company shall have the right to
postpone the Closing Date for a period not to exceed three full
business days from the date agreed upon in accordance with this
paragraph 6, in order that the necessary changes in the Registration
Statement and Prospectus and any other documents and arrangements may
be effected. If the Representative and the Company shall fail to
procure a satisfactory party or parties as above provided to purchase
or agree to purchase such unpurchased Securities, then the Company may
either (i) require the remaining Underwriters to purchase the
principal amount of Securities which they are obligated to purchase
hereunder or (ii) terminate this Agreement by giving prompt notice to
the Representative. In the event that neither the non-defaulting
Underwriters nor the Company has arranged for the purchase of such
unpurchased Securities by another party or parties as above provided
and the Company has not elected to require the non-defaulting
Underwriters to purchase the principal amount of Securities which they
are obligated to purchase hereunder, then this Agreement shall
terminate without any liability on the part of the Company or any
Underwriter (other than an Underwriter which shall have failed or
refused, in accordance with the terms hereof, to purchase and pay for
the principal amount of the Securities which such Underwriter has
agreed to purchase as provided in paragraph 4 hereof), except as
otherwise provided in paragraph 7 and paragraph 8 hereof.
7. Covenants of the Company. The Company covenants with
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each Underwriter that:
(a) As soon as possible after the execution and delivery of
this Agreement, the Company will file the Prospectus with the
Commission pursuant to Rule 424, setting forth, among other things,
the necessary information with respect to the terms of offering of the
Securities. The Company will promptly deliver to the Representative
and to counsel for the Underwriters one fully executed copy or one
conformed copy, certified by an officer of the Company, of
registration statement No. 33-50597 and one fully executed copy or one
conformed copy certified by an officer of the Company, of registration
statement No. 33-60014, each as originally filed and of all amendments
thereto, heretofore or hereafter made, which relate to the Securities,
including any post-effective amendment (in each case including all
exhibits filed therewith and all documents incorporated therein not
previously furnished to the Representative), including signed copies
of each consent and certificate included therein or filed as an
exhibit thereto, and will deliver to the Representative for
distribution to the Underwriters as many conformed copies of the
foregoing (excluding the exhibits, but including all documents
incorporated therein) as the Representative may reasonably request.
The Company will also send to the Underwriters as soon as practicable
after the date of this Agreement and thereafter from time to time as
many copies of the Prospectus as the Representative may reasonably
request for the purposes required by the Securities Act.
(b) During such period (not exceeding nine months) after the
commencement of the offering of the Securities as the Underwriters may
be required by law to deliver a Prospectus, if any event relating to
or affecting the Company, or of which the Company shall be advised in
writing by the Representative shall occur, which in the Company's
opinion should be set forth in a supplement to or an amendment of the
Prospectus in order to make the Prospectus not misleading in the light
of the circumstances when it is delivered to a purchaser, or if it is
necessary to amend the Prospectus to comply with the Securities Act,
the Company will forthwith at its expense prepare and furnish to the
Underwriters and dealers named by the Representative a reasonable
number of copies of a supplement or supplements or an amendment or
amendments to the Prospectus which will supplement or amend the
Prospectus so that as supplemented or amended it will comply with the
Securities Act and will not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading. In case any
Underwriter is required to deliver a Prospectus after the expiration
of nine months after the commencement of the offering of the
Securities, the Company, upon the request of the Representative, will
furnish to the Representative, at the expense of such Underwriter, a
reasonable quantity of a supplemented or amended prospectus, or
supplements or amendments to the Prospectus, complying with Section
10(a) of the Securities Act.
(c) The Company will make generally available to its security
holders, as soon as reasonably practicable, but in any event not later
than 16 months after the end of the fiscal quarter in which the filing
of the Prospectus pursuant to Rule 424 occurs, an earnings statement
(in form complying with the provisions of Section 11(a) of the
Securities Act, which need not be certified by independent public
accountants) covering a period of twelve months beginning not later
than the first day of the Company's fiscal quarter next following the
filing of the Prospectus pursuant to Rule 424.
(d) The Company will use its best efforts promptly to do and
perform all things to be done and performed by it hereunder prior to
the Closing Date and to satisfy all conditions precedent to the
delivery by it of the Securities.
(e) The Company will advise the Representative promptly of the
filing of the Prospectus pursuant to Rule 424 and of any amendment or
supplement to the Prospectus or Registration Statement or of official
notice of institution of proceedings for, or the entry of, a stop
order suspending the effectiveness of the Registration Statement and,
if such a stop order should be entered, use its best efforts to obtain
the prompt removal thereof.
(f) The Company will use its best efforts to qualify the
Securities, for offer and sale under the Blue Sky or legal investment
laws of such jurisdictions as the Representative may designate, and
will file and make in each year such statements or reports as are or
may be reasonably required by the laws of such jurisdictions;
provided, however, that the Company shall not be required to qualify
as a foreign corporation or dealer in securities, or to file any
general consents to service of process under the laws of any
jurisdiction. The fees and disbursements of Winthrop, Stimson, Putnam
& Roberts, who are acting as counsel on behalf of the Underwriters for
the purposes of this Agreement, shall be paid by the Underwriters
(subject, however, to the provisions of paragraph 8 requiring payment
by the Company of fees and expenses not to exceed $5,000); provided,
however, that if this Agreement is terminated in accordance with the
provisions of paragraph 9, 10 or 12, the Company shall reimburse the
Representative for the account of the Underwriters for the amount of
such counsel fees and disbursements. The Company shall not be
required to pay any amount for any expenses of the Representative or
of any other of the Underwriters except as provided in this paragraph
7 and in paragraph 8. The Company shall not in any event be liable to
any of the Underwriters for damages on account of the loss of
anticipated profit.
8. Payment of Expenses. The Company will pay all expenses
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incident to the performance of its obligations under this Agreement,
including (i) the printing and filing of the Registration Statement and the
printing of this Agreement, (ii) the delivery of the Securities to the
Underwriters, (iii) the fees and disbursements of the Company's counsel and
accountants, (iv) the expenses in connection with the qualification of the
Securities under securities laws in accordance with the provisions of
paragraph 7(f), including filing fees and the fees and disbursements of
counsel for the Underwriters in connection therewith, and in connection
with the preparation of the Blue Sky Survey and Legality Memorandum, such
fees and disbursements not to exceed $5,000, (v) the printing and delivery
to the Underwriters of copies of the Registration Statement and all
amendments thereto, of the preliminary prospectuses, and of the Prospectus
and any amendments or supplements thereto, (vi) the printing and delivery
to the Underwriters of copies of the Blue Sky Survey and Legality
Memorandum, and (vii) the preparation, execution, filing and recording by
the Company of the Supplemental Indenture relating to the Securities (such
filing and recordation to be promptly made, after execution and delivery of
the Supplemental Indenture to the Trustees, in the counties in which the
mortgaged property of the Company is located); and the Company will pay all
taxes, if any (but not including any transfer taxes), on the issue of the
Securities and the filing and recordation of the Supplemental Indenture.
9. Conditions of Underwriters' Obligations. The several obligations
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of the Underwriters to purchase and pay for the Securities shall be subject
to the accuracy of the representations and warranties on the part of the
Company, to the performance by the Company of its obligations to be
performed hereunder prior to the Closing Date, and to the following further
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date and no
proceedings for that purpose shall be pending before, or threatened
by, the Commission on the Closing Date, and the Representative shall
have received, prior to payment for the Securities, a certificate
dated the Closing Date and signed by the Chairman, President or a Vice
President of the Company to the effect that no such stop order is in
effect and that no proceedings for such purpose are pending before or,
to the knowledge of the Company, threatened by the Commission.
(b) Prior to 12 Noon, New York Time, on the day following the
date of this Agreement, or such later date as shall have been
consented to by the Representative, there shall have been issued and
on the Closing Date there shall be in full force and effect orders of
the North Carolina Utilities Commission and the South Carolina Public
Service Commission authorizing the issuance and sale of the
Securities, none of which shall contain any provision unacceptable to
the Representative by reason of its being materially adverse to the
Company (it bring understood that no such order in effect on the date
of this Agreement and heretofore furnished to the Representative or to
Winthrop, Stimson, Putnam & Roberts, Counsel for the Underwriters,
contains any such unacceptable provision).
(c) At the Closing Date, the Representative shall receive
favorable opinions from: (1) Reid & Priest, of counsel to the Company,
which opinion shall be satisfactory in form and substance to Winthrop,
Stimson, Putnam & Roberts, Counsel for the Underwriters, and (2)
Winthrop, Stimson, Putnam & Roberts, in each of which opinions said
counsel may rely as to all matters of North Carolina and South
Carolina law upon the opinions of Richard E. Jones, Esq., Senior Vice
President, General Counsel and Secretary for the Company, and Messrs.
Paulling & James, respectively, to the effect that:
(i) The Mortgage has been duly and validly authorized
by all necessary corporate action, has been duly and validly
executed and delivered, and is a valid and binding mortgage of
the Company enforceable in accordance with its terms, except as
limited by bankruptcy, insolvency or other laws affecting
mortgagees' and other creditors' rights and general equitable
principles;
(ii) The Mortgage has been duly qualified under the
1939 Act;
(iii) The Securities are legal, valid and binding
obligations of the Company enforceable in accordance with their
terms, except as limited by bankruptcy, insolvency or other laws
affecting mortgagees' and other creditors' rights and general
equitable principles, are entitled to the benefit of the security
afforded by the Mortgage, and are secured equally and ratably
with all other bonds outstanding under the Mortgage except
insofar as any sinking or other fund may afford additional
security for the bonds of any particular series;
(iv) The statements made in the Prospectus under the
captions "Description of the New Bonds" and "Certain Terms of the
Offered Bonds", insofar as they purport to constitute summaries
of the documents referred to therein, constitute accurate
summaries of the terms of such documents in all material
respects.
(v) This Agreement has been duly and validly
authorized, executed and delivered by the Company;
(vi) The Registration Statement, at the time and date
it was declared effective by the Commission, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 (except as to the financial
statements and other financial and statistical data constituting
a part thereof or incorporated by reference therein, upon which
such opinions need not pass), complied as to form in all material
respects with the requirements of the Securities Act and the 1939
Act and the applicable instructions, rules and regulations of the
Commission thereunder; the documents or portions thereof filed
with the Commission pursuant to the Exchange Act and deemed to be
incorporated by reference in the Registration Statement and the
Prospectus pursuant to Item 12 of Form S-3 (except as to
financial statements and other financial and statistical data
constituting a part thereof or incorporated by reference therein,
upon which such opinions need not pass), at the time they were
filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act and the
applicable instructions, rules and regulations of the Commission
thereunder; the Registration Statement has become, and at the
Closing Date is, effective under the Securities Act and, to the
best of the knowledge of said counsel, no proceedings for a stop
order with respect thereto are threatened or pending under
Section 8 of the Securities Act;
(vii) Nothing has come to the attention of said
counsel that would lead them to believe that the Registration
Statement, at the time and date it was declared effective by the
Commission, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that
the Prospectus, at the time it was filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 or at the Closing
Date, included or includes an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading (except as to
financial statements and other financial and statistical data
constituting a part of the Registration Statement or the
Prospectus or incorporated by reference therein, upon which such
opinions need not pass);
(viii) Orders have been entered by the North Carolina
Utilities Commission and the South Carolina Public Service
Commission authorizing the issuance and sale of the Securities,
and to the best of the knowledge of said counsel, said orders are
still in force and effect; and no further approval,
authorization, consent or other order of any public board or body
(other than in connection or in compliance with the provisions of
the blue sky laws of any jurisdiction) is legally required for
the issuance and sale of the Securities.
(d) At the Closing Date, the Representative shall receive from
Richard E. Jones, Esq., Senior Vice President, General Counsel and
Secretary for the Company, a favorable opinion in form and substance
satisfactory to Winthrop, Stimson, Putnam & Roberts, Counsel for the
Underwriters, to the same effect with respect to the matters
enumerated in subdivisions (i) through (v) and subdivisions (vii) and
(viii) of subparagraph (c) of this paragraph 9 as the opinions
required by said subparagraph (c), and to the further effect that:
(i) The Company is a validly organized and existing
corporation and is in good standing under the laws of the State
of North Carolina and is qualified to do business and is doing
business in that State and in the State of South Carolina;
(ii) The Company is duly authorized by its Charter to
conduct the business which it is now conducting as set forth in
the Prospectus;
(iii) The Company has valid franchises, licenses and permits
free from burdensome restrictions and adequate for the conduct of
its business;
(iv) The information contained in the Prospectus, which is
stated therein to have been made in reliance upon the opinion of
said counsel, has been reviewed by said counsel and is correct;
(v) The Company has good and marketable title, with minor
exceptions, restrictions and reservations in conveyances, and
defects, which are of the nature ordinarily found in properties
of similar character and magnitude, and which, in his opinion,
cannot in any substantial way impair the security afforded by the
Mortgage, to all the properties described in the granting clauses
of the Mortgage and upon which the Mortgage purports to create a
lien, except certain rights-of-way over private property on which
are located transmission and distribution lines formerly owned by
the Tide Water Power Company (merged into the Company on February
29, 1952), title to which can be perfected by condemnation
proceedings. The description in the Mortgage of the
above-mentioned properties (including those formerly owned by
Tide Water Power Company) is legally sufficient to constitute the
Mortgage a lien thereon. Said properties constitute
substantially all the permanent physical properties and
franchises of the Company and are held by the Company free and
clear of all liens and encumbrances except the lien of the
Mortgage and Excepted Encumbrances, as defined in the Mortgage.
The Company has followed the practice generally of purchasing
rights-of-way and easements and certain small parcels of fee
property appurtenant thereto and for use in conjunction
therewith, and certain other properties of small or
inconsequential value, without an examination of title and, as to
the title to lands affected by rights-of-way and easements, of
not examining the title of the lessor or grantor whenever the
lands affected by such rights-of-way and easements are not of
such substantial value as in the opinion of the Company to
justify the expense attendant upon examination of titles in
connection therewith. In his opinion such practice of the
Company is consistent with good practice and with the method
followed by other companies engaged in the same business and is
reasonably adequate to assure the Company of good and marketable
title to all such property acquired by it. It is his opinion
that any such conditions or defects as may be covered by the
above recited exceptions are not, except as to certain
rights-of-way on which are located transmission lines acquired
from Tide Water Power Company, substantial and would not
interfere with the Company's business operations. The Company
has the right of eminent domain in the States of North Carolina
and South Carolina under which it may, if necessary, perfect or
obtain title to privately owned land or acquire easements or
rights-of-way required for use or used by the Company in its
public utility operations;
(vi) The Company's Mortgage and Deed of Trust dated
as of May 1, 1940 and the First through the Sixty-first
Supplemental Indentures thereto have been filed for record both
as a real estate mortgage and as a chattel mortgage or security
interest in all counties in the states of North Carolina and
South Carolina in which any of the property described in the
Mortgage as subject thereunder to the lien thereof is located;
and the Supplemental Indenture relating to the Securities is in
proper form for filing for record both as a real estate mortgage
and as a security interest in all counties in the States of North
Carolina and South Carolina in which any of the property
described therein or in the Mortgage as subject to the lien of
the Mortgage is located;
(vii) The Mortgage constitutes a valid first mortgage
lien of record upon all the franchises and properties now owned
by the Company (other than those expressly excepted therefrom)
situated in the States of North Carolina and South Carolina, as
described or referred to in the granting clauses of the Mortgage,
subject to the exceptions as to bankruptcy, insolvency and other
laws stated in subdivision (i) of subparagraph (c) above;
(viii) The issuance and sale of the Securities have
been duly authorized by all necessary corporate action the part
of the Company.
In said opinion such counsel may rely as to all matters of South
Carolina law on the opinion of Messrs. Paulling & James.
(e) At the Closing Date, the Representative shall receive from
Messrs. Paulling & James, Darlington, South Carolina, a favorable
opinion in form and substance satisfactory to Winthrop, Stimson,
Putnam & Roberts, Counsel for the Underwriters, to the effect that:
(i) The Company is duly qualified to engage in the business
in which it is engaged in the State of South Carolina;
(ii) The Company has good and sufficient title to all the
properties in South Carolina now owned by it and described in and
as subject to the lien of the Mortgage (except possibly certain
transmission line rights-of-way, titles to which may be subject
to defects and irregularities which can be cured, if necessary,
under the eminent domain laws of South Carolina), subject only to
Excepted Encumbrances, as defined in the Mortgage, and to minor
defects and irregularities customarily found in properties of
like size and character and which, in their opinion, do not
materially impair the use of the property affected thereby in the
operation of the business of the Company; the description of said
properties set forth in the Mortgage is adequate to constitute
the Mortgage a lien thereon; the Mortgage constitutes a valid,
direct first mortgage lien upon said properties, which include
substantially all the permanent physical properties and
franchises of the Company in South Carolina (other than those
expressly excepted), subject only to the exceptions enumerated
above;
(iii) The Company holds valid and subsisting franchises,
licenses and permits in South Carolina authorizing it to carry on
the utility business in which it is engaged in South Carolina;
and
(iv) They have reviewed the opinion letter of even date
therewith addressed to you by Richard E. Jones, Esq., Senior Vice
President, General Counsel and Secretary for the Company, and
they concur in the opinions which he has expressed therein
insofar as they relate to the laws of the State of South
Carolina.
(f) At the time of execution of this Agreement and at the
Closing Date, the Representative shall have received from Deloitte &
Touche letters, dated respectively the date of this Agreement and the
Closing Date, confirming that they are independent certified public
accountants within the meaning of the Securities Act and the Exchange
Act, and of the applicable published rules and regulations thereunder,
and stating in effect that: (i) in their opinion, the audited
financial statements incorporated by reference in the Registration
Statement comply as to form in all material respects with the
applicable accounting requirements of the Securities Act or the
Exchange Act, as applicable, and of the published rules and
regulations thereunder; (ii) based on the performance of the
procedures specified by the American Institute of Certified Public
Accountants for review of interim financial information as described
in Statement on Auditing Standards "SAS" No. 71, Interim Financial
Information, on the unaudited financial statements, included in the
Company's quarterly reports on Form 10-Q for the quarters ended March
31, 1993, June 30, 1993 and September 30, 1993 incorporated by
reference in the Registration Statement, inquiries of officials of the
Company responsible for financial and accounting matters and reading
the minutes of meetings of the Board of Directors, of the Executive
Committee of the Board of Directors and of the shareholders, nothing
came to their attention that caused them to believe that (A) the
unaudited financial statements incorporated by reference in the
Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the Securities
Act or the Exchange Act, as applicable, and the published rules and
regulations thereunder or any material modifications should be made
for them to be in conformity with generally accepted principles
applied on a basis substantially consistent with that of the most
recent audited financial statements incorporated by reference in the
Registration Statement; or (B) at the date of the latest available
interim balance sheet read by them and at a subsequent date not more
than five days prior to the date of each such letter, there was any
change in the capital stock or long-term debt of the Company, or at
the date of the latest available interim balance sheet read by them,
there was any decrease in net assets as compared with the amount shown
on the most recent balance sheet incorporated by reference in the
Registration Statement, except for changes or decreases that the
Registration Statement discloses have occurred or may occur, for
declarations of dividends, for common stock sales under the Automatic
Dividend Reinvestment and Customer Stock Ownership Plan and Stock
Purchase-Savings Plan, or for changes or decreases that are described
in such letter; and (iii) covering such other matters as the
Representative shall reasonably request.
(g) At the Closing Date, the Representative shall receive a
certificate of the Chairman, President or a Vice President of the
Company, dated the Closing Date, to the effect that the
representations and warranties of the Company in this Agreement are
true and correct as of the Closing Date.
(h) All legal proceedings taken in connection with the sale and
delivery of the Securities shall have been satisfactory in form and
substance to Winthrop, Stimson, Putnam & Roberts, Counsel for the
Underwriters.
In case any of the conditions specified above in this paragraph 9
shall not have been fulfilled at the Closing Date, this Agreement may be
terminated by the Representative by mailing or delivering written notice
thereof to the Company. Any such termination shall be without liability of
any party to any other party except as otherwise provided in paragraphs 7
and 8.
10. Conditions of the Company's Obligations. The obligations of the
---------------------------------------
Company to deliver the Securities shall be subject to the following
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date, and no
proceedings for that purpose shall be pending before or threatened by
the Commission on the Closing Date.
(b) Prior to 12 Noon, New York Time, on the day following the
date of this Agreement, or such later date as shall have been
consented to by the Company, there shall have been issued and on the
Closing Date there shall be in full force and effect orders of the
North Carolina Utilities Commission and the South Carolina Public
Service Commission authorizing the issuance and sale by the Company of
the Securities, none of which shall contain any provision unacceptable
to the Company by reason of its being materially adverse to the
Company (it being understood that no such order in effect as of the
date of this Agreement contains any such unacceptable provision).
In case any of the conditions specified in this paragraph 10 shall not
have been fulfilled at the Closing Date, this Agreement may be terminated
by the Company by mailing or delivering written notice thereof to the
Representative. Any such termination shall be without liability of any
party to any other party except as otherwise provided in paragraphs 7 and
8.
11. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the
meaning of Section 15 of the Securities Act against any and all
losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act or
under any other statute or common law and to reimburse each such
Underwriter and controlling person for any legal or other expenses
(including to the extent hereinafter provided, reasonable counsel
fees) incurred by them in connection with investigating any such
losses, claims, damages or liabilities or in connection with defending
any actions, insofar as such losses, claims, damages, liabilities,
expenses or actions arise out of or are based upon any untrue
statement, or alleged untrue statement, of a material fact contained
in the Registration Statement, any preliminary prospectus or the
Prospectus, or in the Registration Statement or Prospectus as amended
or supplemented (if any amendments or supplements thereto shall have
been furnished), or the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the
indemnity agreement contained in this paragraph 11 shall not apply to
any such losses, claims, damages, liabilities, expenses or actions
arising out of, or based upon any such untrue statement or alleged
untrue statement, or any such omission or alleged omission, if such
statement or omission was made in reliance upon information furnished
herein or in writing to the Company by any Underwriter or through the
Representative on behalf of such Underwriter for use in the
Registration Statement or Prospectus, or any amendment or supplement
to either thereof, or arising out of, or based upon, statements in or
omissions from that part of the Registration Statement which shall
constitute the Statements of Eligibility under the 1939 Act (Forms T-1
and T-2) of the Trustees under the Mortgage, and provided, further,
that the indemnity agreement contained in this paragraph 11 shall not
inure to the benefit of any Underwriter (or of any person controlling
such Underwriter) on account of any such losses, claims, damages,
liabilities, expenses or actions arising from the sale of the
Securities to any person if a copy of the Prospectus (excluding
documents incorporated by reference therein) shall not have been given
or sent to such person by or on behalf of such Underwriter with or
prior to the written confirmation of the sale involved. The indemnity
agreement of the Company contained in this paragraph 11 and the
representations and warranties of the Company contained in paragraph 3
hereof shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of any Underwriter or any
such controlling person and shall survive the delivery of the
Securities. The Underwriters agree to notify promptly the Company,
and each other Underwriter, of the commencement of any litigation or
proceedings against them or any of them, or any such controlling
person, in connection with the sale of the Securities.
(b) Each Underwriter agrees to indemnify and hold harmless the
Company, its officers and directors, each other Underwriter, and each
person who controls any thereof within the meaning of Section 15 of
the Securities Act, against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Securities Act or under any other statute or common
law, and to reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable counsel
fees) incurred by them in connection with investigating any such
losses, claims, damages, or liabilities, or in connection with
defending any actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or Prospectus as amended or
supplemented (if any amendments or supplements thereto shall have been
furnished), or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, if such statement or omission was
made in reliance upon information furnished herein or in writing to
the Company by such Underwriter or through the Representative on
behalf of such Underwriter for use in the Registration Statement or
the Prospectus or any amendment or supplement to either thereof. The
indemnity agreement of all the respective Underwriters contained in
this paragraph 11 shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Company or
any other Underwriter, or any such controlling person, and shall
survive the delivery of the Securities. The Company agrees promptly
to notify the Representative of the commencement of any litigation or
proceedings against the Company or any of its officers or directors,
or any such controlling person, in connection with the sale of the
Securities.
(c) The Company and each of the Underwriters agree that, upon
the receipt of notice of the commencement of any action against it,
its officers and directors, or any person controlling it as aforesaid,
in respect of which indemnity may be sought on account of any
indemnity agreement contained herein, it will promptly give written
notice of the commencement thereof to the party or parties against
whom indemnity shall be sought hereunder. The omission so to notify
such indemnifying party or parties of any such action shall relieve
such indemnifying party or parties from any liability which it or they
may have to the indemnified party on account of any indemnity
agreement contained herein but shall not relieve such indemnifying
party or parties from any liability which it or they may have to the
indemnified party otherwise than on account of such indemnity
agreement. In case such notice of any such action shall be so given,
such indemnifying party shall be entitled to participate at its own
expense in the defense or, if it so elects, to assume (in conjunction
with any other indemnifying parties) the defense of such action, in
which event such defense shall be conducted by counsel chosen by such
indemnifying party (or parties) and satisfactory to the indemnified
party or parties who shall be defendant or defendants in such action,
and such defendant or defendants shall bear the fees and expenses of
any additional counsel retained by them; but if the indemnifying party
shall elect not to assume the defense of such action, such
indemnifying parties will reimburse such indemnified party or parties
for the reasonable fees and expenses of any counsel retained by them;
provided, however, if the defendants in any such action include both
the indemnified party and the indemnifying party and counsel for the
indemnifying party shall have reasonably concluded that there may be a
conflict of interest involved in the representation by such counsel
of both the indemnifying party and the indemnified party, the
indemnified party or parties shall have the right to select separate
counsel, satisfactory to the indemnifying party, to participate in the
defense of such action on behalf of such indemnified party or parties
(it being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel
representing the indemnified parties who are parties to such action).
12. Termination Date of this Agreement. This Agreement may be
----------------------------------
terminated by the Representative at any time prior to the Closing Date by
mailing or delivering written notice thereof to the Company, if prior to
such time (a) there shall have occurred any general suspension of trading
in securities on the New York or Pacific Stock Exchange, or there shall
have been established by the New York or Pacific Stock Exchange or by the
Commission or by any federal or state agency or by the decision of any
court any limitation on prices for such trading or any restrictions on the
distribution of securities, or (b) there shall have occurred any new
outbreak of hostilities, including, but not limited to, an escalation of
hostilities which existed prior to the date of this Agreement, or other
national or international calamity or crisis, the effect of which on the
financial markets of the United States shall be such as to make it
impracticable, in the reasonable judgment of the Representative, for the
Underwriters to enforce contracts for the sale of the Securities, or (c)
the Company shall have sustained a substantial loss by fire, flood,
accident or other calamity which renders it impracticable, in the
reasonable judgment of the Representative, to consummate the sale of the
Securities and the delivery of the Securities by the several Underwriters
at the initial public offering price. This Agreement may also be
terminated at any time prior to the Closing Date if in the reasonable
judgment of the Representative the subject matter of any amendment or
supplement to the Registration Statement or Prospectus (other than an
amendment or supplement relating solely to the activity of any Underwriter
or Underwriters) shall have materially impaired the marketability of the
Securities. Any termination hereof pursuant to this paragraph 12 shall be
without liability of any party to any other party except as otherwise
provided in paragraphs 7 and 8.
13. Miscellaneous. The validity and interpretation of this
-------------
Agreement shall be governed by the laws of the State of New York. Unless
otherwise specified, time of day refers to New York City time. This
Agreement shall inure to the benefit of, and be binding upon, the Company,
the several Underwriters, and with respect to the provisions of paragraph
11, the officers and directors and each controlling person referred to in
paragraph 11, and their respective successors. Nothing in this Agreement
is intended or shall be construed to give to any other person, firm or
corporation any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. The term
"successors" as used in this Agreement shall not include any purchaser, as
such purchaser, of any of the Securities from any of the several
Underwriters.
14. Notices. All communications hereunder shall be in writing or
-------
by telegram and, if to the Underwriters, shall be mailed, transmitted by
any standard form of telecommunication or delivered to the Representative
at the address set forth in Schedule I hereto and if to the Company, shall
be mailed or delivered to it at 411 Fayetteville Street, Raleigh, North
Carolina 27601-1748, attention of M. S. Glass, Treasurer.
15. Counterparts. This Agreement may be simultaneously executed in
------------
counterparts, each of which when so executed shall be deemed to be an
original. Such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company the enclosed duplicate
hereof whereupon it will become a binding agreement between the Company and
the several Underwriters in accordance with its terms.
Very truly yours,
CAROLINA POWER & LIGHT COMPANY
By: \s\ Robert J. Reger, Jr.
--------------------------
Authorized Representative
Accepted as of the date first
above written, as Underwriter
named in, and as the Representative
of the other Underwriters named in, Schedule II.
PRUDENTIAL SECURITIES INCORPORATED
By: \s\ Stacy Hallis
-----------------------
SCHEDULE I
Underwriting Agreement dated January 12, 1994
Registration Statements No. 33-50597 and No. 33-60014
Representative and Address:
Prudential Securities Incorporated
One Seaport Plaza, 29th Floor
New York, NY 10292
Securities: First Mortgage Bonds
Designation: 5 7/8% Series due January 15, 2004
Principal Amount: $150,000,000
Supplemental Indenture dated as of January 15, 1994
Date of Maturity: January 15, 2004
Interest Rate: 5 7/8% per annum, payable January 15 and July l5
of each year, commencing July 15, 1994.
Purchase Price: 98.863% of the principal amount thereof,
plus accrued interest from January 15, 1994 to the date of
payment and delivery.
Public Offering Price: 99.069% of the principal amount thereof,
plus accrued interest from January 15, 1994 to the date of
payment and delivery.
Closing Date and Location:
January 19, 1994
Reid & Priest
40 West 57th Street
New York, N.Y. 10019
SCHEDULE II
Underwriters Principal Amount
------------ ----------------
Prudential Securities Incorporated $ 75,000,000
Citicorp Scurities, Inc. $ 25,000,000
Paine Webber Incorporated $ 25,000,000
Salomon Brothers Inc $ 25,000,000
TOTAL $150,000,000
============
Exhibit 4
===========================================================================
CAROLINA POWER & LIGHT COMPANY
TO
THE BANK OF NEW YORK
(FORMERLY IRVING TRUST COMPANY)
AND
W.T. CUNNINGHAM
(SUCCESSOR TO FREDERICK G. HERBST, RICHARD H. WEST, J.A. AUSTIN, E.J.
MCCABE, G. WHITE, D.W. MAY, J.A. VAUGHAN, JOSEPH J. ARNEY AND WAFAA
ORFY)
AS TRUSTEES UNDER CAROLINA POWER &
LIGHT COMPANY'S MORTGAGE AND DEED
OF TRUST, DATED AS OF MAY 1, 1940
---------------
SIXTY-SECOND SUPPLEMENTAL INDENTURE
PROVIDING AMONG OTHER THINGS FOR
FIRST MORTGAGE BONDS, 5 7/8% SERIES DUE JANUARY 15, 2004
(SIXTY-FIFTH SERIES)
----------------
DATED AS OF JANUARY 15, 1994
===========================================================================
SIXTY-SECOND SUPPLEMENTAL INDENTURE
INDENTURE, dated as of January 15, 1994, by and between CAROLINA
POWER & LIGHT COMPANY, a corporation of the State of North Carolina, whose
post office address is 411 Fayetteville Street, Raleigh, North Carolina
27601-1768 (hereinafter sometimes called the Company), and THE BANK OF NEW
YORK (formerly Irving Trust Company), a corporation of the State of New
York, whose post office address is 101 Barclay Street, New York, New York
10286 (hereinafter sometimes called the Corporate Trustee), and W.T.
CUNNINGHAM (successor to Frederick G. Herbst, Richard H. West, J.A. Austin,
E.J. McCabe, G. White, D.W. May, J.A. Vaughan, Joseph J. Arney and Wafaa
Orfy), whose post office address is 3 Arlington Drive, Denville, New Jersey
07834 (the Corporate Trustee and the Individual Trustee being hereinafter
together sometimes called the Trustees), as Trustees under the Mortgage and
Deed of Trust, dated as of May 1, 1940 (hereinafter called the Mortgage),
which Mortgage was executed and delivered by the Company to Irving Trust
Company (now The Bank of New York) and Frederick G. Herbst to secure the
payment of bonds issued or to be issued under and in accordance with the
provisions of the Mortgage, reference to which Mortgage is hereby made,
this Indenture (hereinafter sometimes called the Sixty-second Supplemental
Indenture) being supplemental thereto:
WHEREAS, the Mortgage was recorded in various Counties in the
States of North Carolina and South Carolina; and
WHEREAS, the Mortgage was indexed and cross-indexed in the real
and chattel mortgage records in various Counties in the States of North
Carolina and South Carolina; and
WHEREAS, an instrument, dated as of June 25, 1945, was executed
by the Company appointing Richard H. West as Individual Trustee in
succession to said Frederick G. Herbst (deceased) under the Mortgage, and
by Richard H. West accepting said appointment, which instrument was
recorded in various Counties in the States of North Carolina and South
Carolina; and
WHEREAS, an instrument, dated as of December 12, 1957, was
executed by the Company appointing J.A. Austin as Individual Trustee in
succession to said Richard H. West (resigned) under the Mortgage, and by
J.A. Austin accepting said appointment, which instrument was recorded in
various Counties in the States of North Carolina and South Carolina; and
WHEREAS, an instrument, dated as of April 15, 1966, was executed
by the Company appointing E.J. McCabe as Individual Trustee in succession
to said J.A. Austin (resigned) under the Mortgage, and by E.J. McCabe
accepting said appointment, which instrument was recorded in various
Counties in the States of North Carolina and South Carolina; and
WHEREAS, by the Seventeenth Supplemental Indenture mentioned
below, the Company, among other things, appointed G. White as Individual
Trustee in succession to said E.J. McCabe (resigned), and G. White accepted
said appointment; and
WHEREAS, by the Nineteenth Supplemental Indenture mentioned
below, the Company, among other things, appointed D.W. May as Individual
Trustee in succession to said G. White (resigned), and D.W. May accepted
said appointment; and
WHEREAS, by the Thirty-fifth Supplemental Indenture mentioned
below, the Company, among other things, appointed J.A. Vaughan as
Individual Trustee in succession to said D.W. May (resigned), and J.A.
Vaughan accepted said appointment; and
WHEREAS, an instrument, dated as of June 27, 1988, was executed
by the Company appointing Joseph J. Arney as Individual Trustee in
succession to said J.A. Vaughan (resigned) under the Mortgage, and by
Joseph J. Arney accepting said appointment, which instrument was recorded
in various Counties in the States of North Carolina and South Carolina; and
WHEREAS, by the Forty-fifth Supplemental Indenture mentioned
below, the Company, among other things, appointed Wafaa Orfy as Individual
Trustee in succession to said Joseph J. Arney (resigned), and Wafaa Orfy
accepted said appointment; and
WHEREAS, by the Forty-ninth Supplemental Indenture mentioned
below, the Company, among other things, appointed W.T. Cunningham as
Individual Trustee in succession to said Wafaa Orfy (resigned), and W.T.
Cunningham accepted said appointment; and
WHEREAS, such instruments were indexed and cross-indexed in the
real and chattel mortgage records in various Counties in the States of
North Carolina and South Carolina; and
WHEREAS, by the Mortgage, the Company covenanted that it would
execute and deliver such supplemental indenture or indentures and such
further instruments and do such further acts as might be necessary or
proper to carry out more effectually the purposes of the Mortgage and to
make subject to the lien of the Mortgage any property thereafter acquired
intended to be subject to the lien thereof; and
WHEREAS, for said purposes, among others, the Company executed
and delivered to the Trustees the following supplemental indentures:
DESIGNATION DATED AS OF
----------- -----------
First Supplemental Indenture January 1, 1949
Second Supplemental Indenture December 1, 1949
Third Supplemental Indenture February 1, 1951
Fourth Supplemental Indenture October 1, 1952
Fifth Supplemental Indenture March 1, 1958
Sixth Supplemental Indenture April 1, 1960
Seventh Supplemental Indenture November 1, 1961
Eighth Supplemental Indenture July 1, 1964
Ninth Supplemental Indenture April 1, 1966
Tenth Supplemental Indenture October 1, 1967
Eleventh Supplemental Indenture October 1, 1968
Twelfth Supplemental Indenture January 1, 1970
Thirteenth Supplemental Indenture August 1, 1970
Fourteenth Supplemental Indenture January 1, 1971
Fifteenth Supplemental Indenture October 1, 1971
Sixteenth Supplemental Indenture May 1, 1972
Seventeenth Supplemental Indenture May 1, 1973
Eighteenth Supplemental Indenture November 1, 1973
Nineteenth Supplemental Indenture May 1, 1974
Twentieth Supplemental Indenture December 1, 1974
Twenty-first Supplemental Indenture April 15, 1975
Twenty-second Supplemental Indenture October 1, 1977
Twenty-third Supplemental Indenture June 1, 1978
Twenty-fourth Supplemental Indenture May 15, 1979
Twenty-fifth Supplemental Indenture November 1, 1979
Twenty-sixth Supplemental Indenture November 1, 1979
Twenty-seventh Supplemental Indenture April 1, 1980
Twenty-eighth Supplemental Indenture October 1, 1980
Twenty-ninth Supplemental Indenture October 1, 1980
Thirtieth Supplemental Indenture December 1, 1982
Thirty-first Supplemental Indenture March 15, 1983
Thirty-second Supplemental Indenture March 15, 1983
Thirty-third Supplemental Indenture December 1, 1983
Thirty-fourth Supplemental Indenture December 15, 1983
Thirty-fifth Supplemental Indenture April 1, 1984
Thirty-sixth Supplemental Indenture June 1, 1984
Thirty-seventh Supplemental Indenture June 1, 1984
Thirty-eighth Supplemental Indenture June 1, 1984
Thirty-ninth Supplemental Indenture April 1, 1985
Fortieth Supplemental Indenture October 1, 1985
Forty-first Supplemental Indenture March 1, 1986
Forty-second Supplemental Indenture July 1, 1986
Forty-third Supplemental Indenture January 1, 1987
Forty-fourth Supplemental Indenture December 1, 1987
Forty-fifth supplemental Indenture September 1, 1988
Forty-sixth Supplemental Indenture April 1, 1989
Forty-seventh Supplemental Indenture August 1, 1989
Forty-eighth Supplemental Indenture November 15, 1990
Forty-ninth Supplemental Indenture November 15, 1990
Fiftieth Supplemental Indenture February 15, 1991
Fifty-first Supplemental Indenture April 1, 1991
Fifty-second Supplemental Indenture September 15, 1991
Fifty-third Supplemental Indenture January 1, 1992
Fifty-fourth Supplemental Indenture April 15, 1992
Fifty-fifth Supplemental Indenture July 1, 1992
Fifty-sixth Supplemental Indenture October 1, 1992
Fifty-seventh Supplemental Indenture February 1, 1993
Fifty-eighth Supplemental Indenture March 1, 1993
Fifty-ninth Supplemental Indenture July 1, 1993
Sixtieth Supplemental Indenture July 1, 1993
Sixty-first Supplemental Indenture August 15, 1993
which supplemental indentures were or are to be recorded in various
Counties in the States of North Carolina and South Carolina, and were or
are to be indexed and cross-indexed in the real and chattel mortgage or
security interest records in various Counties in the States of North
Carolina and South Carolina; and
WHEREAS, the Mortgage and said First through Sixty-first
Supplemental Indentures were or are to be recorded in all Counties in the
States of North Carolina and South Carolina in which this Sixty-second
Supplemental Indenture is to be recorded; and
WHEREAS, in addition to the property described in the Mortgage,
as heretofore supplemented, the Company has acquired certain other
property, rights and interests in property; and
WHEREAS, the Company has heretofore issued, in accordance with
the provisions of the Mortgage, as supplemented, the following series of
First Mortgage Bonds:
PRINCIPAL PRINCIPAL
AMOUNT AMOUNT
SERIES ISSUED OUTSTANDING
- ------ ------ -----------
3-3/4% Series due 1965 $ 46,000,000 None
3-1/8% Series due 1979 20,100,000 None
3-1/4% Series due 1979 43,930,000 None
2-7/8% Series due 1981 15,000,000 None
3-1/2% Series due 1982 20,000,000 None
4-1/8% Series due 1988 20,000,000 None
4-7/8% Series due 1990 25,000,000 None
4-1/2% Series due 1991 25,000,000 None
4-1/2% Series due 1994 30,000,000 None
5-1/8% Series due 1996 30,000,000 $30,000,000
6-3/8% Series due 1997 40,000,000 40,000,000
6-7/8% Series due 1998 40,000,000 40,000,000
8-3/4% Series due 2000 40,000,000 None
8-3/4% Series due August 1, 2000 50,000,000 None
7-3/8% Series due 2001 65,000,000 None
7-3/4% Series due October 1, 2001 70,000,000 None
7-3/4% Series due 2002 100,000,000 None
7-3/4% Series due 2003 100,000,000 100,000,000
8-1/8% Series due November 1, 2003 100,000,000 100,000,000
9-3/4% Series due 2004 125,000,000 None
11-1/8% Series due 1994 50,000,000 None
11% Series due April 15, 1984 100,000,000 None
8-1/2% Series due October 1, 2007 100,000,000 17,451,000
9-1/4% Series due June 1, 2008 100,000,000 None
10-1/2% Series due May 15, 2009 125,000,000 None
12-1/4% Series due November 1, 2009 100,000,000 None
Pollution Control Series A 63,000,000 None
14-1/8% Series due April 1, 1987 125,000,000 None
Pollution Control Series B 50,000,000 None
Pollution Control Series C 6,000,000 None
11-5/8% Series due December 1, 1992 100,000,000 None
Pollution Control Series D 48,485,000 48,485,000
Pollution Control Series E 5,970,000 5,970,000
12-7/8% Series due December 1, 2013 100,000,000 None
Pollution Control Series F 34,700,000 34,700,000
13-3/8% Series due April 1, 1994 100,000,000 None
Pollution Control Series G 122,615,000 122,615,000
Pollution Control Series H 70,000,000 None
Pollution Control Series I 70,000,000 None
Pollution Control Series J 6,385,000 1,795,000
Pollution Control Series K 2,580,000 2,580,000
Extendible Series due April 1, 1995 125,000,000 77,050,000
11-3/4% Series due October 1, 2015 100,000,000 None
8-7/8% Series due March 1, 2016 100,000,000 None
8-1/8% Series due July 1, 1996 125,000,000 None
8-1/2% Series due January 1, 2017 100,000,000 None
9.174% Series due December 1, 1992 100,000,000 None
9% Series due September 1, 1993 100,000,000 None
9.60% Series due April 1, 1991 100,000,000 None
Secured Medium-Term Notes, Series A 200,000,000 73,000,000
8-1/8% Series due November 15, 1993 100,000,000 None
Secured Medium-Term Notes, Series B 100,000,000 100,000,000
8-7/8% Series due February 15, 2021 125,000,000 125,000,000
9% Series due April 1, 2022 100,000,000 100,000,000
8-5/8% Series due September 15, 2021 100,000,000 100,000,000
5.20% Series due January 1, 1995 125,000,000 125,000,000
7-7/8% Series due April 15, 2004 150,000,000 150,000,000
8.20% Series due July 1, 2022 150,000,000 150,000,000
6-3/4% Series due October 1, 2002 100,000,000 100,000,000
6-1/8% Series due February 1, 2000 150,000,000 150,000,000
7-1/2% Series due March 1, 2023 150,000,000 150,000,000
5-3/8% Series due July 1, 1998 100,000,000 100,000,000
Secured Medium-Term Notes, Series C 90,000,000 90,000,000
6-7/8% Series due August 15, 2023 100,000,000 100,000,000
which bonds are also hereinafter sometimes called bonds of the First
through Sixty-fourth Series, respectively; and
WHEREAS, Section 8 of the Mortgage provides that the form of each
series of bonds (other than the First Series) issued thereunder and of the
coupons to be attached to coupon bonds of such series shall be established
by Resolution of the Board of Directors of the Company and that the form of
such series, as established by said Board of Directors, shall specify the
descriptive title of the bonds and various other terms thereof, and may
also contain such provisions not inconsistent with the provisions of the
Mortgage as said Board of Directors may, in its discretion, cause to be
inserted therein expressing or referring to the terms and conditions upon
which such bonds are to be issued and/or secured under the Mortgage; and
WHEREAS, Section 120 of the Mortgage provides, among other
things, that any power, privilege or right expressly or impliedly reserved
to or in any way conferred upon the Company by any provision of the
Mortgage, whether such power, privilege or right is in any way restricted
or is unrestricted, may be in whole or in part waived or surrendered or
subjected to any restriction if at the time unrestricted or to additional
restriction if already restricted, and the Company may enter into any
further covenants, limitations or restrictions for the benefit of any one
or more series of bonds issued thereunder, or the Company may cure any
ambiguity contained therein, or in any supplemental indenture, or may
establish the terms and provisions of any series of bonds other than said
First Series, by an instrument in writing executed and acknowledged by the
Company in such manner as would be necessary to entitle a conveyance of
real estate to record in all of the states in which any property at the
time subject to the lien of the Mortgage shall be situated; and
WHEREAS, the Company now desires to create a new series of bonds
and to add to its covenants and agreements contained in the Mortgage, as
heretofore supplemented, certain other covenants and agreements to be
observed by it and to alter and amend in certain respects the covenants and
provisions contained in the Mortgage, as heretofore supplemented; and
WHEREAS, the execution and delivery by the Company of this Sixty-
second Supplemental Indenture, and the terms of the bonds of the Sixty-
fifth Series, hereinafter referred to, have been duly authorized by the
Board of Directors of the Company by appropriate resolutions of said Board
of Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the Company, in consideration of the premises and of One
Dollar to it duly paid by the Trustees at or before the ensealing and
delivery of these presents, the receipt whereof is hereby acknowledged, and
in further evidence of assurance of the estate, title and rights of the
Trustees and in order further to secure the payment of both the principal
of and interest and premium, if any, on the bonds from time to time issued
under the Mortgage, according to their tenor and effect and the performance
of all the provisions of the Mortgage (including any instruments
supplemental thereto and any modification made as in the Mortgage provided)
and of said bonds, hereby grants, bargains, sells, releases, conveys,
assigns, transfers, mortgages, pledges, sets over and confirms (subject,
however, to Excepted Encumbrances as defined in Section 6 of the Mortgage)
unto The Bank of New York and W.T. Cunningham, as Trustees under the
Mortgage, and to their successor or successors in said trust, and to said
Trustees and their successors and assigns forever, all the following
described properties of the Company:
All electric generating plants, stations, transmission
lines, and electric distribution systems, including permanent
improvements, extensions or additions to or about such electrical
plants, stations, transmission lines and distribution systems of
the Company; all dams, power houses, power sites, buildings,
generators, reservoirs, pipe lines, flumes, structures and works;
all substations, transformers, switchboards, towers, poles,
wires, insulators, and other appliances and equipment, and the
Company's rights or interests in the land upon which the same are
situated, and all other property, real or personal, forming a
part of or appertaining to, or used, occupied or enjoyed in
connection with said generating plants, stations, transmission
lines, and distribution systems; together with all rights of way,
easements, permits, privileges, franchises and rights for or
related to the construction, maintenance, or operation thereof,
through, over, under or upon any public streets or highways, or
the public lands of the United States, or of any State or other
lands; and all water appropriations and water rights, permits and
privileges; including all property, real, personal, and mixed,
acquired by the Company after the date of the execution and
delivery of the Mortgage, in addition to property covered by the
above-mentioned supplemental indentures (except any herein or in
the Mortgage, as heretofore supplemented, expressly excepted),
now owned or, subject to the provisions of Section 87 of the
Mortgage, hereafter acquired by the Company and wheresoever
situated, including (without in anywise limiting or impairing by
the enumeration of the same the scope and intent of the foregoing
or of any general description contained in this Sixty-second
Supplemental Indenture) all lands, power sites, flowage rights,
water rights, flumes, raceways, dams, rights of way and roads;
all steam and power houses, gas plants, street lighting systems,
standards and other equipment incidental thereto, telephone,
radio and television systems, air-conditioning systems and
equipment incidental thereto, water works, steam heat and hot
water plants, lines, service and supply systems, bridges,
culverts, tracts, ice or refrigeration plants and equipment,
street and interurban railway systems, offices, buildings and
other structures and the equipment thereof; all machinery,
engines, boilers, dynamos, electric and gas machines, regulators,
meters, transformers, generators, motors, electrical, gas and
mechanical appliances, conduits, cables, water, steam heat, gas
or other pipes, gas mains and pipes, service pipes, fittings,
valves and connections, pole and transmission lines, wires,
cables, tools, implements, apparatus, furniture, chattels and
choses in action; all municipal and other franchises, consents or
permits; all lines for the transmission and distribution of
electric current, gas, steam heat or water for any purpose
including poles, wires, cables, pipes, conduits, ducts and all
apparatus for use in connection therewith; all real estate,
lands, easements, servitudes, licenses, permits, franchises,
privileges, rights of way and other rights in or relating to real
estate or the occupancy of the same and (except as herein or in
the Mortgage, as heretofore supplemented, expressly excepted) all
the right, title and interest of the Company in and to all other
property of any kind or nature appertaining to and/or used and/or
occupied and/or enjoyed in connection with any property
hereinbefore or in the Mortgage, as heretofore supplemented,
described.
TOGETHER WITH all and singular the tenements, hereditaments and
appurtenances belonging or in anywise appertaining to the aforesaid
property or any part thereof, with the reversion and reversions, remainder
and remainders and (subject to the provisions of Section 57 of the
Mortgage) the tolls, rents, revenues, issues, earnings, income, product and
profits thereof, and all the estate, right, title and interest and claim
whatsoever, at law as well as in equity, which the Company now has or may
hereafter acquire in and to the aforesaid property and franchises and every
part and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of Section 87 of the Mortgage, all the property, rights and
franchises acquired by the Company after the date hereof (except any herein
or in the Mortgage, as heretofore supplemented, expressly excepted) shall
be and are as fully granted and conveyed hereby and as fully embraced
within the lien hereof and the lien of the Mortgage as if such property,
rights and franchises were now owned by the Company and were specifically
described herein and conveyed hereby.
PROVIDED THAT the following are not and are not intended to be
now or hereafter granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, pledged, set over or confirmed hereunder and are
hereby expressly excepted from the lien and operation of this Sixty-second
Supplemental Indenture and from the lien and operation of the Mortgage,
namely: (1) cash, shares of stock and obligations (including bonds, notes
and other securities) not hereafter specifically pledged, paid, deposited
or delivered under the Mortgage or covenanted so to be; (2) merchandise,
equipment, materials or supplies held for the purpose of sale in the usual
course of business and fuel, oil and similar materials and supplies
consumable in the operation of any properties of the Company; rolling
stock, buses, motor coaches, vehicles and automobiles; (3) bills, notes and
accounts receivable, and all contracts, leases and operating agreements not
specifically pledged under the Mortgage, as heretofore supplemented, or
this Sixty-second Supplemental Indenture or covenanted so to be;
(4) electric energy and other materials or products generated,
manufactured, produced or purchased by the Company for sale, distribution
or use in the ordinary course of its business; and (5) any property and
rights heretofore released from the lien of the Mortgage; provided,
however, that the property and rights expressly excepted from the lien and
operation of the Mortgage and this Sixty-second Supplemental Indenture in
the above subdivisions (2) and (3) shall (to the extent permitted by law)
cease to be so excepted in the event and as of the date that either or both
of the Trustees or a receiver or trustee shall enter upon and take
possession of the Mortgaged and Pledged Property in the manner provided in
Article XII of the Mortgage by reason of the occurrence of a Default as
defined in said Article XII.
TO HAVE AND TO HOLD all such properties, real, personal and
mixed, granted, bargained, sold, released, conveyed, assigned, transferred,
mortgaged, pledged, set over or confirmed by the Company as aforesaid, or
intended so to be, unto the Trustees, their successors and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the same
terms, trusts and conditions and subject to and with the same provisos and
covenants as are set forth in the Mortgage, as heretofore supplemented,
this Sixty-second Supplemental Indenture being supplemental to the
Mortgage.
AND IT IS HEREBY COVENANTED by the Company that all the terms,
conditions, provisos, covenants and provisions contained in the Mortgage,
as heretofore supplemented, shall affect and apply to the property
hereinbefore described and conveyed and to the estate, rights, obligations
and duties of the Company and the Trustees and the beneficiaries of the
trust with respect to said property, and to the Trustees and their
successors as Trustees of said property in the same manner and with the
same effect as if the said property had been owned by the Company at the
time of the execution of the Mortgage and had been specifically and at
length described in and conveyed to the Trustees by the Mortgage as a part
of the property therein stated to be conveyed.
The Company further covenants and agrees to and with the Trustees
and their successor or successors in such trust under the Mortgage as
follows:
ARTICLE I
SIXTY-FIFTH SERIES OF BONDS
SECTION 1. There shall be a series of bonds designated "5 7/8%
Series due January 15, 2004" (herein sometimes referred to as the "Sixty-
fifth Series"), each of which shall also bear the descriptive title "First
Mortgage Bond," and the form thereof, which shall be established by
Resolution of the Board of Directors of the Company, shall contain suitable
provisions with respect to the matters hereinafter in this Section
specified. Bonds of the Sixty-fifth Series shall be initially issued in
the aggregate principal amount of $150,000,000, mature on January 15, 2004,
bear interest at the rate of 5 7/8% per annum, payable from January 15,
1994, if the date of said bonds is prior to July 15, 1994, or, if the date
of said bonds is after July 15, 1994, from the July 15 or January 15 next
preceding the date of said bonds, and thereafter semi-annually on July 15
and January 15 of each year, be issued as fully registered bonds in the
denominations of One Thousand Dollars and, at the option of the Company, in
any multiple or multiples of One Thousand Dollars (the exercise of such
option to be evidenced by the execution and delivery thereof) and be dated
as in Section 10 of the Mortgage provided, the principal of and interest on
each said bond to be payable at the office or agency of the Company in the
Borough of Manhattan, The City of New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for
public and private debts.
(I) Bonds of the Sixty-fifth Series shall not be redeemable.
(II) At the option of the registered owner, any bonds of the
Sixty-fifth Series, upon surrender thereof for cancellation at the office
or agency of the Company in the Borough of Manhattan, The City of New York,
shall be exchangeable for a like aggregate principal amount of bonds of the
same series of other authorized denominations. The bonds of the Sixty-
fifth Series may bear such legends as may be necessary to comply with any
law or with any rules or regulations made pursuant thereto or with the
rules or regulations of any stock exchange or to conform to usage or
agreement with respect thereto.
Bonds of the Sixty-fifth Series shall be transferable upon the
surrender thereof for cancellation, together with a written instrument of
transfer in form approved by the registrar duly executed by the registered
owner or by his duly authorized attorney, at the office or agency of the
Company in the Borough of Manhattan, The City of New York.
Upon any exchange or transfer of bonds of the Sixty-fifth Series,
the Company may make a charge therefor sufficient to reimburse it for any
tax or taxes or other governmental charge required to be paid by the
Company, as provided in Section 12 of the Mortgage, but the Company hereby
waives any right to make a charge in addition thereto for any exchange or
transfer of bonds of said Series.
ARTICLE II
DIVIDEND COVENANT
SECTION 2. The Company covenants and agrees that, so long as any
of the bonds of the Sixty-fifth Series remain Outstanding, the Company will
not declare or pay any dividends upon its common stock (other than
dividends in common stock) or make any other distributions on its common
stock or purchase or otherwise retire any shares of its common stock,
unless immediately after such declaration, payment, purchase, retirement or
distribution (hereinafter in this Section referred to as "Restricted
Payments"), and giving effect thereto, the amount arrived at by adding
(a) the aggregate amount of all such Restricted
Payments (other than the dividend of fifty cents ($.50) per share
declared on December 8, 1948 and paid on February 1, 1949 to
holders of Common Stock) made by the Company during the period
from December 31, 1948, to and including the effective date of
the Restricted Payment in respect of which the determination is
being made, plus
(b) an amount equal to the aggregate amount of
cumulative dividends for such period (whether or not paid) on all
preferred stock of the Company from time to time outstanding
during such period, at the rate or rates borne by such preferred
stock, plus
(c) an amount equal to the amount, if any, by which
fifteen per centum (15%) of the Gross Operating Revenues of the
Company for such period shall exceed the aggregate amount during
such period expended and/or accrued on its books for maintenance
and/or appropriated on its books out of income for property
retirement, in each case in respect of the Mortgaged and Pledged
Property and/or automotive equipment used primarily in the
electric utility business of the Company (but excluding any
provisions for amortization of any amounts included in utility
plant acquisition adjustment accounts or utility plant adjustment
accounts),
will not exceed the amount of the aggregate net income of the Company for
said period available for dividends (computed and ascertained in accordance
with sound accounting practice, on a cumulative basis, including the making
of proper deductions for any deficits occurring during any part of such
period), plus $3,000,000.
The Company further covenants and agrees that not later than May
1 of each year beginning with the year 1995 it will furnish to the
Corporate Trustee a Treasurer's Certificate stating whether or not the
Company has fully observed the restrictions imposed upon it by the covenant
contained in this Section 2.
ARTICLE III
CERTAIN PROVISIONS WITH RESPECT TO FUTURE ADVANCES
SECTION 3. Upon the filing of this Sixty-second Supplemental
Indenture for record in all counties in which the Mortgaged and Pledged
Property is located, and until a further indenture or indentures
supplemental to the Mortgage shall be executed and delivered by the Company
to the Trustees pursuant to authorization by the Board of Directors of the
Company and filed for record in all counties in which the Mortgaged and
Pledged Property is located further increasing or decreasing the amount of
future advances which may be secured by the Mortgage, as supplemented, the
Mortgage, as supplemented, may secure future advances and other
indebtedness and sums not to exceed in the aggregate $750,000,000, in
addition to $2,383,646,000 in aggregate principal amount of bonds to be
Outstanding at the time of such filing, and all such advances and other
indebtedness and sums shall be secured by the Mortgage, as supplemented,
equally, to the same extent and with the same priority, as the amount
originally advanced on the security of the Mortgage, namely, $46,000,000,
and such advances and other indebtedness and sums may be made or become
owing and may be repaid and again made or become owing and the amount so
stated shall be considered only as the total amount of such advances and
other indebtedness and sums as may be outstanding at one time.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4. Subject to the amendments provided for in this Sixty-
second Supplemental Indenture, the terms defined in the Mortgage, as
heretofore supplemented, shall, for all purposes of this Sixty-second
Supplemental Indenture, have the meanings specified in the Mortgage, as
heretofore supplemented.
SECTION 5. The provisions of the third and fourth paragraphs of
Section 64 of the Mortgage with reference to the bonds of the First Series
(therein called "1965 Series") shall also be deemed to apply separately to
the bonds of the Sixty-fifth Series to the same extent as if such
paragraphs had been repeated in said Section 64 with the words "Sixty-fifth
Series" substituted therein wherever the figure and word "1965 Series"
occur.
SECTION 6. The Trustees hereby accept the trusts herein
declared, provided, created or supplemented and agree to perform the same
upon the terms and conditions herein and in the Mortgage, as heretofore
supplemented, set forth and upon the following terms and conditions:
The Trustees shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of
this Sixty-second Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made by
the Company solely. In general each and every term and condition
contained in Article XVI of the Mortgage shall apply to and form
part of this Sixty-second Supplemental Indenture with the same
force and effect as if the same were herein set forth in full
with such omissions, variations and insertions, if any, as may be
appropriate to make the same conform to the provisions of this
Sixty-second Supplemental Indenture.
SECTION 7. Subject to the provisions of Article XV and Article
XVI of the Mortgage, whenever in this Sixty-second Supplemental Indenture
either of the parties hereto is named or referred to, this shall be deemed
to include the successors or assigns of such party, and all the covenants
and agreements in this Sixty-second Supplemental Indenture contained by or
on behalf of the Company or by or on behalf of the Trustees shall bind and
inure to the benefit of the respective successors and assigns of such
parties whether so expressed or not.
SECTION 8. Nothing in this Sixty-second Supplemental Indenture,
expressed or implied, is intended, or shall be construed, to confer upon,
or to give to, any person, firm or corporation, other than the parties
hereto and the holders of the Outstanding bonds and coupons, any right,
remedy or claim under or by reason of this Sixty-second Supplemental
Indenture or any covenant, condition, stipulation, promise or agreement
hereof, and all the covenants, conditions, stipulations, promises and
agreements in this Sixty-second Supplemental Indenture contained by or on
behalf of the Company shall be for the sole and exclusive benefit of the
parties hereto, and of the holders of the Outstanding bonds and coupons.
SECTION 9. This Sixty-second Supplemental Indenture shall be
executed in several counterparts, each of which shall be an original and
all of which shall constitute but one and the same instrument.
IN WITNESS WHEREOF, Carolina Power & Light Company has caused its
corporate name to be hereunto affixed, and this instrument to be signed and
sealed by its President or one of its Vice Presidents or its Treasurer and
its corporate seal to be attested by its Secretary or one of its Assistant
Secretaries, and The Bank of New York has caused its corporate name to be
hereunto affixed, and this instrument to be signed and sealed by one of its
Vice Presidents or Assistant Vice Presidents, and its corporate seal to be
attested by one of its Assistant Vice Presidents or Assistant Secretaries
and W.T. Cunningham has hereunto set his hand and affixed his seal, all as
of the day and year first above written.
CAROLINA POWER & LIGHT COMPANY
By \s\ Margaret S. Glass
----------------------------
Treasurer
ATTEST:
\s\ Adrian N. Wilson
- --------------------------
Assistant Secretary
Executed, sealed and delivered by
CAROLINA POWER & LIGHT
COMPANY in the presence of:
\s\ Allison M. Mathews
- ---------------------------
Allison M. Mathews
\s\ Shelia L. Jones
- ---------------------------
Shelia L. Jones
THE BANK OF NEW YORK, as Trustee
By \s\ Lloyd A. McKenzie
----------------------------------
Assistant Vice President
ATTEST:
\s\ Louis J. Hack
- -----------------------------
Assistant Secretary
\s\ W.T. Cunningham (L.S.)
-----------------------
W.T. Cunningham
Executed, sealed and delivered
by THE BANK OF NEW YORK
and W.T. CUNNINGHAM
in the presence of:
\s\ E. Elcock
- ---------------------------
E. Elcock
\s\ Paul J. Schmalzel
- ---------------------------
Paul J. Schmalzel
STATE OF NORTH CAROLINA )
) SS.:
COUNTY OF WAKE )
This 17th day of January, A.D. 1994, personally came before me,
DONNA M. CASSADA, a Notary Public in and for the County aforesaid, MARGARET
S. GLASS, who, being by me duly sworn, says that she is the Treasurer of
CAROLINA POWER & LIGHT COMPANY, and that the seal affixed to the foregoing
instrument in writing is the corporate seal of said company, and that said
writing was signed and sealed by her in behalf of said corporation by its
authority duly given. And the said MARGARET S. GLASS acknowledged the said
writing to be the act and deed of said corporation.
On the 17th day of January, in the year of 1994, before me
personally came MARGARET S. GLASS, to me known, who, being by me duly
sworn, did depose and say that she resides at 809 Lakestone Drive, Raleigh,
State of North Carolina; that she is the Treasurer of CAROLINA POWER &
LIGHT COMPANY, one of the corporations described in and which executed the
above instrument; that she knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation, and that
she signed her name thereto by like order.
\s\ Donna M. Cassada
----------------------------------------
DONNA M. CASSADA
NOTARY PUBLIC, State of North Carolina
Wake County
My Commission Expires November 16, 1997
STATE OF NORTH CAROLINA )
) SS.:
COUNTY OF WAKE )
Personally appeared before me SHELIA L. JONES, who being duly
sworn, says that she saw the corporate seal of CAROLINA POWER & LIGHT
COMPANY affixed to the above written instrument, and that she also saw
MARGARET S. GLASS, the Treasurer, with ADRIAN N. WILSON, an Assistant
Secretary, of said CAROLINA POWER & LIGHT COMPANY, sign and attest the
same, and that she, deponent, with ALLISON M. MATHEWS, witnessed the
execution and delivery thereof as the act and deed of said CAROLINA POWER &
LIGHT COMPANY.
\s\ Shelia L. Jones
--------------------------
Shelia L. Jones
Sworn to before me this
17th day of January, 1994
\s\ Donna M. Cassada
- ---------------------------------------
DONNA M. CASSADA
NOTARY PUBLIC, State of North Carolina
Wake County
My Commission Expires November 16, 1997
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
This 18th day of January, A.D. 1994, personally came before me,
CHRISTIAN O. NAGLER, a Notary Public in and for the County aforesaid, LLOYD
A. MCKENZIE, who, being by me duly sworn, says that he is an Assistant Vice
President of THE BANK OF NEW YORK, and that the seal affixed to the
foregoing instrument in writing is the corporate seal of said company, and
that said writing was signed and sealed by him in behalf of said
corporation by its authority duly given. And the said LLOYD A. MCKENZIE
acknowledged the said writing to be the act and deed of said corporation.
On the 18th day of January, in the year 1994, before me
personally came LLOYD A. MCKENZIE, to me known, who, being by me duly
sworn, did depose and say that he resides in Rosedale, New York; that he is
an Assistant Vice President of THE BANK OF NEW YORK, one of the
corporations described in and which executed the above instrument; that he
knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation, and that he signed his name thereto
by like order.
I, CHRISTIAN O. NAGLER, a Notary Public in and for the County
aforesaid, do hereby certify that W.T. CUNNINGHAM personally appeared
before me this day and acknowledged the due execution by him as successor
Individual Trustee of the foregoing instrument.
On the 18th day of January, 1994, before me personally came W.T.
CUNNINGHAM, to me known to be the person described in and who executed the
foregoing instrument and acknowledged that he, as successor Individual
Trustee, executed the same.
WITNESS my hand and official seal this 18th day of January, 1994.
\s\ Christian O. Nagler
-----------------------------------
CHRISTIAN O. NAGLER
NOTARY PUBLIC, State of New York
No. O1NA5014956
Qualified in New York County
Certificate filed in New York County
Commission Expires July 12, 1995
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
Personally appeared before me PAUL J. SCHMALZEL, who, being duly
sworn, says that he saw the corporate seal of THE BANK OF NEW YORK affixed
to the above written instrument and that he also saw LLOYD A. MCKENZIE, an
Assistant Vice President, with LOUIS J. HACK, an Assistant Secretary, of
said THE BANK OF NEW YORK, sign and attest the same, and that he, deponent,
with E. ELCOCK, witnessed the execution and delivery thereof as the act and
deed of said THE BANK OF NEW YORK.
Personally appeared before me PAUL J. SCHMALZEL, who, being duly
sworn, says that he saw the within named W.T. CUNNINGHAM, as successor
Individual Trustee, sign, seal and as his act and deed deliver the
foregoing instrument for the purposes therein mentioned, and that he,
deponent, with E. ELCOCK, witnessed the execution thereof.
\s\ Paul J. Schmalzel
-------------------------
Paul J. Schmalzel
Sworn to before me this
18th day of January, 1994
\s\ Christian O. Nagler
- -------------------------------
CHRISTIAN O. NAGLER
NOTARY PUBLIC, State of New York
No. O1NA5014956
Qualified in New York County
Certificate filed in New York County
Commission Expires July 12, 1995
EXHIBIT 12
CAROLINA POWER & LIGHT COMPANY
COMPUTATION OF RATIO OF EARNINGS
TO FIXED CHARGES
----------------------------------------
Twelve Months Ended
----------------------------------------
September 30, December 31,
-------------------------
1993 1992 1991
---- ---- ----
(Unaudited)
(Thousands of Dollars)
Earnings, as defined:
Net income....................... $ 353,473 $ 379,635 $ 376,974
Fixed charges, as below.......... 246,718 253,215 279,960
Income taxes, as below........... 196,031 211,717 206,004
--------- --------- ---------
Total earnings, as defined..... $ 796,222 $ 844,567 $ 862,938
========= ========= =========
Fixed Charges, as defined:
Interest on long-term debt....... $ 212,726 $ 223,158 $ 233,268
Other interest................... 18,477 15,717 33,352
Imputed interest factor in
rentals-charged principally
to operating expenses.......... 15,515 14,340 13,340
--------- --------- ---------
Total fixed charges, as defined $ 246,718 $ 253,215 $ 279,960
========= ========= =========
Earnings Before Income Taxes....... $ 549,504 $ 591,352 $ 582,978
========= ========= =========
Income Taxes:
Included in operating expenses... $ 199,261 $ 210,266 $ 200,711
Included in other income:
Income tax expense (credit).... 4,102 5,885 9,686
Harris Plant carrying costs.... 403 1,969 1,563
Other income, net.............. 10 58 25
Included in AFUDC-borrowed funds. 565 2,060 2,694
Included in AFUDC-deferred taxes
in nuclear fuel amortization
and book depreciation.......... (8,310) (8,521) (8,675)
Included in cumulative effect of
change in accounting for
revenues....................... - - -
--------- --------- ---------
Total income taxes............. $ 196,031 $ 211,717 $ 206,004
========= ========= =========
Ratio of Earnings to Fixed Charges. 3.23 3.34 3.08
--------------------------------------
Twelve Months Ended
--------------------------------------
December 31,
-----------------------------------
1990 1989 1988
---- ---- ----
(Thousands of Dollars)
Earnings, as defined:
Net income....................... $ 380,358 $ 376,067 $ 196,813
Fixed charges, as below.......... 337,792 266,134 275,883
Income taxes, as below........... 175,322 158,535 105,090
--------- --------- ---------
Total earnings, as defined..... $ 893,472 $ 800,736 $ 577,786
========= ========= =========
Fixed Charges, as defined:
Interest on long-term debt....... $ 236,473 $ 220,840 $ 224,567
Other interest................... 88,086 32,579 37,433
Imputed interest factor in
rentals-charged principally
to operating expenses.......... 13,233 12,715 13,883
--------- --------- ---------
Total fixed charges, as defined $ 337,792 $ 266,134 $ 275,883
========= ========= =========
Earnings Before Income Taxes....... $ 555,680 $ 534,602 $ 301,903
========= ========= =========
Income Taxes:
Included in operating expenses... $ 156,934 $ 160,792 $ 135,106
Included in other income:
Income tax expense (credit).... (34,397) 175 (48,509)
Harris Plant carrying costs.... (3,539) 2,175 6,663
Other income, net.............. 21 15 17,450
Included in AFUDC-borrowed funds. 3,081 4,513 4,192
Included in AFUDC-deferred taxes
in nuclear fuel amortization
and book depreciation............ (8,869) (9,135) (9,812)
Included in cumulative effect of
change in accounting for
revenues....................... 62,091 - -
--------- --------- ---------
Total income taxes............. $ 175,322 $ 158,535 $ 105,090
========= ========= =========
Ratio of Earnings to Fixed Charges. 2.65 3.01 2.09
