Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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CAROLINA POWER & LIGHT COMPANY
(Exact name of registrant as specified in its charter)
411 Fayetteville Street
Raleigh, North Carolina 27601-1748
(919) 546-6111
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
North Carolina 56-0165465
(State of Incorporation) (I.R.S. Employer Identification No.)
SHERWOOD H. SMITH, Jr. ROBERT J. REGER, JR.,ESQ.
Chairman and Chief Executive Officer Reid & Priest LLP
RICHARD E. JONES, Esq., 40 West 57th Street
Senior Vice President, New York, New York 10019-4097
General Counsel and Secretary (212) 603-2000
411 Fayetteville Street
Raleigh, North Carolina 27601-1748
(919) 546-6111
(Names and addresses, including zip codes, and telephone numbers, including
area codes, of agents for service)
It is respectfully requested that the Commission send copies of all
notices, orders and communications to:
STEPHEN K. WAITE, Esq.
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004-1490
(212) 858-1000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: When
market conditions warrant after the Registration Statement becomes
effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. [x]
CALCULATION OF REGISTRATION FEE
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Title of
Each Class Proposed Proposed
of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Unit Price Fee
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First
Mortgage
Bonds....... (1)(3) (2) (1)(2)(3) N/A
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Debt
Securities.. (1)(4) (2) (1)(2)(4) N/A
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Total.... $250,000,000 (2) $250,000,000 $86,208(5)
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(1) In no event will the aggregate initial offering price of all
securities issued from time to time pursuant to this Registration
Statement exceed $250,000,000. If any such securities are issued at
an original issue discount, then the aggregate initial offering price
as so discounted shall not exceed $250,000,000, notwithstanding that
the stated principal amount of such securities may exceed such amount.
(2) The proposed maximum initial offering price per unit will be
determined, from time to time, by the registrant in connection with
the issuance by the registrant of the securities registered hereunder.
(3) Subject to footnote (1), there are being registered hereunder an
indeterminate principal amount of First Mortgage Bonds as may be sold,
from time to time, by the registrant.
(4) Subject to footnote (1), there are being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold, from
time to time, by the registrant.
(5) Calculated pursuant to Rule 457(o) of the rules and regulations under
the Securities Act of 1933.
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Pursuant to Rule 429 under the Securities Act of 1933, the prospectus
filed as part of this Registration Statement will be used as a combined
prospectus in connection with this Registration Statement and registration
statement No. 33-50597.
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The registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
SUBJECT TO COMPLETION, DATED FEBRUARY 24, 1995
P R O S P E C T U S
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$700,000,000
CAROLINA POWER & LIGHT COMPANY
FIRST MORTGAGE BONDS
DEBT SECURITIES
Carolina Power & Light Company ("CP&L") intends to offer from time to
time up to $700,000,000 aggregate principal amount of its securities, at
least $450,000,000 of which will consist of First Mortgage Bonds of CP&L
(the "New Bonds") and the remaining $250,000,000 of which will consist of
either New Bonds or other debt securities of CP&L (such other debt
securities, the "Debt Securities", and, together with the New Bonds, the
"Securities"), or any combination thereof, in one or more series at prices
and on terms to be determined at the time of sale.
For each issue of Securities for which this Prospectus is being
delivered (the "Offered Bonds" or the "Offered Debt Securities", as the
case may be, and, together, the "Offered Securities") there will be an
accompanying Prospectus Supplement (the "Prospectus Supplement") that sets
forth, without limitation and to the extent applicable, the specific
designation, aggregate principal amount, denomination, maturity, premium,
if any, rate of interest (which may be fixed or variable) or method of
calculation thereof, time of payment of interest, any terms for redemption,
any sinking fund provisions, any subordination provisions (in the case of
the Debt Securities only), the initial public offering price, the names of
any underwriters or agents, the principal amounts, if any, to be purchased
by underwriters, the compensation of such underwriters or agents and any
other special terms of the Offered Securities. The Prospectus Supplement
relating to the Offered Securities will also contain information concerning
certain U.S. federal income tax considerations, if applicable to the
Offered Securities.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR BY ANY STATE SECURITIES
COMMISSION, NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The Securities may be sold directly by CP&L or through agents desig-
nated from time to time or through dealers or underwriters. If any agents
of CP&L or any underwriters are involved in the sales of the Offered
Securities, the names of such agents or such underwriters and any appli-
cable commissions or discounts will be set forth in the Prospectus
Supplement.
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The date of this Prospectus is , 1995
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL
OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY JURISDICTION IN WHICH SUCH OFFER, SOLICITATION, OR SALE
WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE
SECURITIES LAWS OF ANY SUCH JURISDICTION.
<PAGE>
AVAILABLE INFORMATION
CP&L is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and
Exchange Commission (the "Commission"). Reports, proxy statements and
other information filed by CP&L with the Commission can be inspected and
copied at the public reference facilities maintained by the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549
and at the following Regional Offices of the Commission: New York Regional
Office, 7 World Trade Center, 13th Floor, New York, New York 10048 and
Chicago Regional Office, 500 West Madison Street, 14th Floor, Chicago,
Illinois 60661-2511. Copies of such material can also be obtained at
prescribed rates from the Public Reference Section of the Commission, 450
Fifth Street, N.W., Washington, D.C. 20549. Such reports, proxy statements
and other information can also be inspected at the offices of the New York
Stock Exchange, Inc., 20 Broad Street, New York, New York 10005, and the
Pacific Stock Exchange Incorporated, 301 Pine Street, San Francisco,
California 94104, on which CP&L's Common Stock is listed.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which are on file with the Commission (File
No. 1-3382) under the Exchange Act, are incorporated by reference in this
Prospectus and made a part hereof:
(a) CP&L's most recently filed Annual Report on Form 10-K;
(b) CP&L's Quarterly Reports on Form 10-Q filed since the end of
CP&L's fiscal year covered by its most recent Annual Report on
Form 10-K; and
(c) CP&L's Current Reports on Form 8-K filed since the end of CP&L's
fiscal year covered by its most recent Annual Report on Form 10-K.
All other documents subsequently filed by CP&L pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of
the offering of the Securities hereunder shall be deemed to be incorporated
herein by reference. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document
which is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this Prospectus.
CP&L will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus has been delivered, on
the written or oral request of any such person, a copy of any or all of the
documents referred to above which have been or may be incorporated in this
Prospectus by reference, other than exhibits to such documents (unless such
exhibits are specifically incorporated by reference into such documents).
Requests for copies of such documents should be directed to Robert F.
Drennan, Jr., Manager Financial Planning and Analysis, Treasury Department,
Carolina Power & Light Company, 411 Fayetteville Street, Raleigh, North
Carolina 27601-1748, telephone 919-546-7474.
THE COMPANY
CP&L is a public service corporation formed under the laws of North
Carolina in 1926 and is engaged in the generation, transmission,
distribution and sale of electricity in portions of North Carolina and
South Carolina. The principal executive offices of CP&L are located at 411
Fayetteville Street, Raleigh, North Carolina 27601-1748, telephone 919-546-
6111.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth CP&L's historical ratio of earnings to
fixed charges for each of the indicated periods.
Twelve Months Ended December 31,
--------------------------------
1994 1993 1992 1991 1990
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3.31x 3.23x 3.34x 3.08x 2.65x
APPLICATION OF PROCEEDS
Except as otherwise described in the Prospectus Supplement, the net
proceeds from the sale of the Offered Securities will be used primarily for
CP&L's ongoing construction and maintenance program, for the redemption,
repurchase, repayment, or retirement of outstanding indebtedness or for
other general corporate purposes. Any proceeds not immediately so applied
when received may be invested temporarily, pending such application, in
U.S. government or agency obligations, commercial paper, bank certificates
of deposit, or repurchase agreements collateralized by U.S. government or
agency obligations, or will be deposited with banks.
DESCRIPTION OF NEW BONDS
GENERAL
The New Bonds are to be issued under a Mortgage and Deed of Trust,
dated as of May 1, 1940, with The Bank of New York (formerly Irving Trust
Company) (the "Mortgage Trustee") and Frederick G. Herbst (W.T. Cunningham,
successor), as Trustees, as supplemented by indentures supplemental
thereto, all of which are collectively referred to as the "Mortgage." All
First Mortgage Bonds of CP&L (including the New Bonds) issued and to be
issued under the Mortgage are hereinafter sometimes referred to as "Bonds."
The statements herein concerning the New Bonds and the Mortgage are merely
an outline and do not purport to be complete. Such statements make use of
the terms defined in the Mortgage and are qualified in their entirety by
express reference to the sections and articles of the Mortgage cited
herein.
Reference is made to the Prospectus Supplement for the following terms
of the Offered Bonds (among others): (i) the designation, series and
aggregate principal amount of the Offered Bonds; (ii) the percentage or
percentages of their principal amount at which such Offered Bonds will be
issued; (iii) the date or dates on which the Offered Bonds will mature;
(iv) the rate or rates (which may be either fixed or variable), and/or the
method of determination of such rate or rates, per annum at which the
Offered Bonds will bear interest; (v) the date or dates on which such
interest will be payable; (vi) the denominations in which the Offered Bonds
are authorized to be issued; (vii) whether such Offered Bonds are to be
issued in whole or in part in the form of one or more global Bonds and, if
so, the identity of the depositary for such global Bonds; (viii) redemption
terms, if any; and (ix) any other specific terms.
FORM AND EXCHANGES
The New Bonds will be issuable in the form of registered bonds without
coupons. They will be exchangeable without charge for other New Bonds of
different authorized denominations, in each case for a like aggregate
principal amount, and may be transferred without charge, other than for
applicable stamp taxes or other governmental charges.
INTEREST AND PAYMENT
Reference is made to the Prospectus Supplement for the interest rate
or rates (which may be either fixed or variable), and/or the method of
determination of such rate or rates, of the Offered Bonds and the date or
dates on which such interest is payable. Except as otherwise provided in
the Prospectus Supplement relating to the Offered Bonds, principal and
interest are payable at The Bank of New York in New York City.
CP&L has covenanted to pay interest on any overdue principal and (to
the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest on the Bonds of all series at
the rate of 6% per annum. (Mortgage, Sec. 78.)
REDEMPTION AND PURCHASE OF BONDS
The New Bonds may be redeemable, in whole or in part, on at least 30
days' notice at the general redemption prices set forth in the Prospectus
Supplement for all redemptions including redemptions (i) for the basic
improvement fund, (ii) for the maintenance and replacement fund, (iii) for
the sinking fund, if any, which may be established for a New Bond of a
designated interest rate and maturity, (iv) with certain deposited cash,
(v) with the proceeds of released property or (vi) at the option of CP&L.
Reference is made to the Prospectus Supplement for the redemption terms, if
any, of the Offered Bonds.
If at the time notice of redemption is given the redemption moneys are
not on deposit with the Mortgage Trustee, the redemption may be subject to
their deposit with the Mortgage Trustee on or before the date fixed for
redemption and such notice shall be of no effect unless such moneys are so
received.
Cash deposited under any provisions of the Mortgage (with certain
exceptions) may be applied to the purchase of Bonds of any series.
(Mortgage, Art. X.)
IMPROVEMENT FUND
As to each outstanding series of Bonds, basic improvement fund
payments are required in an amount equal to 1/2 of 1% per year of the
greatest amount of Bonds of such series outstanding prior to the year in
which such payment is due. Payments may be made in cash or principal
amount of Bonds of the particular series, or credit may be taken for
property additions at 100% (70% in the case of all outstanding series of
Bonds issued prior to the Bonds of the Eleventh Series) of cost or fair
value, or credit may be taken for Bonds of any series or prior lien bonds
retired. The requirement may be anticipated at any time. Additional
improvement fund payments in an amount equal to 1/2 of 1% per year are
required by the terms of each outstanding series of Bonds issued prior to
the Bonds of the Eleventh Series, making a total of 1% as to each of those
series. CP&L has reserved the right to amend the Mortgage, without any
consent or other action by the holders of the Bonds of the Eleventh Series
or any subsequently created series (including each series of the New
Bonds), to eliminate the basic improvement fund payments of 1/2 of 1% with
respect to each series (including each series of the New Bonds).
(Mortgage, Sec. 39; First through Ninth Supplementals, Sec. 3; Tenth
Supplemental, Sec. 5.)
MAINTENANCE AND REPLACEMENT FUND
There shall be expended for each year 15% of the adjusted gross
operating revenues for maintenance and replacements in respect of the
mortgaged property and certain automotive equipment of CP&L. Excess
expenditures for such purposes in any year may be credited against the
requirements in any subsequent year. If CP&L is not permitted by
regulatory authority to include 15% of such revenues for such purposes in
operating expenses, the requirements are correspondingly reduced. Such
requirements may be met by depositing cash with the Mortgage Trustee,
certifying expenditures for maintenance and repairs, certifying gross
property additions, certifying gross expenditures for certain automotive
equipment, or by taking credit for Bonds and prior lien bonds retired.
Such cash may be withdrawn on expenditures for gross property additions or
on waiver of the right to issue Bonds or be applied to the purchase or
redemption of Bonds of such series as may be designated by CP&L. See
"Redemption and Purchase of Bonds."
CP&L has reserved the right to amend the Mortgage, without any consent
or other action by holders of the Bonds of the Twenty-third Series or any
subsequently created series (including each series of the New Bonds), to
eliminate the maintenance and replacement fund payments with respect to the
Bonds of the Twenty-third Series and any subsequently created series
(including each series of the New Bonds). (Mortgage, Sec. 38; Twenty-second
Supplemental, Sec. 7.)
SPECIAL PROVISIONS FOR RETIREMENT OF BONDS
If, during any twelve month period, property is disposed of by order
of or to any governmental authority, resulting in the receipt of
$10,000,000 or more as proceeds therefor, CP&L (subject to certain
conditions) must apply such proceeds, less certain deductions, to the
retirement of Bonds. The Bonds are redeemable at the general redemption
prices for this purpose, but only a pro-rata portion of each series of
Bonds then outstanding (including each series of the New Bonds) is
redeemable for this purpose. CP&L has reserved the right to amend the
Mortgage to eliminate the foregoing special provisions for retirement of
Bonds. (Mortgage, Sec. 64; Ninth Supplemental, Sec. 6.)
SECURITY
The New Bonds and any other Bonds will be secured by the Mortgage,
which constitutes, in the opinion of General Counsel for CP&L, a first
mortgage lien on all of the present properties of CP&L (except as stated
below), subject to (a) leases of minor portions of CP&L's property to
others for uses which, in the opinion of such counsel, do not interfere
with CP&L's business, (b) leases of certain property of CP&L not used in
its electric utility business, and (c) excepted encumbrances, minor defects
and irregularities. There are excepted from the lien: all merchandise,
equipment, materials or supplies held for sale and fuel, oil and similar
consumable materials and supplies; vehicles and automobiles; cash,
securities, receivables and all contracts, leases and operating agreements
not pledged or required so to be; and electric energy and other products.
The Mortgage contains provisions for subjecting to the lien thereof
(subject to limitations in the case of consolidation, merger or sale of
substantially all of CP&L's assets) property, other than property of the
kind excepted above, acquired after the date of delivery of the Mortgage.
(Mortgage, Art. XV.)
The Mortgage provides that the Trustees shall have a lien upon the
mortgaged property, prior to the Bonds, for the payment of their reasonable
compensation and expenses and for indemnity against certain liabilities.
(Mortgage, Sec. 96.)
ISSUANCE OF ADDITIONAL BONDS
The maximum principal amount of Bonds which may be issued under the
Mortgage is unlimited. Bonds of any series may be issued from time to time
on the basis of (1) 70% of property additions after adjustments to offset
retirements; (2) retirement of Bonds or prior lien bonds; or (3) deposit of
cash. With certain exceptions in the case of (2) above, the issuance of
Bonds is subject to adjusted net earnings for 12 out of the preceding 15
months before interest and income taxes being (a) at least twice the annual
interest requirements on, or (b) at least 10% of the principal amount of,
all Bonds at the time outstanding, including the additional issue, and all
indebtedness of prior or equal rank. Such adjusted net earnings are
computed after provision for repairs, maintenance and retirement of
property equal to the maintenance and replacement fund requirements for
such period. Cash so deposited may be withdrawn upon the basis stated in
clauses (1) and (2) above. See "Modification of the Mortgage."
Property additions must consist of electric property, or property used
or useful in connection therewith, acquired after December 31, 1939, but
may not include securities, vehicles or automobiles. CP&L has reserved the
right to amend the Mortgage, without any consent or other action of the
holders of the Twenty-fourth Series or any subsequently created series
(including each series of the New Bonds), to make available as property
additions any form of space satellites (including solar power satellites),
space stations and other analogous facilities. CP&L estimates that, as of
December 31, 1994, there were approximately $2.2 billion of net property
additions available for the issuance of Bonds, which, using the test
specified in clause (1) of the previous paragraph, would provide a basis
for the issuance of approximately $1.5 billion of additional Bonds as of
such date.
The Mortgage contains restrictions upon the issuance of Bonds against
property subject to liens and upon the increase of the amount of such
liens. (Mortgage, Secs. 4-7, 20-30 and 46; Twenty-third Supplemental, Sec.
5.)
DIVIDEND RESTRICTIONS
So long as any Bonds remain outstanding, and unless otherwise
specified in the Prospectus Supplement with respect to the New Bonds, cash
dividends and distributions on common stock are restricted to aggregate net
income available therefor (after preferred dividends) since December 31,
1948, plus $3,000,000. No portion of retained earnings at December 31,
1994 is restricted by this provision. See "Modification of the Mortgage."
MODIFICATION OF THE MORTGAGE
The rights of the Bondholders may be modified with the consent of 70%
of the Bonds and, if less than all series of Bonds are affected, the
consent also of 70% of the Bonds of each series affected. CP&L has
reserved the right to amend the Mortgage, without any consent or other
action by holders of the Bonds of the Fourteenth Series or any subsequently
created series (including each series of the New Bonds), to substitute for
the foregoing provision a provision to the effect that the rights of the
Bondholders may be modified with the consent of holders of 66-2/3% of the
Bonds, and, if less than all series of Bonds are affected, the consent also
of holders of 66-2/3% of the Bonds of each series affected. In general, no
modification of the terms of payment of principal or interest, and no
modification affecting the lien or reducing the percentage required for
modification, is effective against any Bondholder without such Bondholder's
consent. (Mortgage, Art. XVIII; Thirteenth Supplemental, Sec. 5.)
In addition, CP&L may elect to modify the dividend covenant applic-
able to a particular series of New Bonds to provide that CP&L may declare
and pay dividends in cash or property on its common stock only out of
Surplus, as defined, or out of net profits for the fiscal year or the
preceding fiscal year. However, dividends may not be paid out of net
profits if the Capital of CP&L, as defined, has been diminished to a
specified extent.
DEFAULTS AND NOTICE THEREOF
An event of default is defined as being: default in payment of
principal of Bonds; default for 30 days in payment of interest on Bonds;
default in payment of interest on or principal of prior lien bonds
continued beyond grace periods; default for 60 days in payment of
installments of funds for retirement of Bonds (including the improvement
and maintenance and replacement funds); certain events in bankruptcy,
insolvency or reorganization; and default for 90 days after notice in
performance of other covenants. (Mortgage, Sec. 65.) The Trustees may
withhold notice of default (except in payment of principal, interest or
funds for retirement of Bonds) if they think it in the interest of the
Bondholders. (Mortgage, Sec. 66; Third Supplemental, Sec. 15.)
In case of a default, holders of 25% of the Bonds may declare the
principal and interest due and payable, but the holders of a majority may
annul such declaration and destroy its effect if such default has been
cured. (Mortgage, Sec. 67.) No holder of Bonds may enforce the lien of
the Mortgage unless such holder has given the Trustees written notice of a
default and unless the holders of 25% of the Bonds have requested the
Trustees in writing to act and have offered the Trustees reasonable
opportunity to act. (Mortgage, Sec. 80.) The Trustees are not required to
risk their funds or incur personal liability if there is a reasonable
ground for believing that repayment to the Trustees is not reasonably
assured. (Mortgage, Sec. 94.) Holders of a majority of the Bonds may
direct the time, method and place of conducting any proceedings for any
remedy available to the Trustees, or exercising any trust or power
conferred upon the Trustees. (Mortgage, Sec. 71.)
EVIDENCE TO BE FURNISHED TO THE MORTGAGE TRUSTEE UNDER THE MORTGAGE
Compliance with Mortgage provisions is evidenced by written statements
of CP&L's officers or persons selected or paid by CP&L (such as an engineer
with respect to the value of property being certified or released, an
accountant with respect to a net earnings certificate and counsel with
respect to property titles and compliance with the Mortgage generally). In
certain major matters (as required by Section 314(d) of the Trust Indenture
Act of 1939, as amended) the accountant or engineer must be independent.
Various certificates and other papers are required to be filed annually and
upon the happening of various events. General periodic evidence is
required to be furnished as to compliance with the conditions and covenants
under the Mortgage.
CP&L may reserve the right to amend the Mortgage, without the consent
of the holders of one or more series of New Bonds or of any subsequently
created series, as follows: (i) to reduce the percentage of the holders of
the Bonds who must consent to certain modifications of the Mortgage to a
majority of the holders of all Bonds adversely affected; (ii) to except
from the lien of the Mortgage all property not funded or eligible to be
funded under the Mortgage for the issuance of Bonds, the release of
property or any other purpose under the Mortgage; (iii) to increase the
period during which the net earnings test may be calculated from 15 months
to 18 months; (iv) to allow the release of property from the lien of the
Mortgage at cost or at the value of such property at the time it became
funded property; (v) to simplify the release of unfunded property from the
lien of the Mortgage, if after the release CP&L will have at least one
dollar ($1) in unfunded property remaining; (vi) to increase the amount of
funded property that may be released or retired on the basis of the
retirement of Bonds from 100% to 143%; and (vii) to eliminate the annual
certificate from CP&L to the Mortgage Trustee regarding the amounts
accrued, expended or appropriated for maintenance or property retirements.
CONCERNING THE MORTGAGE TRUSTEE
In the regular course of business, CP&L obtains short-term funds from
several banks including, in certain instances, The Bank of New York.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The Debt Securities may be issued in one or more new series under an
Indenture or Indentures (the "Indenture") between CP&L and Bankers Trust
Company, or other trustee to be named, as Trustee (each, a "Trustee"). The
statements herein concerning (i) the Indenture, (ii) one or more
supplemental indentures, board resolutions or officer's certificates
establishing the Debt Securities and (iii) the Debt Securities (the forms
of each of which are filed, or will be filed, as exhibits to the
Registration Statement of which this Prospectus forms a part, or as an
exhibit to a Current Report on Form 8-K to be incorporated by reference in
this Prospectus) are merely an outline and do not purport to be complete.
Such statements make use of the terms defined in the Indenture and are
qualified in their entirety by express reference to the sections of the
Indenture cited herein.
The Debt Securities will be unsecured obligations of CP&L and, if so
provided in the Prospectus Supplement relating to a particular series of
Debt Securities, will be subordinated obligations of CP&L (the
"Subordinated Debt Securities"). Except as may otherwise be described in
the Prospectus Supplement, separate Indentures will be used for
Subordinated Debt Securities (the "Subordinated Indenture") and for Debt
Securities that are not Subordinated Debt Securities.
Reference is made to the Prospectus Supplement relating to any
particular issue of Offered Debt Securities for the following terms: (1)
the title of such Debt Securities; (2) any limit on the aggregate principal
amount of such Debt Securities or the series of which they are a part; (3)
the date or dates on which the principal of any of such Debt Securities
will be payable; (4) the rate or rates (which may be fixed or variable)
and/or the method of determination of such rate or rates at which any of
such Debt Securities will bear interest, if any, the date or dates from
which any such interest will accrue, the Interest Payment Dates on which
any such interest will be payable and the Regular Record Date for any such
interest payable on any Interest Payment Date; (5) the place or places
where (i) the principal of, premium, if any, and interest on any of such
Debt Securities will be payable, (ii) registration of transfer of such Debt
Securities may be effected, (iii) exchanges of such Debt Securities may be
effected and (iv) notices and demands to or upon CP&L in respect of such
Debt Securities may be served; the Security Registrar for such Debt
Securities and, if such is the case, that the principal of such Debt
Securities shall be payable without presentment or surrender thereof; (6)
the period or periods within which, or the date or dates on which, the
price or prices at which and the terms and conditions upon which any of
such Debt Securities may be redeemed, in whole or in part, at the option of
CP&L; (7) the obligation or obligations, if any, of CP&L to redeem or
purchase any of such Debt Securities pursuant to any sinking fund or other
mandatory redemption provisions or at the option of the Holder thereof, and
the period or periods within which, or the date or dates on which, the
price or prices at which and the terms and conditions upon which any of
such Debt Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and applicable exceptions to the requirements
of a notice of redemption in the case of mandatory redemption or redemption
at the option of the Holder; (8) the denominations in which any of such
Debt Securities will be issuable, if other than denominations of $1,000 and
any integral multiple thereof; (9) if the amount payable in respect of
principal of or any premium or interest on any of such Debt Securities may
be determined with reference to an index or other fact or event
ascertainable outside the Indenture, the manner in which such amounts will
be determined; (10) if other than the currency of the United States, the
currency or currencies, including composite currencies in which the
principal of or any premium or interest on any of such Debt Securities will
be payable; (11) if the principal of or any premium or interest on any of
such Debt Securities is to be payable, at the election of CP&L or the
Holder thereof, in a coin or currency other than in which such Debt
Securities are stated to be payable, the period or periods within which and
the terms and conditions upon which, such election is to be made; (12) if
other than the principal amount thereof, the portion of the principal
amount of any of such Debt Securities which shall be payable upon
declaration of acceleration of the Maturity thereof; (13) if the principal
of or premium or interest on such Debt Securities are to be payable, or are
to be payable at the election of CP&L or a Holder thereof, in securities or
other property, the type and amount of such securities or other property,
or the formulary or other method or other means by which such amount shall
be determined, and the period or periods within which, and the terms and
conditions upon which, any such election may be made; (14) the terms, if
any, pursuant to which such Debt Securities may be converted into or
exchanged for shares of capital stock or other securities of CP&L or any
other Person; (15) the obligations or instruments, if any, which shall be
considered to be Eligible Obligations in respect of such Debt Securities
denominated in a currency other than Dollars or in a composite currency,
and any additional or alternative provisions for the reinstatement of
CP&L's indebtedness in respect of such Debt Securities after the
satisfaction and discharge thereof; (16) if such Debt Securities are to be
issued in global form, (i) any limitations on the rights of the Holder or
Holders of such Debt Securities to transfer or exchange the same or to
obtain the registration of transfer thereof, (ii) any limitations on the
rights of the Holder or Holders thereof to obtain certificates therefor in
definitive form in lieu of temporary form and (iii) any and all other
matters incidental to such Debt Securities; (17) if such Debt Securities
are to be issuable as bearer securities; (18) any limitations on the rights
of the Holders of such Debt Securities to transfer or exchange such Debt
Securities or to obtain the registration of transfer thereof, and if a
service charge will be made for the registration of transfer or exchange of
such Debt Securities, the amount or terms thereof; (19) any exceptions to
the provisions governing payments due on legal holidays or any variations
in the definition of Business Day with respect to such Debt Securities;
(20) any addition to the Events of Default applicable to any of such Debt
Securities and any addition to the covenants of CP&L for the benefit of the
Holders of such Debt Securities; and (21) any other terms of such Debt
Securities of such series, or any Tranche thereof, not inconsistent with
the provisions of the Indenture. (Section 301).
Debt Securities may be sold at a substantial discount below their
principal amount. Certain special United States federal income tax
considerations (if any) applicable to Debt Securities sold at an original
issue discount may be described in the applicable Prospectus Supplement. In
addition, certain special United States federal income tax or other
considerations (if any) applicable to any Debt Securities which are
denominated in a currency or currency unit other than Dollars may be
described in the applicable Prospectus Supplement.
Except as may otherwise be described in the Prospectus Supplement, the
covenants contained in the Indenture would not afford Holders of Debt
Securities protection in the event of a highly-leveraged transaction
involving CP&L.
SUBORDINATION
If so provided in the applicable Prospectus Supplement, the
Subordinated Debt Securities will be subordinate and junior in right of
payment to all Senior Indebtedness of CP&L.
No payment of principal of (including redemption and sinking fund
payments), premium, if any, or interest on, the Subordinated Debt
Securities may be made if any Senior Indebtedness is not paid when due, any
applicable grace period with respect to such default has ended and such
default has not been cured or waived, or if the maturity of any Senior
Indebtedness has been accelerated because of a default. Upon any
distribution of assets of CP&L to creditors upon any dissolution,
winding-up, liquidation or reorganization, whether voluntary or involuntary
or in bankruptcy, insolvency, receivership or other proceedings, all
principal of, and premium, if any, and interest due or to become due on,
all Senior Indebtedness must be paid in full before the Holders of the
Subordinated Debt Securities are entitled to receive or retain any payment.
(Section 1502). The rights of the Holders of the Subordinated Debt
Securities will be subrogated to the rights of the Holders of Senior
Indebtedness to receive payments or distributions applicable to Senior
Indebtedness until all amounts owing on the Subordinated Debt Securities
are paid in full. (Section 1504).
The term "Senior Indebtedness" is defined in the Subordinated
Indenture to mean obligations (other than non-recourse obligations and the
indebtedness issued under the Subordinated Indenture) of, or guaranteed
or assumed by, CP&L for borrowed money (including both senior and
subordinated indebtedness for borrowed money (other than the
subordinated Debt Securities)) or for the payment of money relating to
any lease which is capitalized on the consolidated balance sheet of
CP&L and its subsidiaries in accordance with generally accepted accounting
principles as in effect from time to time, or indebtedness evidenced by
bonds, debentures, notes or other similar instruments, and in each
case, amendments, renewals, extensions, modifications and refundings
of any such indebtedness or obligations, whether existing as of the
date of the Subordinated Indenture or subsequently incurred by CP&L.
The Subordinated Indenture does not limit the aggregate amount of
Senior Indebtedness that CP&L may issue. As of January 31, 1995,
outstanding Senior Indebtedness of CP&L aggregated approximately $2.8
billion.
FORM, EXCHANGE, AND TRANSFER
Unless otherwise specified in the applicable Prospectus Supplement,
the Debt Securities of each series will be issuable only in fully
registered form without coupons and in denominations of $1,000 and any
integral multiple thereof. (Sections 201 and 302).
At the option of the Holder, subject to the terms of the Indenture and
the limitations applicable to global securities, Debt Securities of any
series will be exchangeable for other Debt Securities of the same series,
of any authorized denomination and of like tenor and aggregate principal
amount. (Section 305).
Subject to the terms of the Indenture and the limitations applicable
to global securities, Debt Securities may be presented for exchange as
provided above or for registration of transfer (duly endorsed or
accompanied by a duly executed instrument of transfer) at the office of the
Security Registrar or at the office of any transfer agent designated by
CP&L for such purpose. CP&L may designate itself the Security Registrar.
No service charge will be made for any registration of transfer or exchange
of Debt Securities, but CP&L may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Such transfer or exchange will be effected upon the Security Registrar or
such transfer agent, as the case may be, being satisfied with the documents
of title and identity of the person making the request. (Section 305).
Any transfer agent (in addition to the Security Registrar) initially
designated by CP&L for any Debt Securities will be named in the applicable
Prospectus Supplement. CP&L may at any time designate additional transfer
agents or rescind the designation of any transfer agent or approve a change
in the office through which any transfer agent acts, except that CP&L will
be required to maintain a transfer agent in each Place of Payment for the
Debt Securities of each series. (Section 602).
CP&L will not be required to (i) issue, register the transfer of, or
exchange any Debt Security or any Tranche thereof during a period beginning
at the opening of business 15 days before the day of mailing of a notice of
redemption of any such Debt Security called for redemption and ending at
the close of business on the day of such mailing or (ii) register the
transfer of or exchange any Debt Security so selected for redemption, in
whole or in part, except the unredeemed portion of any such Debt Security
being redeemed in part. (Section 305).
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement,
payment of interest on a Debt Security on any Interest Payment Date will be
made to the person in whose name such Debt Security (or one or more
Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest. (Section 307).
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of and any premium and interest on the Debt Securities of a
particular series will be payable at the office of such Paying Agent or
Paying Agents as CP&L may designate for such purpose from time to time.
Unless otherwise indicated in the applicable Prospectus Supplement, the
corporate trust office of the Trustee in New York City will be designated
as CP&L's sole Paying Agent for payments with respect to Debt Securities of
each series. Any other Paying Agents initially designated by CP&L for the
Debt Securities of a particular series will be named in the applicable
Prospectus Supplement. CP&L may at any time designate additional Paying
Agents or rescind the designation of any Paying Agent or approve a change
in the office through which any Paying Agent acts, except that CP&L will be
required to maintain a Paying Agent in each Place of Payment for the Debt
Securities of a particular series. (Section 602).
All moneys paid by CP&L to a Paying Agent for the payment of the
principal of or any premium or interest on any Debt Security which remain
unclaimed at the end of two years after such principal, premium or interest
has become due and payable will be repaid to CP&L, and the Holder of such
Debt Security thereafter may look only to CP&L for payment thereof.
(Section 603).
REDEMPTION
Any terms for the optional or mandatory redemption of Debt Securities
will be set forth in the applicable Prospectus Supplement or a supplement
thereto. Except as shall otherwise be provided in the applicable
Prospectus Supplement with respect to Debt Securities that are redeemable
at the option of the Holder, Debt Securities will be redeemable only upon
notice by mail not less than 30 nor more than 60 days prior to the date
fixed for redemption, and, if less than all the Debt Securities of a
series, or any Tranche thereof, are to be redeemed, the particular Debt
Securities to be redeemed will be selected by such method as shall be
provided for any particular series, or in the absence of any such
provision, by such method of random selection as the Security Registrar
deems fair and appropriate. (Section 403 and 404).
Any notice of redemption at the option of CP&L may state that such
redemption will be conditional upon receipt by the Paying Agent or Agents,
on or prior to the dated fixed for such redemption, of money sufficient to
pay the principal of and premium, if any, and interest, if any, on such
Debt Securities and that if such money has not been so received, such
notice will be of no force and effect and CP&L will not be required to
redeem such Debt Securities. (Section 404).
CONSOLIDATION, MERGER, AND SALE OF ASSETS
CP&L may not consolidate with or merge into any other person or
convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless (i) the corporation formed by such
consolidation or into which CP&L is merged or the Person which acquires by
conveyance or transfer, or which leases, the property and assets of CP&L
substantially as an entirety shall be a Person organized and validly
existing under the laws of any domestic jurisdiction and such Person
expressly assumes CP&L's obligations on the Debt Securities and under the
Indenture, (ii) immediately after giving effect to the transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have occurred and be
continuing, and (iii) CP&L will have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel as provided in the Indenture.
(Section 1101).
EVENTS OF DEFAULT
Each of the following will constitute an Event of Default under the
Indenture with respect to Debt Securities of any series: (a) failure to pay
any interest on any Debt Securities of such series within 60 days after the
same becomes due and payable; (b) failure to pay principal or premium, if
any, on any Debt Security of such series within three Business Days after
the same becomes due and payable; (c) failure to perform or breach of any
other covenant or warranty of CP&L in the Indenture (other than a covenant
or warranty of CP&L in the Indenture solely for the benefit of one or more
series of Debt Securities other than such series) for 60 days after written
notice to CP&L by the Trustee, or to CP&L and the Trustee by the Holders of
at least 33% in principal amount of the Debt Securities of such series
outstanding under the Indenture as provided in the Indenture; (d) certain
events of bankruptcy, insolvency or reorganization; and (e) any other Event
of Default specified in the applicable Prospectus Supplement with respect
to Debt Securities of particular series. (Section 801).
No Event of Default with respect to the Debt Securities necessarily
constitutes an Event of Default with respect to the Debt Securities of any
other series issued under the Indenture.
If an Event of Default with respect to any series of Debt Securities
occurs and is continuing, then either the Trustee or the Holders of not
less than 33% in principal amount of the Outstanding Debt Securities of
such series may declare the principal amount (or if the Debt Securities of
such series are discount notes or similar Debt Securities, such portion of
the principal amount as may be specified in the applicable Prospectus
Supplement) of all of the Debt Securities of such series to be due and
payable immediately; provided, however, that if an Event of Default occurs
and is continuing with respect to more than one series of Debt Securities,
the Trustee or the Holders of not less than 33% in aggregate principal
amount of the Outstanding Debt Securities of all such series, considered as
one class, may make such declaration of acceleration and not the Holders of
the Debt Securities of any one of such series.
At any time after the declaration of acceleration with respect to the
Debt Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained, the Event or Events of
Default giving rise to such declaration of acceleration will, without
further act, be deemed to have been waived, and such declaration and its
consequences will, without further act, be deemed to have been rescinded
and annulled, if
(a) CP&L has paid or deposited with the Trustee a sum sufficient to
pay
(1) all overdue interest on all Debt Securities of such series;
(2) the principal of and premium, if any, on any Debt Securities
of such series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed therefor
in such Debt Securities;
(3) interest upon overdue interest at the rate or rates
prescribed therefor in such Debt Securities, to the extent that payment of
such interest is lawful; and
(4) all amounts due to the Trustee under the Indenture;
(b) any other Event or Events of Default with respect to the Debt
Securities of such series, other than the nonpayment of the principal of
the Debt Securities of such series which has become due solely by such
declaration of acceleration, have been cured or waived as provided in the
Indenture. (Section 802).
Subject to the provisions of the Indenture relating to the duties of
the Trustee in case an Event of Default shall occur and be continuing, the
Trustee will be under no obligation to exercise any of its rights or powers
under the Indenture at the request or direction of any of the Holders,
unless such Holders shall have offered to the Trustee reasonable indemnity.
(Section 903). Subject to such provisions for the indemnification of the
Trustee, the Holders of a majority in principal amount of the Outstanding
Debt Securities of any series will have the right to direct the time,
method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee,
with respect to the Debt Securities of that series. (Section 812).
No Holder of a Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture, or for the
appointment of a receiver or a trustee, or for any other remedy thereunder,
unless (i) such Holder has previously given to the Trustee written notice
of a continuing Event of Default with respect to the Debt Securities of
such series, (ii) the Holders of not less than a majority in aggregate
principal amount of the Outstanding Debt Securities of such series have
made written request to the Trustee, and such Holder or Holders have
offered reasonable indemnity to the Trustee to institute such proceeding as
trustee and (iii) the Trustee has failed to institute such proceeding, and
has not received from the Holders of a majority in aggregate principal
amount of the Outstanding Debt Securities of that series a direction
inconsistent with such request, within 60 days after such notice, request
and offer. (Section 807). However, such limitations do not apply to a
suit instituted by a Holder of a Debt Security for the enforcement of
payment of the principal of or any premium or interest on such Debt
Security on or after the applicable due date specified in such Debt
Security. (Section 808).
CP&L will be required to furnish to the Trustee annually a statement
by an appropriate officer as to such officer's knowledge of CP&L's
compliance with all conditions and covenants under the Indenture, such
compliance to be determined without regard to any period of grace or
requirement of notice under the Indenture. (Section 606).
MODIFICATION AND WAIVER
Without the consent of any Holder of Debt Securities, CP&L and the
Trustee may enter into one or more supplemental indentures for any of the
following purposes: (a) to evidence the assumption by any permitted
successor to CP&L of the covenants of CP&L in the Indenture and the Debt
Securities; or (b) to add one or more covenants of CP&L or other provisions
for the benefit of the Holders of all or any series of Outstanding Debt
Securities or to surrender any right or power conferred upon CP&L by the
Indenture; or (c) to add any additional Events of Default with respect to
all or any series of Outstanding Debt Securities; or (d) to change or
eliminate any provision of the Indenture or to add any new provision to the
Indenture, provided that if such change, elimination or addition will
adversely affect the interests of the Holders of Debt Securities of any
series in any material respect, such change, elimination or addition will
become effective with respect to such series only when there is no Debt
Security of such series remaining Outstanding under the Indenture; or (e)
to provide collateral security for the Debt Securities; or (f) to establish
the form or terms of Debt Securities of any series as permitted by the
Indenture; or (g) to evidence and provide for the acceptance of appointment
of a successor Trustee under the Indenture with respect to the Debt
Securities of one or more series and to add to or change any of the
provisions of the Indenture as shall be necessary to provide for or to
facilitate the administration of the trusts under the Indenture by more
than one trustee; or (h) to provide for the procedures required to permit
the utilization of a noncertificated system of registration for any series
of Debt Securities; or (i) to change any place where (1) the principal of
and premium, if any, and interest, if any, on any Debt Securities shall be
payable, (2) any Debt Securities may be surrendered for registration of
transfer or exchange and (3) notices and demands to or upon CP&L in respect
of Debt Securities and the Indenture may be served; or (j) to cure any
ambiguity or inconsistency or to make or change any other provisions with
respect to matters and questions arising under the Indenture, provided such
changes or additions shall not adversely affect the interests of the
Holders of Debt Securities of any series in any material respect. (Section
1201).
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Debt Securities of any series may waive compliance by
CP&L with certain restrictive provisions of the Indenture. (Section 607).
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series may waive any past default under the Indenture,
except a default in the payment of principal, premium, or interest and
certain covenants and provisions of the Indenture that cannot be modified
or be amended without the consent of the Holder of each Outstanding Debt
Security of such series affected. (Section 813).
Without limiting the generality of the foregoing, if the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), is amended
after the date of the Indenture in such a way as to require changes to the
Indenture or the incorporation therein of additional provisions or so as to
permit changes to, or the elimination of, provisions which, at the date of
the Indenture or at any time thereafter, were required by the Trust
Indenture Act to be contained in the Indenture, the Indenture will be
deemed to have been amended so as to conform to such amendment or to effect
such changes or elimination, and CP&L and the Trustee may, without the
consent of any Holders, enter into one or more supplemental indentures to
evidence or effect such amendment. (Section 1201.)
Except as provided above, the consent of the Holders of not less than
a majority in aggregate principal amount of the Debt Securities of all
series then Outstanding, considered as one class, is required for the
purpose of adding any provisions to, or changing in any manner, or
eliminating any of the provisions of, the Indenture pursuant to one or more
supplemental indentures; provided, however, that if less than all of the
series of Debt Securities Outstanding are directly affected by a proposed
supplemental indenture, then the consent only of the Holders of a majority
in aggregate principal amount of Outstanding Debt Securities of all series
so directly affected, considered as one class, will be required; and
provided, further, that if the Debt Securities of any series have been
issued in more than one Tranche and if the proposed supplemental indenture
directly affects the rights of the Holders of one or more, but less than
all, such Tranches, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of all
Tranches so directly affected, considered as one class, will be required;
and provided further, that no such amendment or modification may (a)
change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Debt Security, or reduce the principal
amount thereof or the rate of interest thereon (or the amount of any
installment of interest thereon) or change the method of calculating such
rate or reduce any premium payable upon the redemption thereof, or reduce
the amount of the principal of any Discount Security that would be due and
payable upon a declaration of acceleration of Maturity or change the coin
or currency (or other property) in which any Debt Security or any premium
or the interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity of
any Debt Security (or, in the case of redemption, on or after the
redemption date) without, in any such case, the consent of the Holder of
such Debt Security, (b) reduce the percentage in principal amount of the
Outstanding Debt Securities of any series, or any Tranche thereof, the
consent of the Holders of which is required for any such supplemental
indenture, or the consent of the Holders of which is required for any
waiver of compliance with any provision of the Indenture or any default
thereunder and its consequences, or reduce the requirements for quorum or
voting, without, in any such case, the consent of the Holder of each
Outstanding Debt Security of such series or Tranche, or (c) modify certain
of the provisions of the Indenture relating to supplemental indentures,
waivers of certain covenants and waivers of past defaults with respect to
the Debt Securities of any series, or any Tranche thereof, without the
consent of the Holder of each Outstanding Debt Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of the Indenture which has expressly been included solely for the
benefit of one or more particular series of Debt Securities or one or more
Tranches thereof, or modifies the rights of the Holders of Debt Securities
of such series or Tranches with respect to such covenant or other
provision, will be deemed not to affect the rights under the Indenture of
the Holders of the Debt Securities of any other series or Tranche. (See
Section 1202.)
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given or
taken any direction, notice, consent, waiver, or other action under the
Indenture as of any date, (i) Debt Securities owned by CP&L or any other
obligor upon the Securities or any Affiliate of CP&L or of such other
obligor (unless CP&L, such Affiliate or such obligor owns all Securities
Outstanding under this Indenture, or all Outstanding Securities of each
such series and each such Tranche, as the case may be, determined without
regard to this clause (i)) shall be disregarded and deemed not to be
Outstanding; (ii) the principal amount of a Discount Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof as
provided in the Indenture; and (iii) the principal amount of a Debt
Security denominated in one or more foreign currencies or a composite
currency that will be deemed to be Outstanding will be the Dollar
equivalent, determined as of such date in the manner prescribed for such
Debt Security, of the principal amount of such Debt Security (or, in the
case of a Debt Security described in clause (ii) above, of the amount
described in such clause). (Section 101).
If CP&L shall solicit from Holders any request, demand, authorization,
direction, notice, consent, election, waiver or other Act, CP&L may, at its
option, by Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, election, waiver or other Act,
but CP&L shall have no obligation to do so. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent,
election, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on the record
date shall be deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of the Outstanding Securities have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of the record date. Any
request, demand, authorization, direction, notice, consent, election,
waiver or other Act of a Holder shall bind every future Holder of the same
Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon
such Security. (Section 104).
DEFEASANCE
Unless otherwise indicated in the applicable Prospectus Supplement,
any Debt Security, or any portion of the principal amount thereof, will be
deemed to have been paid for purposes of the Indenture, and, at CP&L's
election, the entire indebtedness of CP&L in respect thereof will be deemed
to have been satisfied and discharged, if there has been irrevocably
deposited with the Trustee or any Paying Agent (other than CP&L), in trust:
(a) money in an amount which will be sufficient, or (b) Eligible
Obligations (as described below), which do not contain provisions
permitting the redemption or other prepayment thereof at the option of the
issuer thereof, the principal of and the interest on which when due,
without any regard to reinvestment thereof, will provide monies which,
together with money, if any, deposited with or held by the Trustee or such
Paying Agent, will be sufficient, or (c) a combination of (a) and (b) which
will be sufficient, to pay when due the principal of and premium, if any,
and interest, if any, due and to become due on such Debt Security or
Securities or portions thereof. (Section 701). For this purpose, unless
otherwise indicated in the applicable Prospectus Supplement, Eligible
Obligations include direct obligations of, or obligations
unconditionally guaranteed by, the United States, entitled to the benefit
of the full faith and credit thereof, and certificates, depositary
receipts or other instruments which evidence a direct ownership interest
in such obligations or in any specific interest or principal payments
due in respect thereof.
RESIGNATION OF TRUSTEE
The Trustee may resign at any time by giving written notice thereof to
CP&L or may be removed at any time by Act of the Holders of a majority in
principal amount of Debt Securities then Outstanding delivered to the
Trustee and CP&L. No resignation or removal of the Trustee and no
appointment of a successor trustee will become effective until the
acceptance of appointment by a successor trustee in accordance with the
requirements of the Indenture. So long as no Event of Default or event
which, after notice or lapse of time, or both, would become an Event of
Default has occurred and is continuing and except with respect to a Trustee
appointed by Act of the Holders, if CP&L has delivered to the Trustee a
resolution of its Board of Directors appointing a successor trustee and
such successor has accepted such appointment in accordance with the terms
of the Indenture, the Trustee will be deemed to have resigned and the
successor will be deemed to have been appointed as trustee in accordance
with the Indenture. (Section 910).
NOTICES
Notices to Holders of Debt Securities will be given by mail to the
addresses of such Holders as they may appear in the Security Register.
(Section 106).
TITLE
CP&L, the Trustee, and any agent of CP&L or the Trustee may treat the
Person in whose name a Debt Security is registered as the absolute owner
thereof (whether or not such Debt Security may be overdue) for the purpose
of making payment and for all other purposes. (Section 308).
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and
construed in accordance with, the law of the State of New York. (Section
112).
REGARDING THE TRUSTEE
The Trustee under the Indenture is Bankers Trust Company. Bankers
Trust Company is the indenture trustee under a certain indenture of trust
entered into in connection with a lease financing in which CP&L is the
lessee of eleven turbine generator units and related property.
GLOBAL SECURITIES
Some or all of the New Bonds or Debt Securities of any series may be
represented, in whole or in part, by one or more global securities (each, a
"Global Security") which will have an aggregate principal amount equal to
that of the New Bonds or Debt Securities represented thereby. Each Global
Security will be registered in the name of a depositary (the "Depositary")
or a nominee thereof identified in the applicable Prospectus Supplement,
will be deposited with such Depositary or nominee or a custodian therefor
and will bear a legend regarding the restrictions on exchanges and
registration of transfer thereof referred to below and any such other
matters as may be provided for pursuant to the Mortgage or Indenture.
As long as the Depositary, or its nominee, is the registered holder of
a Global Security, the Depositary or such nominee, as the case may be, will
be considered the sole owner and holder of such Global Security and the
Securities represented thereby for all purposes under the Securities and
the Mortgage and Indenture. Except in limited circumstances, owners of
beneficial interests in a Global Security will not be entitled to have such
Global Security or any Securities represented thereby registered in their
names, will not receive or be entitled to receive physical delivery of
certificated Securities in exchange therefor and will not be considered to
be the owners or holders of such Global Security or any Securities
represented thereby for any purpose under the Securities or the Mortgage or
Indenture. All payments of principal of and any premium and interest on a
Global Security will be made to the Depositary or its nominee, as the case
may be, as the Holder thereof. The laws of some jurisdictions require that
certain purchasers of securities take physical delivery of such securities
in definitive form. These laws may impair the ability to transfer
beneficial interests in a Global Security.
Ownership of beneficial interests in a Global Security will be limited
to institutions that have accounts with the Depositary or its nominee
("participants") and to persons that may hold beneficial interests through
participants. In connection with the issuance of any Global Security, the
Depositary will credit, on its book-entry registration and transfer system,
the respective principal amounts of Securities represented by the Global
Security to the accounts of its participants. Ownership of beneficial
interests in a Global Security will be shown only on, and the transfer of
those ownership interests will be effected only through, records maintained
by the Depositary (with respect to participants' interests) or any such
participant (with respect to interests of persons held by such participants
on their behalf). Payments, transfers, exchanges, and others matters
relating to beneficial interests in a Global Security may be subject to
various policies and procedures adopted by the Depositary from time to
time. None of CP&L, the Trustees under the Mortgage or the Trustee under
the Indenture, or any agents of each of the foregoing, will have any
responsibility or liability for any aspect of the Depositary's or any
participant's records relating to, or for payments made on account of,
beneficial interests in a Global Security, or for maintaining, supervising,
or reviewing any records relating to such beneficial interests.
EXPERTS AND LEGALITY
The financial statements and the related financial statement schedules
incorporated in this Prospectus by reference from CP&L's most recent Annual
Report on Form 10-K have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report, which is incorporated herein by
reference, and have been so incorporated in reliance upon the report of
such firm given upon their authority as experts in accounting and auditing.
The statements made as to matters of law and legal conclusions in the
documents incorporated by reference herein and as set forth under
"Description of New Bonds" and "Description of Debt Securities" herein have
been reviewed by Richard E. Jones, Esq., Senior Vice President, General
Counsel and Secretary for CP&L, and are set forth in reliance upon his
opinion as an expert.
The legality of the securities offered hereby will be passed upon for
CP&L by Richard E. Jones, Esq., Senior Vice President, General Counsel and
Secretary of CP&L, Raleigh, North Carolina, and by Reid & Priest LLP, 40
West 57th Street, New York, New York, counsel to CP&L, and for any
underwriter, dealer or agent by Winthrop, Stimson, Putnam & Roberts, One
Battery Park Plaza, New York, New York. However, all matters pertaining to
the organization of CP&L, titles and local law will be passed upon only by
Richard E. Jones, Esq., who may rely as to all matters of South Carolina
law on the opinion of Paulling & James, Darlington, South Carolina. As of
January 31, 1995, Richard E. Jones, Esq., owned 10,074 shares of CP&L's
Common Stock. Mr. Jones is acquiring additional shares of CP&L's Common
Stock at regular intervals as a participant in CP&L's Stock
Purchase-Savings Plan.
PLAN OF DISTRIBUTION
CP&L may sell the Securities in any of three ways: (i) through
underwriters or dealers; (ii) directly to a limited number of institutional
purchasers or to a single purchaser; or (iii) through agents. The
Prospectus Supplement with respect to the Offered Securities sets forth the
terms of the offering of the Offered Securities, including the name or
names of any underwriters, dealers or agents, the purchase price of the
Offered Securities and the net proceeds to CP&L from such sale, any
underwriting discounts and other items constituting underwriters'
compensation, any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers. Any initial public
offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
If underwriters are used in the sale, such Securities will be acquired
by the underwriters for their own account and may be resold from time to
time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of
sale. The Securities may be offered through dealers or underwriters.
Unless otherwise set forth in the Prospectus Supplement, the obligations of
any underwriter or underwriters to purchase the Offered Securities will be
subject to certain conditions precedent and such underwriter or
underwriters will be obligated to purchase all the Offered Securities if
any are purchased, except that, in certain cases involving a default by one
or more underwriters, less than all of the Offered Securities may be
purchased.
Offered Securities may be sold directly by CP&L or through agents
designated by CP&L from time to time. Any agent involved in the offer or
sale of the Offered Securities in respect of which this Prospectus is
delivered will be named, and any commissions payable by CP&L to such agent
will be set forth, in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a
best efforts basis for the period of its appointment.
If so indicated in the Prospectus Supplement, CP&L will authorize
agents, underwriters or dealers to solicit offers by certain specified
institutions to purchase Offered Securities from CP&L at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date
in the future. Such contracts will be subject to those conditions set
forth in the Prospectus Supplement, and the Prospectus Supplement will set
forth the commission payable for solicitation of such contracts.
Agents and underwriters may be entitled under agreements entered into
with CP&L to indemnification by CP&L against certain civil liabilities,
including liabilities under the Securities Act of 1933, as amended.
<PAGE>
No dealer, salesman or other person has been authorized to give any
information or to make any representation other than those contained in
this Prospectus or, with respect to particular Offered Securities, the
Prospectus Supplement relating thereto, and if given or made, such
information or representations must not be relied upon as having been
authorized by CP&L or any underwriter, dealer or agent. Neither the
delivery of this Prospectus or any Prospectus Supplement nor any sale made
hereunder or thereunder shall under any circumstances create an implication
that the information contained herein or therein is correct as of any time
subsequent to the date of such information. This Prospectus and any
Prospectus Supplement do not constitute an offer or solicitation by anyone
in any jurisdiction in which such offer or solicitation is not authorized
or in which the person making such offer or solicitation is not qualified
to do so or to anyone to whom it is unlawful to make such offer or
solicitation.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
ESTIMATED
ITEM TOTAL
---- ---------
Securities and Exchange Commission filing fee.... $86,207
Rating agencies' fees............................ 200,000
Trustees' fees................................... 105,000
Counsels' fees................................... 310,000
Auditor's fees................................... 35,000
Printing of Registration Statement, prospectus,
exhibits, etc.................................. 30,000
Printing of securities........................... 20,000
Blue Sky fees.................................... 20,000
Miscellaneous.................................... 23,793
-------
$830,000
========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 55-8-51 through 55-8-57 of the General Statutes of North
Carolina and the Charter and By-Laws of CP&L provide for indemnification of
the registrant's directors and officers in a variety of circumstances,
which may include liabilities under the Securities Act of 1933, as amended.
CP&L has insurance covering its expenditures which might arise in
connection with the lawful indemnification of its directors and officers
for their liabilities and expenses. Officers and directors of CP&L also
have insurance which insures them against certain liabilities and expenses.
ITEM 16. EXHIBITS.
1(a) - Form of Underwriting Agreement for First Mortgage
Bonds.
1(b) - Form of Underwriting Agreement for Debt Securities.
1(c) - Form of Sales Agency/Distribution Agreement
*4(a) - Restated Charter of CP&L, dated May 22, 1980 (filed
as Exhibit 2(a)(1), File No. 2-64193).
*4(b)(1) - Amendment, dated May 10, 1989, to Restated
Charter of CP&L (filed as Exhibit 3(b), File No. 33-
33431).
*4(b)(2) - Amendment, dated May 27, 1992, to Restated Charter
of CP&L (filed as Exhibit 4(b)(2), File No. 33-
55060).
*4(c) - By-laws of CP&L, as amended December 12, 1990 (filed
as Exhibit 3(c), File No. 33-38298).
*4(d) - Mortgage and Deed of Trust dated as of May 1, 1940
between CP&L and The Bank of New York (formerly
Irving Trust Company) and Frederick G. Herbst (W.T.
Cunningham, Successor), Trustees and the First
through Fifth Supplemental Indentures thereto (filed
as Exhibit 2(b), File No. 2-64189); and the Sixth
through Sixty-first Supplemental Indentures (filed
as Exhibit 2(b)-5, File No. 2-16210; Exhibit 2(b)-6,
File No. 2-16210; Exhibit 4(b)-8, File No. 2-19118;
Exhibit 4(b)-2, File No. 2-22439; Exhibit 4(b)-2,
File No. 2-24624; Exhibit 2(c), File No. 2-27297;
Exhibit 2(c), File No. 2-30172; Exhibit 2(c), File
No. 2-35694; Exhibit 2(c), File No. 2-37505; Exhibit
2(c), File No. 2-39002; Exhibit 2(c), File No. 2-
41738; Exhibit 2(c), File No. 2-43439; Exhibit 2(c),
File No. 2-47751; Exhibit 2(c), File No. 2-49347;
Exhibit 2(c), File No. 2-53113; Exhibit 2(d), File
No. 2-53113; Exhibit 2(c), File No. 2-59511; Exhibit
2(c), File No. 2-61611; Exhibit 2(d), File No. 2-
64189; Exhibit 2(c), File No. 2-65514; Exhibits 2(c)
and 2(d), File No. 2-66851; Exhibits 4(b)-1, 4(b)-2
and 4(b)-3, File No. 2-81299; Exhibits 4(c)-1
through 4(c)-8, File No. 2-95505; Exhibits 4(b)
through 4(h), File No. 33-25560; Exhibits 4(b) and
4(c), File No. 33-33431; Exhibits 4(b) and 4(c),
File No. 33-38298; Exhibits 4(h) and 4(i), File No.
33-42869; Exhibits 4(e)-(g), File No. 33-48607;
Exhibits 4(e) and 4(f), File No. 33-55060; Exhibits
4(e) and 4(f), File No. 33-60014; Exhibits 4(a) and
4(b) to Post-Effective Amendment No. 1, File No. 33-
38349; and Exhibit 4(e), File No. 33-50597).
4(e) - Sixty-second Supplemental Indenture, dated as of
January 15, 1994.
4(f) - Sixty-third Supplemental Indenture, dated as of May
1, 1994.
4(g) - Form of Supplemental Indenture relating to New
Bonds.
4(h) - Form of Indenture relating to Debt Securities.
5(a) - Opinion of Richard E. Jones, Esq., Senior Vice
President, General Counsel and Secretary for CP&L.
5(b) - Opinion of Reid & Priest LLP.
12 - Computation of Ratio of Earnings to Fixed Charges.
23(a) - Consent of Deloitte & Touche LLP.
23(b) - The consents of Richard E. Jones, Esq. and Reid &
Priest LLP are contained in their opinions filed as
Exhibits 5(a) and 5(b).
24 - The Power of Attorney is contained on the signature
page of this Registration Statement.
25(a) - Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939 of The Bank of New York, as
Trustee under the Mortgage relating to the New
Bonds.
25(b) - Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939 of Bankers Trust Company, as
Trustee under the Indenture relating to the Debt
Securities.
25(c) - Form T-2 Statement of Eligibility under the Trust
Indenture Act of 1939 of W.T. Cunningham, as Trustee
under the Mortgage relating to the New Bonds.
--------------
* Incorporated herein by reference as indicated.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement: (i)
to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933; (ii) to reflect in the Prospectus any facts or
events arising after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in this Registration Statement; or (iii) to
include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement; provided, however, that the registrant need not file a
post-effective amendment to include the information required to be
included by subsection (i) or (ii) if such information is contained in
periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange
Act of 1934 that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating
to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described
under Item 15 above, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
<PAGE>
POWER OF ATTORNEY
Each director and/or officer of the issuer whose signature appears
below hereby appoints Sherwood H. Smith, Jr., Richard E. Jones and Robert
J. Reger, Jr., the Agents for Service named in this registration statement,
and each of them severally, as his attorney-in-fact to sign in his name and
behalf, in any and all capacities stated below, and to file with the
Commission, any and all amendments, including post-effective amendments, to
this registration statement, and the issuer hereby also appoints each such
Agent for Service as its attorney-in-fact with like authority to sign and
file any such amendments in its name and behalf.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Raleigh, State of North Carolina,
on the 24th day of February, 1995.
CAROLINA POWER & LIGHT COMPANY
/s/ Sherwood H. Smith, Jr.
...................................
(Sherwood H. Smith, Jr., Chairman
and Chief Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Sherwood H. Smith, Jr.
........................... Principal Executive February 24, 1995
(Sherwood H. Smith, Jr., Officer and Director
Chairman and Chief
Executive Officer)
/s/ Charles D. Barham, Jr.
........................... Principal Financial February 24, 1995
(Charles D. Barham, Jr., Officer and Director
Executive Vice President
and Chief Financial
Officer)
/s/ Paul S. Bradshaw
........................... Principal Accounting February 24, 1995
(Paul S. Bradshaw, Officer
Vice President and
Controller)
/s/ Edwin B. Borden
........................... Director February 24, 1995
(Edwin B. Borden)
/s/ Felton J. Capel
........................... Director February 24, 1995
(Felton J. Capel)
/s/ William Cavanaugh III
........................... Director February 24, 1995
(William Cavanaugh III)
/s/ George H.V. Cecil
........................... Director February 24, 1995
(George H.V. Cecil)
/s/ Charles W. Coker
........................... Director February 24, 1995
(Charles W. Coker)
/s/ Richard L. Daugherty
........................... Director February 24, 1995
(Richard L. Daugherty)
/s/ William E. Graham, Jr.
........................... Director February 24, 1995
(William E. Graham, Jr.)
/s/ Gordon C. Hurlbert
........................... Director February 24, 1995
(Gordon C. Hurlbert)
/s/ J.R. Bryan Jackson
........................... Director February 24, 1995
(J.R. Bryan Jackson)
........................... Director February 24, 1995
(Robert L. Jones)
/s/ Estell C. Lee
........................... Director February 24, 1995
(Estell C. Lee)
/s/ J. Tylee Wilson
........................... Director February 24, 1995
(J. Tylee Wilson)
<PAGE>
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Description Page
------- ----------- ------------
1(a) - Form of Underwriting Agreement for First Mortgage Bonds.
1(b) - Form of Underwriting Agreement for Debt Securities.
1(c) - Form of Sales Agency/Distribution Agreement
*4(a) - Restated Charter of CP&L, dated May 22, 1980 (filed as
Exhibit 2(a)(1), File No. 2-64193).
*4(b)(1) - Amendment, dated May 10, 1989, to Restated Charter of
CP&L (filed as Exhibit 3(b), File No. 33-33431).
*4(b)(2) - Amendment, dated May 27, 1992, to Restated Charter of CP&L
(filed as Exhibit 4(b)(2), File No. 33-55060).
*4(c) - By-laws of CP&L, as amended December 12, 1990 (filed as
Exhibit 3(c), File No. 33-38298).
*4(d) - Mortgage and Deed of Trust dated as of May 1, 1940 between
CP&L and The Bank of New York (formerly Irving Trust
Company) and Frederick G. Herbst (W.T. Cunningham,
Successor), Trustees and the First through Fifth
Supplemental Indentures thereto (filed as Exhibit 2(b),
File No. 2-64189); and the Sixth through Sixty-first
Supplemental Indentures (filed as Exhibit 2(b)-5, File No.
2-16210; Exhibit 2(b)-6, File No. 2-16210; Exhibit 4(b)-8,
File No. 2-19118; Exhibit 4(b)-2, File No. 2-22439;
Exhibit 4(b)-2, File No. 2-24624; Exhibit 2(c), File No.
2-27297; Exhibit 2(c), File No. 2-30172; Exhibit 2(c),
File No. 2-35694; Exhibit 2(c), File No. 2-37505; Exhibit
2(c), File No. 2-39002; Exhibit 2(c), File No. 2-41738;
Exhibit 2(c), File No. 2-43439; Exhibit 2(c), File No. 2-
47751; Exhibit 2(c), File No. 2-49347; Exhibit 2(c), File
No. 2-53113; Exhibit 2(d), File No. 2-53113; Exhibit 2(c),
File No. 2-59511; Exhibit 2(c), File No. 2-61611; Exhibit
2(d), File No. 2-64189; Exhibit 2(c), File No. 2-65514;
Exhibits 2(c) and 2(d), File No. 2-66851; Exhibits 4(b)-1,
4(b)-2 and 4(b)-3, File No. 2-81299; Exhibits 4(c)-1
through 4(c)-8, File No. 2-95505; Exhibits 4(b) through
4(h), File No. 33-25560; Exhibits 4(b) and 4(c), File No.
33-33431; Exhibits 4(b) and 4(c), File No. 33-38298;
Exhibits 4(h) and 4(i), File No. 33-42869; Exhibits 4(e)-
(g), File No. 33-48607; Exhibits 4(e) and 4(f), File No.
33-55060; Exhibits 4(e) and 4(f), File No. 33-60014;
Exhibits 4(a) and 4(b) to Post-Effective Amendment No. 1,
File No. 33-38349; and Exhibit 4(e), File No. 33-50597).
4(e) - Sixty-second Supplemental Indenture, dated as of January
15, 1994.
4(f) - Sixty-third Supplemental Indenture, dated as of May 1,
1994.
4(g) - Form of Supplemental Indenture relating to New Bonds.
4(h) - Form of Indenture relating to Debt Securities.
5(a) - Opinion of Richard E. Jones, Esq., Senior Vice President,
General Counsel and Secretary for CP&L.
5(b) - Opinion of Reid & Priest LLP.
12 - Computation of Ratio of Earnings to Fixed Charges.
23(a) - Consent of Deloitte & Touche LLP.
23(b) - The consents of Richard E. Jones, Esq. and Reid & Priest
LLP are contained in their opinions filed as Exhibits 5(a)
and 5(b).
24 - The Power of Attorney is contained on the signature page
of this Registration Statement.
25(a) - Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939 of The Bank of New York, as Trustee
under the Mortgage relating to the New Bonds.
25(b) - Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939 of Bankers Trust Company, as Trustee
under the Indenture relating to the Debt Securities.
25(c) - Form T-2 Statement of Eligibility under the Trust
Indenture Act of 1939 of W.T. Cunningham, as Trustee under
the Mortgage relating to the New Bonds.
--------------
* Incorporated herein by reference as indicated.
Exhibit 1(a)
CAROLINA POWER & LIGHT COMPANY
First Mortgage Bonds
UNDERWRITING AGREEMENT
----------------------
_________ __ 199_
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
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 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
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-_____), including a [combined] prospectus ("registration
statement No. 33-_________"), 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-
______ 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-_____)("registration statement No. 33-_____"), which was declared
effective by the Commission on ______, for the registration of
$___,000,000 principal amount of First Mortgage Bonds, of which an
aggregate of $ _______ principal amount has been previously issued.]
Registration statement No. 33-_____, as amended to the date
hereof,[together with registration statement No. 33- _____ 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 registration
statement No. 33-______, 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 securities of the Company
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 and the trustee under the Indenture, dated as of
____________, 1995, from the Company to Bankers Trust Company,
relating to other debt securities of the Company (the "Indenture").
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 LLP, 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,
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 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.
--------------------------------------------------
(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 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-_____ [and one fully executed copy or one conformed copy certified
by an officer of the Company, of registration statement No. 33-_____,
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 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 any 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 under the Mortgage, 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
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 being 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 LLP, 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 Tidewater 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 ___________ 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; and
(viii) The issuance and sale of the Securities have been
duly authorized by all necessary corporate action on 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 LLP 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 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 the trustee under the
Indenture, 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) filed after the execution of this Agreement 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.
<PAGE>
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____________________________
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.
By __________________________
<PAGE>
SCHEDULE I
Underwriting Agreement dated _______ __, 199_
Registration Statements No. 33-_________and No. 33-____
Representative and Address:
Securities:
Designation: First Mortgage Bonds,
______% Series due _____, ___
Principal Amount: $___,000,000
Supplemental Indenture dated as of ______ ___, 199__
Date of Maturity: _________________
Interest Rate: ___% per annum, payable _____ and _____
of each year, commencing _________, 199__.
Purchase Price: ___% of the principal amount thereof,
plus accrued interest from _______ __, 199__ to the date of
payment and delivery.
Public Offering Price: ___ % of the principal amount thereof,
plus accrued interest from _______ __, 199__ to the date of
payment and delivery.
Closing Date and Location:
________ __, 199_
Reid & Priest LLP
40 West 57th Street
New York, N.Y. 10019
<PAGE>
SCHEDULE II
Underwriters Principal Amount
------------ ----------------
$
----
$
----
$
----
TOTAL................$
=========
Exhibit 1(b)
CAROLINA POWER & LIGHT COMPANY
Debt Securities
UNDERWRITING AGREEMENT
----------------------
________ _____, 199_
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
-------------------------------
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
-------------------------
sell its unsecured debentures, notes or other evidences of indebtedness of
the designation, with the terms and in the amount specified in Schedule I
hereto (the "Securities"), under its Indenture, dated as of February __,
1995, with Bankers Trust Company, as Trustee, as it will be further
supplemented by a Supplemental Indenture, resolution of the Board of
Directors of the Company or certificate of an officer of the Company
relating to the Securities (any such Supplemental Indenture, resolution or
certificate hereinafter referred to as the "Supplemental Indenture"), in
substantially the forms heretofore delivered to the Representative, said
Indenture as to be supplemented by the Supplemental Indenture being
hereinafter referred to as the "Indenture".
3. Representations and Warranties of the Company. The Company
---------------------------------------------
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-__________), including a [combined] prospectus ("registration
statement No. 33-_________"), for the registration of the Securities
under the Securities Act of 1933, as amended (the "Securities Act"),
and the qualification of the Indenture under the Trust Indenture Act
of 1939, as amended (the "1939 Act"). Registration statement No.
33-__________ has been declared effective by the Commission and the
Indenture has been qualified under the 1939 Act. [The Company has
also filed with the Commission a registration statement on Form S-3
(No. 33-_____) ("registration statement No. 33-_____"), which was
declared effective by the Commission on _________, for the
registration of $___,000,000 principal amount of First Mortgage Bonds
and Debt Securities, of which an aggregate of $__________ principal
amount has been previously issued.] Registration statement
No. 33-__________, as amended to the date hereof, [together with
registration statement No. 33-__________ 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 registration statement No. 33-__________,
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 securities of the Company 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 Indenture, 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 Company's First Mortgage Bond Mortgage and the Trustee under
the Indenture. 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 LLP, 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,
-----------------
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 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.
--------------------------------------------------
(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 ________________________________________
___________________, 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 __________________.
(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 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-_______ [and one fully executed copy or one conformed copy
certified by an officer of the Company, of registration statement No.
33-_____, 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 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, [and] (vi) the printing and delivery to
the Underwriters of copies of the Blue Sky Survey and any Legality
Memorandum, and (vii) the preparation, execution and, if required, filing
by the Company of the Supplemental Indenture relating to the Securities
(such filing to be promptly made, after execution and delivery of the
Supplemental Indenture to the Trustee under the Indenture); and the Company
will pay all taxes, if any (but not including any transfer taxes), on the
issue of the Securities and, if required, the filing of the Supplemental
Indenture.
9. Conditions of Underwriters' Obligations. The several obligations
---------------------------------------
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 being 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 LLP, 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 Indenture 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 agreement 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 Indenture 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
creditors' rights and general equitable principles, and are
entitled to the benefit afforded by the Indenture;
(iv) The statements made in the Prospectus under the captions
"Description of Debt Securities" [and "Certain Terms of Offered
Debt Securities"], 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); and
(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;
and
(v) The issuance and sale of the Securities have been duly
authorized by all necessary corporate action on 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 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
(iii) 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 LLP 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 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 the Trustee under the
Indenture, 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) filed after the execution of this Agreement 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.
<PAGE>
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 ___________________________
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.
By ___________________________
<PAGE>
SCHEDULE I
Underwriting Agreement dated _______ ____, 199_
Registration Statements No. 33-___________ and No. 33-_____
Representative and Address:
Securities:
Designation:
Principal Amount: $___,000,000
Supplemental Indenture dated as of _______ __, 199_
Date of Maturity: _________________
Interest Rate: _____% per annum, payable __________ of each year,
commencing ________, 199_.
Purchase Price: _____% of the principal amount thereof,
plus accrued interest from ___________ __, 199_ to the date of
payment and delivery.
Public Offering Price: ____% of the principal amount thereof,
plus accrued interest from __________ __, 199_ to the date of
payment and delivery.
Closing Date and Location:
_________ __, 199_
Reid & Priest LLP
40 West 57th Street
New York, New York 10019
<PAGE>
SCHEDULE II
Underwriters Principal Amount
------------ ----------------
$
---
$
---
$
---
TOTAL . . . . . . . . . . . . $
============
Exhibit 1(c)
CAROLINA POWER & LIGHT COMPANY
Secured Medium-Term Notes, Series _____
SALES AGENCY/DISTRIBUTION AGREEMENT
__________ __, 199_
[Names and addresses of sales agents]
Dear Sirs:
The undersigned Carolina Power & Light Company (the "Company")
hereby confirms its agreement with each of you (individually, an "Agent"
and collectively, the "Agents") as follows:
1. Appointment of Agents. (a) The Company has authorized by
---------------------
appropriate corporate action and proposes to issue and sell in the manner
contemplated by this Agreement not to exceed $_________ in aggregate
principal amount of its Secured Medium-Term Notes, Series _______ (the
"Securities"), registered pursuant to the Registration Statement (as
defined in Section 3(a) hereof).
(b) Subject to the terms and conditions stated in this
Agreement, the Company hereby appoints each of you as Agent for the purpose
of offering and selling the Securities. The Company reserves the right to
sell the Securities on its own behalf directly to investors and, from time
to time, to appoint additional agents to sell the Securities, provided that
the Company shall furnish the Agents with reasonable advance notification
of the addition of any agent to sell the Securities and further provided
that each such additional agent shall be required to execute a sales
agency/distribution agreement in form and substance substantially similar
to this Agreement. Each Agent is authorized to engage the services of any
other broker or dealer in connection with the offer or sale of the
Securities purchased by such Agent as principal for resale to others but is
not authorized to appoint sub-agents. In connection with sales by an Agent
of Securities purchased by such Agent as principal to other brokers or
dealers, such Agent may allow any portion of the discount it has received
in connection with such purchase from the Company to such brokers or
dealers. In the event that the Company shall sell Securities to any
purchaser during the period between the time at which the Company has
accepted an offer to purchase Securities solicited by an Agent from such
purchaser under the terms and conditions of this Agreement and the
Settlement Date (as defined in Section 4 hereof) and such sale directly
results in the failure of such purchaser to accept delivery or pay for the
Securities subject to the solicited offer, the Company shall be obligated
to pay the Agent a commission in respect of such Securities calculated in
accordance with Exhibit B attached hereto.
(c) On the basis of the representations and warranties contained
herein, but subject to the terms and conditions herein set forth, each
Agent agrees, as agent of the Company, to use its reasonable best efforts
when requested by the Company to solicit offers to purchase the Securities
upon the terms and conditions set forth in the Prospectus (as defined in
Section 3(a) hereof) and the Administrative Procedures attached hereto as
Exhibit A, as they may be amended from time to time (the "Procedures").
(d) Administrative procedures relating to the offer and sale of
the Securities, the issue and delivery of certificates representing the
Securities and payment for the Securities are set forth in the Procedures.
Each Agent and the Company agree to perform the respective duties and
obligations to be performed by each of them as provided in the Procedures.
The Procedures may be amended only by a written agreement between the
Company and the Agents. The Agents agree that the principal amount of
Securities to be offered and sold from time to time, the prices, the
interest rates or the method, if any, of determining such interest rates,
the maturities, redemption provisions, if any, and other terms at which the
Securities are to be offered and sold will be in compliance with
limitations established by the Company with the Agents in accordance with
the Procedures.
(e) Promptly upon the Settlement Date, the Company will pay each
Agent a commission for a solicitation made by such Agent (and not for a
purchase by such Agent as principal) in the form of a discount, equal to
the applicable percentage of the principal amount of, or issue price of, as
the case may be, each Security sold by the Company as a result of a
solicitation made by such Agent as set forth in Exhibit B hereto.
(f) Unless otherwise agreed in a Purchase Agreement (as defined
in Section 12 hereof), any Security sold to an Agent as principal shall be
purchased by such Agent at a price equal to 100% of the principal amount
thereof less a percentage equal to the commission applicable to an agency
sale of a Security of identical maturity, and may be resold by such Agent
at prevailing market prices at the time or times of resale as determined by
such Agent.
(g) The Company may instruct the Agents to suspend solicitation
of offers to purchase at any time. Upon receipt of such instructions the
Agents will forthwith suspend solicitation of offers to purchase from the
Company until such time as the Company has advised them that solicitation
of offers to purchase may be resumed.
In the event that at the time the Agents, at the direction of the
Company, suspend solicitation of offers to purchase from the Company there
shall be any orders outstanding which have been accepted but which have not
been settled, the Company will promptly advise the Agents and the Mortgage
Trustee (as defined below) whether such orders may be settled and whether
copies of the Prospectus as theretofore amended and/or supplemented as in
effect at the time of the suspension may be delivered in connection with
the settlement of such orders. The Company will have the sole
responsibility for such decision and for any arrangement which may be made
in the event that the Company determines that such orders may not be
settled or that copies of such Prospectus may not be so delivered.
2. Description of Securities. The Company proposes to issue
-------------------------
the Securities under its Mortgage and Deed of Trust, dated as of May 1,
1940, to The Bank of New York (formerly Irving Trust Company) (the
"Mortgage Trustee") and Frederick G. Herbst (W. T. Cunningham, successor),
as Trustees (the "Trustees"), as supplemented and as it will be further
supplemented by a Supplemental Indenture to be dated as of _________ __,
199_ relating to the Securities (the "Supplemental Indenture"), in
substantially the form heretofore delivered to the Agents, said Mortgage
and Deed of Trust as supplemented and to be supplemented by the
Supplemental Indenture being hereinafter referred to as the "Mortgage."
The Securities shall have the series designation, maturities,
interest rates or the method of determining interest rates, if any,
redemption provisions, if any, and other terms as set forth in the
Prospectus. The Securities will be issued, and the terms thereof
established, from time to time by the Company in accordance with the
Mortgage and the Procedures.
3. Representations and Warranties of the Company. The Company
---------------------------------------------
represents and warrants to each Agent that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
33-___________), including a [combined] prospectus ("registration statement
No. 33-_________"), for the registration of its First Mortgage Bonds 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-_______ 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-____ ) ("registration statement
No. 33-____"), which was declared effective by the Commission on _________,
for the registration of $__,000,000 principal amount of First Mortgage
Bonds, of which an aggregate of $________ principal amount has been
previously issued.] Registration statement No. 33-______, as amended to
the date hereof, [together with registration statement No. 33-______, 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 registration statement No. 33-________, 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
securities of the Company other than the Securities), including the
Incorporated Documents, is hereinafter referred to as the "Prospectus."
Any references 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 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) So long as this Agreement remains in effect, the Company
will not file any amendment to the Registration Statement or supplement to
the Prospectus (other than amendments and supplements relating to the
issuance and sale by the Company of securities of the Company other than
the Securities) which shall not have previously been furnished to the
Agents or of which the Agents shall not previously have been advised or to
which the Agents 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 Agents.
(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 subsection (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 Agent 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 and the trustee under the
Indenture, dated as of __________, 1995, from the Company to Bankers Trust
Company, relating to other debt securities of the Company (the
"Indenture"). 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 Agents 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 Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the state of
North Carolina with corporate power and authority to own, lease and operate
its properties and conduct its business as described in the Registration
Statement and the Prospectus; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which the failure to so qualify and be in good standing
would materially adversely affect the conduct of the business or financial
condition of the Company.
(e) 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
LLP, who have audited certain of the financial statements, are independent
public or independent certified public accountants as required by the
Securities Act and the Exchange Act and the rules and regulations of the
Commission thereunder.
(f) 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, there
has not been any material adverse change in the business, properties or
financial condition of the Company and since such dates, 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.
(g) 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, 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.
(h) The consummation of the transactions 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.
(i) 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. Settlement. Delivery of Securities in fully registered form
----------
shall be made in accordance with the Procedures. The date of
authentication, issuance and delivery of the Global Security or the
Certificated Security (both as defined in the Procedures attached hereto),
as the case may be, sold against delivery to the Company of immediately
available funds in payment therefor is herein called the "Settlement Date."
Delivery of, and payment for, Securities sold to the Agents as principals
shall be made in accordance with a Purchase Agreement (as defined in
Section 12 hereof) relating to such Securities.
5. Obligations of Agents. (a) In soliciting purchases of the
---------------------
Securities from the Company by others (including customers of the Agents),
each Agent will be acting as sales agent for the Company and not as
principal. Each Agent will use its reasonable best efforts to solicit
purchases of the Securities on behalf of the Company as contemplated
hereby; provided that each Agent in its sole discretion can suspend from
time to time its efforts in offering for sale, and soliciting purchases of,
the Securities. In any transaction where an Agent has acted as agent for
the Company and has not purchased as principal, the Agent will make
reasonable efforts to obtain performance by each purchaser of Securities
from the Company, but the Agent will not have any liability to the Company
in the event any such purchase is not consummated for any reason. The
Company also understands that under no circumstances shall an Agent be
obligated to purchase any Securities for its own account except to the
extent the Agent has acted as principal, pursuant to Section 12 hereof, in
purchasing Securities or has made a firm commitment with the Company in
connection with an offering which has been expressly authorized by the
Company and agreed to by the Agent. Unless the Company and the Agents
shall otherwise agree, all purchases by an Agent as principal shall be made
pursuant to a Purchase Agreement.
(b) Each Agent agrees that in carrying out the transactions
contemplated by this Agreement, it will observe and comply with all
securities or Blue Sky laws, regulations, rules and ordinances in any
jurisdiction in which the Securities may be offered, sold or delivered
applicable to it as Agent hereunder. Each Agent agrees not to cause any
advertisement of the Securities to be published in any newspaper or
periodical or posted in any public place and not publicly to issue any
circular relating to the Securities other than the Prospectus, except in
any such case with the express consent of the Company.
6. Covenants of the Company. The Company covenants with each
------------------------
Agent that:
(a) As soon as reasonably 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 Agents and to counsel
for the Agents one fully executed copy or one conformed copy, certified by
an officer of the Company, of registration statement No. 33-_______, [and
one fully executed copy or one conformed copy certified by an officer of
the Company, of registration statement No. 33-________, 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 Agents), including signed copies of
each consent and certificate included therein or filed as an exhibit
thereto, and will deliver to the Agents for distribution as many conformed
copies of the foregoing (excluding the exhibits, but including all
documents incorporated therein) as the Agents may reasonably request. The
Company will also send to the Agents, as soon as practicable after the date
of this Agreement and thereafter from time to time as many copies of the
Prospectus as the Agents may reasonably request for the purposes required
by the Securities Act.
(b) If, during the term of this Agreement, any event occurs as a
result of which the Prospectus would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Securities Act, the Company will notify the
Agents promptly to suspend solicitation of purchases of the Securities and
each Agent shall suspend its solicitations of purchases of Securities; and
if the Company shall decide to amend or supplement the Registration
Statement or the Prospectus, it will promptly advise the Agents by
telephone (with confirmation in writing) and will promptly prepare and file
with the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance.
Upon the Agents' receipt of such amendment or supplement and advice from
the Company that solicitations may be resumed, the Agents will resume
solicitations of purchases of the Securities.
(c) The Company will make generally available to its security
holders, as soon as reasonably practicable following each calendar quarter,
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 ending at the close
of such calendar quarter. The obligation of the Company to make said
earnings statement generally available shall begin with the quarter ending
_______________, 199_ and shall end with the quarter which ends twelve
consecutive months after the end of the calendar quarter in which the last
sale of Securities effected pursuant hereto occurs.
(d) The Company will use its best efforts promptly to do and
perform all things to be done and performed by it hereunder and to satisfy
all conditions precedent to the delivery by it of the Securities.
(e) The Company will promptly advise the Agents 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 file all reports, and amendments thereto,
required to be filed by the Company with the Commission pursuant to Section
13 or 15(d) of the Exchange Act subsequent to the original effective date
of the Registration Statement and for so long as this Agreement shall
remain in effect and to deliver to the Agents without charge promptly after
the filing thereof as many copies of each such report and amendment
(excluding exhibits) as the Agents may reasonably request.
(g) The Company will deliver to the Agents, so long as this
Agreement shall remain in effect, as promptly as possible copies of any
published reports of the Company to its security holders, including any
annual report and quarterly reports of the Company, and any other financial
reports made generally available to its security holders.
(h) 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 Agents 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, to file any general consents to service of process under the
laws of any jurisdiction or to meet other requirements deemed by the
Company to be unduly burdensome.
(i) Promptly after the execution of this Agreement, the Company
will reimburse the Agents for the reasonable fees and disbursements of
Winthrop, Stimson, Putnam & Roberts, who are acting as counsel on behalf of
the Agents, and other out-of-pocket expenses of the Agents related to the
Agents' services in connection with the implementation of the program for
the offer and sale of Securities as contemplated hereby not exceeding in
the aggregate $25,000 (exclusive of fees and expenses referred to in
Section 7).
(j) Unless otherwise agreed to between the Company and an Agent
pursuant to a Purchase Agreement, between the date of any Purchase
Agreement and the Settlement Date specified therein, the Company will not,
without the prior written consent of the Agent party to such Purchase
Agreement, offer or sell or enter into any agreement to sell, Securities
with an interest rate or rates and maturity date substantially similar to
the interest rate or rates and maturity date listed in Schedule 1 attached
to said Purchase Agreement.
7. Payment of Expenses. The Company will pay all expenses
-------------------
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, (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 Section 6(h),
including filing fees and the fees and disbursements of counsel for the
Agents in connection therewith and in connection with the preparation of
the Blue Sky Survey and any Legality Memorandum, such fees and
disbursements not to exceed $5,000, (v) the printing and delivery to the
Agents of copies of the Registration Statement and all amendments thereto,
and of the Prospectus and any amendments or supplements thereto, (vi) the
printing and delivery to the Agents of copies of the Blue Sky Survey, (vii)
the payment or reimbursement of the Agents for the reasonable fees and
expenses of the Agents' counsel for their continuing advice and services
after the date hereof in connection with the matters set forth in Section 9
herein, provided that a reasonably detailed statement for such fees and
disbursements is presented to the Company no less frequently than
quarterly, and (viii) 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 relating to the Securities 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 relating to the Securities.
8. Conditions of Agents' Obligations. The obligations of the
---------------------------------
Agents to act and continue to act as Agents hereunder and the obligations
of the Agents to purchase Securities as principal pursuant to any Purchase
Agreement, shall be subject to the accuracy of the representations and
warranties on the part of the Company at the date of this Agreement, at the
date the Company accepts an offer solicited by an Agent to purchase
Securities (a "Trade Date"), at the date of any Purchase Agreement, and any
Settlement Date (except, in each case, for immaterial details), to the
performance by the Company of its obligations to be performed hereunder
(except for immaterial details), and to the following further conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect and no proceedings for that
purpose shall be pending before, or threatened by, the Commission, and the
Agents shall have received a certificate dated the date of this Agreement
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) There shall have been issued and 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 Agents by reason of its being materially adverse (it being
understood that no such order in effect on the date of this Agreement and
heretofore furnished to the Agents or to Winthrop, Stimson, Putnam &
Roberts contains any such unacceptable provision).
(c) On or before the first Trade Date to occur, the Agents shall
have received favorable opinions from: (1) Reid & Priest LLP, of counsel to
the Company, which opinion shall be satisfactory in form and substance to
Winthrop, Stimson, Putnam & Roberts, counsel for the Agents, 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 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, when issued and paid for as contemplated in
this Agreement, will be 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, will be
entitled to the benefit of the security afforded by the Mortgage, and
will be 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 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 the financial statements and other financial and
statistical data constituting a part thereof or incorporated by
reference therein, upon which such opinion need not pass); and
(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 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 jurisdictions) is legally
required for the issuance and sale of the Securities.
(d) On or before the first Trade Date to occur, the Agents shall
have received 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, to the same
effect with respect to the matters enumerated in subdivisions (i) through
(v) and subdivisions (vii) and (viii) of subsection (c) of this Section 8
as the opinions required by said subsection (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 him 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 Tidewater 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 Tidewater 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
Tidewater 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 ________________________ 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, except as limited by bankruptcy,
insolvency or other laws affecting mortgagees' and other creditors'
rights; and
(viii) The issuance and sale of the Securities have been duly
authorized by all necessary corporate action on the part of the
Company.
In said opinion such counsel may rely as to all matters of South
Carolina law on the opinion of Paulling & James.
(e) On or before the first Trade Date to occur, the Agents shall
have received from Paulling & James, Darlington, South Carolina, a
favorable opinion in form and substance satisfactory to Winthrop, Stimson,
Putnam & Roberts, 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 date of this Agreement, subject to Deloitte & Touche
LLP receiving a representation letter from the Agents' attorneys, in
accordance with Statement on Auditing Standards ("SAS") No. 72 Letters for
-----------
Underwriters and Certain Other Requesting Parties, the Agents shall have
-------------------------------------------------
received from Deloitte & Touche LLP, a letter, 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 included or incorporated by
reference in the Prospectus 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 SAS No. 71, Interim Financial
-----------------
Information, on the unaudited financial statements 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 Prospectus 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 accounting
principles applied on a basis substantially consistent with that of the
most recent audited financial statements incorporated by reference in the
Prospectus; 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 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 Prospectus discloses have occurred or may occur, for
declarations of dividends, for common stock sales under the Automatic
Dividend Reinvestment and Customer Stock Purchase Plan and the Stock
Purchase Savings Plan or for changes or decreases that are described in
such letter; and (iii) covering such other matters as the Agents shall
reasonably request in a timely manner.
(g) At the date of this Agreement the Agents shall receive a
certificate of the Chairman/President or a Vice President or the Treasurer
of the Company, dated as of such date, to the effect that the
representations and warranties of the Company in the Agreement are true and
correct as of such date.
(h) All legal proceedings taken in connection with the issuance
and sale of the Securities shall have been satisfactory in form and
substance to Winthrop, Stimson, Putnam & Roberts.
In case any of the conditions specified above in this Section 8
shall not have been fulfilled, the Agents shall have no obligation to
proceed with any offer for sale, or any solicitation of purchases, or any
purchase by the Agents as principals pursuant to any Purchase Agreement or
otherwise, of the Securities.
9. Further Representations and Warranties by the Company. The
-----------------------------------------------------
Company represents and warrants, and agrees with the Agents, that:
(a) Each acceptance by the Company of an offer to purchase
Securities solicited by an Agent and each purchase of Securities by the
Agents as principals pursuant to Section 12 hereof shall be deemed to be an
affirmation that the representations and warranties of the Company
contained in this Agreement are true and correct at the Trade Date or at
the date of such Purchase Agreement, as the case may be, and an undertaking
that such representations and warranties will be true and correct at the
time of delivery of and payment for Securities sold pursuant to such
acceptance or Purchase Agreement as provided in Section 4 or Section 12
hereof, in each case as though made at and as of each such time (except
that such representations and warranties shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to
each such time); each filing by the Company with the Commission of a
current report on Form 8-K shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this Agreement
are true and correct at the date of such filing as though made at and as of
such date (except that such representations and warranties shall be deemed
to relate to the Registration Statement and the Prospectus as amended and
supplemented as of the date of such filing);
(b) Each time that the Registration Statement or the Prospectus
shall be amended or supplemented, or a document shall be filed under the
Exchange Act which is incorporated by reference in the Registration
Statement or Prospectus (except (i) supplements or amendments relating
solely to the sale of the Securities, the Company's First Mortgage Bonds or
the Company's Debt Securities (as defined in the Prospectus), (ii)
supplements or amendments relating solely to a change in the interest rates
or maturities of the Securities or a change in the principal amount of
Securities remaining to be sold or similar changes and (iii) filings by the
Company with the Commission of current reports on Form 8-K (unless
otherwise requested in writing by the Agents)), or the Company shall sell
Securities to the Agents pursuant to a Purchase Agreement (if required by
the Agents with respect to a particular Purchase Agreement), the Company
shall furnish or cause to be furnished forthwith to the Agents a
certificate in form and substance satisfactory to the Agents in their
reasonable judgment to the effect that the statements contained in the
certificate referred to in Section 8(g) hereof which was last furnished to
the Agents are true and correct at the time of such amendment or supplement
or filing as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of such a
certificate, a certificate, in form and substance satisfactory to the
Agents in their reasonable judgment, of the same general tenor as the
certificate referred to in said Section 8(g) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such certificate;
(c) Each time that the Registration Statement or the Prospectus
shall be amended or supplemented, or a document shall be filed under the
Exchange Act which is incorporated by reference in the Registration
Statement or Prospectus (except (i) supplements or amendments relating
solely to the sale of the Securities, the Company's First Mortgage Bonds or
the Company's Debt Securities (as defined in the Prospectus), (ii)
supplements or amendments relating solely to a change in the interest rates
or maturities of the Securities or a change in the principal amount of
Securities remaining to be sold or similar changes, and (iii) filings by
the Company with the Commission of current reports on Form 8-K (unless
otherwise requested in writing by the Agents)), or the Company shall sell
Securities to the Agents pursuant to a Purchase Agreement (if required by
the Agents with respect to a particular Purchase Agreement), the Company
shall furnish or cause to be furnished forthwith to the Agents written
opinions of Richard E. Jones, Esq., Senior Vice President, General Counsel,
and Secretary for the Company, and Reid & Priest LLP, of counsel to the
Company, dated the date of delivery thereof and in form and substance
satisfactory to counsel for the Agents, of the same tenor as the opinion
required by (iii), (iv) and (vi) through (viii) of Section 8(c) hereof but
modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to the date of such opinions or, in lieu of such
opinions, such counsels may furnish to the Agents a letter to the effect
that the Agents may rely on such last opinion to the same extent as though
it were dated the date of such letter authorizing reliance (except that
statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such letter authorizing reliance); and
(d) Each time that the Registration Statement or the Prospectus
shall be amended or supplemented to set forth financial information
included in or derived from the Company's financial statements, or any
document containing financial information so included or derived shall be
filed under the Exchange Act and incorporated by reference in the
Prospectus (except, in each case, filings by the Company with the
Commission of current reports on Form 8-K (other than any such Form 8-K
containing fourth quarter unaudited financial statements or unless
otherwise requested in writing by the Agents)) or the Company shall sell
Securities to the Agents pursuant to a Purchase Agreement (if required by
the Agents with respect to a particular Purchase Agreement), the Company
shall cause Deloitte & Touche LLP to furnish to the Agents a letter, dated
the date of filing such amendment or supplement or document with the
Commission, in form and substance satisfactory to the Agents in their
reasonable judgment, of the same general tenor as the letter referred to in
Section 8(f) hereof but with appropriate modifications to relate to the
Registration Statement and the Prospectus as amended and supplemented to
the date of such letter and as may be necessary to reflect changes in the
financial information included or incorporated by reference in the
Registration Statement and the Prospectus as then amended or supplemented
since the date of the last previous such letter furnished to the Agents;
provided, however, that the letter to be furnished with respect to year-end
audited financial statements of the Company need only contain the
information required in lead-in language and clause (i) of subsection 8(f)
hereof, modified to relate to the date of such year-end audited financial
statements.
(e) Notwithstanding the foregoing, it is agreed that if, at any
time and from time to time during the term of this Agreement (except the
period from and including a Trade Date and to and including the related
Settlement Date), the Company should deliver to the Agents notification of
its decision to suspend any sale of Securities hereunder, then during the
period of any such suspension or suspensions the Company shall be relieved
of its obligation to provide to the Agents the certificate, opinions and
letter required pursuant to Sections 9(b), 9(c) and 9(d). However, if the
Company shall deliver to the Agents notification of its desire to lift any
such suspension (including any suspension pursuant to Section 6(b) hereof),
the Agents shall not be obligated, subject to the terms and conditions
herein set forth, to resume solicitations of offers to purchase the
Securities in accordance with Section 1(c) hereof, until such time as the
Company shall deliver to the Agents the most recent certificate, opinions
and letter which would have been required except for the suspension.
10. Indemnification. (a) The Company agrees to indemnify and
---------------
hold harmless each Agent and each person who controls such Agent 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 Agent 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 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 Section 10 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 in writing to the Company by or
on behalf of any Agent 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 the
trustee under the Indenture, and provided, further, that the indemnity
agreement contained in this Section 10 shall not inure to the benefit of
any Agent (or of any person controlling such Agent) 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 Agent (i) with or prior to the
written confirmation of the sale involved and (ii) with or prior to the
delivery of such Securities to such person, a copy of any amendment or
supplement to the Prospectus which shall have been furnished subsequent to
such written confirmation and prior to the delivery of such Securities to
such person. The indemnity agreement of the Company contained in this
Section 10 and the representations and warranties of the Company contained
in this Agreement shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Agent or any
such controlling person and shall survive the delivery of the Securities.
The Agents agree to notify promptly the Company, and each other Agent, 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 Agent agrees to indemnify and hold harmless the
Company, its officers and directors[, each other Agent,] 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 or on behalf of such Agent for use in the Registration Statement or the
Prospectus or any amendment or supplement to either thereof. The indemnity
agreement of all the respective Agents contained in this Section 10 shall
remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Company or any of its officers or
directors or any other Agent, or any such controlling person, and shall
survive the delivery of the Securities. The Company agrees promptly to
notify the Agents 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) If the indemnification provided for in paragraphs (a) or (b)
above shall be unenforceable under applicable law by an indemnified party,
each indemnifying party agrees to contribute to such indemnified party with
respect to any and all losses, claims, damages, liabilities and expenses
for which each indemnification provided for in such paragraphs (a) or (b)
shall be unenforceable, in such proportion as shall be appropriate to
reflect the relative fault of each indemnifying party on the one hand and
the indemnified party on the other in connection with the statements or
omissions which have resulted in such losses, claims, damages, liabilities,
and expenses, as well as any other relevant equitable considerations;
provided, however, that no indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any indemnifying party not
guilty of such fraudulent misrepresentation. Relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by such
indemnifying party or the indemnified party and each such party's relative
intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and each of the
Agents agree that it would not be just and equitable if contributions
pursuant to this subsection 10(c) were to be determined by pro rata
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above.
(d) The Company and each of the Agents agrees 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 Company and each Agent agree that the
notification required by the preceding sentence shall be a material term of
this Agreement. The omission so to notify such indemnifying party or
parties of any such action 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).
11. Termination. (a) This Agreement may be terminated at any
-----------
time by any party hereto upon the giving of written notice of such
termination to the other parties hereto effective at the close of business
on the date such notice is received. Any termination of this Agreement
with respect to one Agent shall not terminate the Agreement with respect to
the other Agents unless the Company specifically terminates the Agreement
with all Agents. In the event of any termination, no party shall have any
liability to any other party hereto, except as provided in Section l(e),
Section 5(b), Sections 6(b) and (h), Section 7 and Section 10 hereof and
except that, if at the time of any such termination the Agents shall have
previously confirmed sales of Securities, for which delivery and payment
has not yet been made, the Company shall remain obligated in respect of
such sales as provided in Section 4 hereof and shall continue to have the
obligations provided in Section 9 hereof until delivery of and payment for
all Securities so sold have been completed.
(b) The Agents may terminate a Purchase Agreement at any time
prior to the Settlement Date specified therein by mailing or delivering
written note thereof to the Company, if prior to such time (i) 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
(ii) there shall be occurred any new outbreak of hostilities, including,
but not limited to, an escalation of hostilities which existed prior to the
date of such Purchase Agreement, or other national or international
calamity or crises, 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 Agents, for the Agents to enforce contracts for the sale of
the Securities, or (iii) the Company shall have sustained a substantial
loss by fire, flood, accident or calamity which renders it impracticable,
in the reasonable judgment of the Agents, to consummate the sale of the
Securities and the delivery of the Securities by the Agents at the initial
public offering price, or (iv) if the rating assigned by Moody's Investors
Service, Inc., Standard & Poor's Corporation or Duff & Phelps to the
outstanding Securities as of the date of such Purchase Agreement shall have
been lowered since that date or if any of such rating agencies shall have
publicly announced since that date that it has placed such Securities on
what is commonly termed a "watch list" for possible downgrading. A
Purchase Agreement may also be terminated at any time prior to the
Settlement Date specified therein if in the reasonable judgment of the
Agents party to such Purchase Agreement 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 Agent or
Agents) filed after the execution of such Purchase Agreement shall have
materially impaired the marketability of the Securities. Any termination
of a Purchase Agreement shall be without liability of any party to any
other party except as otherwise provided in Sections 6(b) and (i), in
Section 7 and in Section 10 hereto.
12. Purchases as Principal. From time to time any Agent may
----------------------
agree with the Company to purchase Securities from the Company as
principal, at negotiated discounts, in which case such purchase shall be
made in accordance with the terms of a separate agreement, which may be (i)
an oral agreement, to be entered into between such Agent and the Company
confirmed in writing by such Agent to the Company, or (ii) a written
agreement, to be entered into between such Agent and the Company, in
substantially the form attached hereto as Exhibit C (both oral and written
purchase agreements, a "Purchase Agreement"). A Purchase Agreement may
incorporate by reference specified provisions of this Agreement.
13. Miscellaneous. The validity and interpretation of this
-------------
Agreement shall be governed by the laws of the State of New York. This
Agreement shall inure to the benefit of, and be binding upon, the Company,
the Agents, and with respect to the provisions of Section 10, the officers
and directors and each controlling person referred to in Section 10, 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 Agents.
14. Notices. Except as otherwise specifically provided herein
-------
or in the Prospectus, all communications hereunder shall be in writing or
by TELEX, facsimile, telephone or telegram, if subsequently confirmed in
writing and, if to the Agents, shall be mailed, transmitted by any standard
form of telecommunication or delivered to the Agents 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 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 Agents in accordance with its terms.
Very truly yours,
CAROLINA POWER & LIGHT COMPANY
By: _______________________________________
Accepted as of the date first
above written.
By: __________________________
By: __________________________
SCHEDULE I TO SALES AGENCY/DISTRIBUTION AGREEMENT
[Names and Addresses of Agents]
Attn: __________________
Telephone: (___) ____________
Fax No.: (___) ____________
Attn: __________________
Telephone: (___) ____________
Fax No.: (___) ____________
EXHIBIT A
CAROLINA POWER & LIGHT COMPANY
Secured Medium-Term Notes, Series _
Administrative Procedures
Secured Medium-Term Notes, Series _, due from nine months to
thirty years from date of issue (the "Securities") are to be offered on a
continuing basis by Carolina Power & Light Company (the "Company"). The
aggregate principal amount of Securities to be issued may not exceed
$___________. __________________ as agents (each an "Agent" and
collectively, the "Agents"), have agreed to use their reasonable best
efforts to solicit offers to purchase the Securities. The Securities are
being sold pursuant to a Sales Agency/Distribution Agreement between the
Company and each of the Agents dated ___________, 199_ (the "Distribution
Agreement") to which these administrative procedures are attached as an
exhibit. The Securities will be issued under the Company's Mortgage and
Deed of Trust, dated as of May 1, 1940, to The Bank of New York (formerly
Irving Trust Company) (hereinafter sometimes called the "Mortgage Trustee")
and Frederick G. Herbst (W. T. Cunningham, Successor), as Trustees (the
"Trustees"), as heretofore supplemented and as it is to be further
supplemented by a ___________ Supplemental Indenture to be dated as of
___________, 199_ (the "Mortgage"). The Securities will either bear
interest at a fixed rate (the "Fixed Rate Securities") or at a floating
rate (the "Floating Rate Securities"). The Bank of New York, Corporate
Trust Department, will act as the paying agent (the "Paying Agent") for the
payment of principal of and premium, if any, and interest on the Securities
and will perform, as the Paying Agent, unless otherwise specified, the
other duties specified herein. Terms defined in the Distribution Agreement
shall have the same meaning when used in this exhibit.
Each tranche of the Securities will be represented entirely by
either a Global Security (as defined below) delivered to The Bank of New
York, as agent for The Depository Trust Company ("DTC") and recorded in the
book-entry system maintained by DTC (a "Book-Entry Security") or a
certificate(s) issued as a registered bond(s) delivered to the holder(s)
thereof or a person(s) designated by such holder(s) (a "Certificated
Security"). An owner of a Book-Entry Security will not be entitled to
receive a certificate representing such a Security except under the limited
circumstances described in the Prospectus. An owner of a Certificated
Security will not be entitled to become in lieu thereof the owner of a
Book-Entry Security.
Administrative procedures and specific terms of the offering are
explained below. Book-Entry Securities will be issued in accordance with
the administrative procedures set forth in Part I hereof and Certificated
Securities will be issued in accordance with the administrative procedures
set forth in Part II hereof. Administrative procedures applicable to both
Book-Entry Securities and Certificated Securities are set forth in Part III
hereof. Administrative responsibilities and record-keeping functions will
be performed by the Company's Treasurer or any Assistant Treasurer.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry Securities
for eligibility in the book-entry system maintained by DTC, The Bank of New
York will perform the custodial, document control and administrative
functions described below, in accordance with its respective obligations
under a Letter of Representations dated ___________, 199_, from the Company
and The Bank of New York to DTC and a Secured Medium-Term Note Certificate
Agreement between The Bank of New York and DTC, dated _________, 199_, as
amended to the date hereof and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance
--------
On the date of Settlement (as defined under "Settlement" below)
for each tranche of Fixed Rate Book-Entry Securities, the Company will
issue one or more global securities in fully registered form without
coupons (a "Global Security") representing each such tranche that has the
same Issue Price, Issue Date, Maturity Date, Interest Rate, Interest
Payment Dates and terms of redemption, if any (in each case, and for all
purposes of these administrative procedures, as defined in the Prospectus
(as defined in Section 3(a) of the Distribution Agreement)) (collectively
the "Fixed Rate Terms"). On the date of Settlement for each tranche of
Floating Rate Book-Entry Securities, the Company will issue one or more
Global Securities representing each such tranche that has the same Issue
Price, Issue Date, Maturity Date, base rate upon which interest may be
determined (a "Base Rate"), which may be the Commercial Paper Rate, LIBOR,
the Treasury Rate, or any other rate set forth by the Company, minimum
interest rate, if any, Index Maturity, Spread or Spread Multiplier, if any,
maximum interest rate, if any, Interest Payment Dates and terms of
redemption, if any (collectively, the "Floating Rate Terms"). Each Global
Security will be dated and issued as of the date of its authentication by
the Mortgage Trustee. No Global Security will represent any securities in
certificated form.
Maturities
----------
Each Book-Entry Security will mature on a date mutually agreed
upon by the purchaser and the Company, such date being at least nine months
but not more than thirty years from the date of issuance.
Denominations
-------------
The Book-Entry Securities will be initially issued in
denominations of $[1,000] and any larger denomination which is an integral
multiple of $1,000. Global Securities with respect to each tranche will be
denominated in principal amounts not in excess of $150,000,000. If a
tranche of Book-Entry Securities having an aggregate principal amount in
excess of $150,000,000 would, but for the preceding sentence, be
represented by a single Global Security, then one Global Security will be
issued to represent each $150,000,000 principal amount of such Book-Entry
Security or Securities and an additional Global Security will be issued to
represent any remaining principal amount of such Book-Entry Security or
Securities. In such a case, each of the Global Securities representing
such Book-Entry Security or Securities shall be assigned the same CUSIP
number.
Identification Numbers
----------------------
The Company has arranged with the CUSIP Service Bureau of
Standard & Poor's Corporation (the "CUSIP Service Bureau") for the
reservation of one series of CUSIP numbers (including tranche numbers),
which series consists of approximately 900 CUSIP numbers and relates to
Global Securities representing the Book-Entry Securities. The Company has
obtained from the CUSIP Service Bureau a written list of such series of
reserved CUSIP numbers and has delivered to The Bank of New York and to DTC
such written list. The Bank of New York will assign CUSIP numbers to
Global Securities as described below under Settlement Procedure "B". DTC
will notify the CUSIP Service Bureau periodically of the CUSIP numbers that
The Bank of New York has assigned to Global Securities. At any time when
fewer than 100 of the reserved CUSIP numbers of the series remain
unassigned to Global Securities, the Company, if it deems necessary, will
reserve additional CUSIP numbers for assignment to Global Securities
representing the Book-Entry Securities. Upon obtaining such additional
CUSIP numbers, the Company shall deliver a list of such additional CUSIP
numbers to The Bank of New York and DTC.
Registration
------------
Each Global Security will be registered in the name of
__________, as nominee for DTC, on the bond register maintained under the
Mortgage. The beneficial owner of a Book-Entry Security (or one or more
indirect participants in DTC designated by such beneficial owner) will
designate one or more participants in DTC (with respect to such Security,
the "Participants") to act as agent or agents for such beneficial owner in
connection with the book-entry system maintained by DTC, and DTC will
record in book-entry form, in accordance with instructions provided by such
Participants, a credit balance with respect to such beneficial owner in
such Security in the account of such Participants. The ownership interest
of such beneficial owner in such Security will be recorded through the
records of such Participants or through the separate records of such
Participants and one or more indirect participants in DTC.
Transfers
---------
Transfers of a Book-Entry Security will be accomplished by book
entries made by DTC and, in turn, by Participants (and in certain cases,
one or more indirect participants in DTC) acting on behalf of beneficial
transferees and transferors of such Security.
Consolidations
--------------
The Bank of New York may deliver to DTC and the CUSIP Service
Bureau at any time a written notice of consolidation specifying (i) the
CUSIP numbers of two or more outstanding Global Securities that represent
Book-Entry Securities having the same Fixed Rate Terms or Floating Rate
Terms, as the case may be, and for which interest has been paid to the same
date, (ii) a date, occurring at least thirty days after such written notice
is delivered and at least thirty days before the next Interest Payment Date
for such Book-Entry Securities, on which such Global Securities shall be
exchanged for a single replacement Global Security and (iii) a new CUSIP
number to be assigned to such replacement Global Security. Upon receipt of
such a notice, DTC will send to its participants (including The Bank of New
York) a written reorganization notice to the effect that such exchange will
occur on such date. Prior to the specified exchange date, The Bank of New
York will deliver to the CUSIP Service Bureau a written notice setting
forth such exchange date and the new CUSIP number and stating that, as of
such exchange date, the CUSIP numbers of the Global Securities to be
exchanged will no longer be valid. On the specified exchange date, the
Mortgage Trustee will exchange such Global Securities for a single Global
Security bearing the new CUSIP number, and the CUSIP numbers of the
exchanged Global Securities will, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned. Notwithstanding
the foregoing, if the Global Securities to be exchanged exceed $150,000,000
in aggregate principal amount, one Global Security will be authenticated
and issued to represent each $150,000,000 of principal amount of the
exchanged Global Security and an additional Global Security will be
authenticated and issued to represent any remaining principal amount of
such Global Securities (see "Denominations" above).
Interest
--------
Unless otherwise specified on the Book-Entry Security, interest
on each Book-Entry Security will accrue from and including the original
Issue Date of, or the last date to which interest has been paid on, the
Global Security representing such Security. Each payment of interest on a
Book-Entry Security will include interest accrued through the day
preceding, as the case may be, the Interest Payment Date (provided,
however, that in the case of the Floating Rate Securities which reset daily
or weekly, interest payments will include interest accrued to and including
the Record Date (as defined below) immediately preceding the Interest
Payment Date), date of redemption or Maturity Date. Interest payable on
the Maturity Date or date of redemption of a Book-Entry Security will be
payable to the person to whom the principal of such Book-Entry Security is
payable. DTC will arrange for each pending deposit message described under
Settlement Procedure "C" below to be transmitted to Standard & Poor's
Corporation, which will use the information in the message to include
certain terms of the related Global Security in the appropriate bond report
published by Standard & Poor's Corporation.
Unless otherwise indicated in the Pricing Supplement, the Record
Date for a Fixed Rate Book-Entry Security for the interest payable
_________ 1 shall be __________ 15 and the Record Date for the interest
payable __________ 1 shall be __________ 15. Unless otherwise indicated in
the Pricing Supplement, the Record Date with respect to any Interest
Payment Date for a Floating Rate Book-Entry Security shall be the date 15
calendar days preceding such Interest Payment Date.
Interest Payments
-----------------
Interest payments will be made on each Interest Payment Date
commencing with the first Interest Payment Date following the original
Issue Date; provided, however, that the first payment of interest on any
Global Security originally issued between a Record Date and an Interest
Payment Date will occur on the second Interest Payment Date following the
Issue Date.
If an Interest Payment Date with respect to any Floating Rate
Book-Entry Security would otherwise fall on a day that is not a Business
Day with respect to such Security, such interest payment will be made on
the following day that is a Business Day with respect to such Floating Rate
Book-Entry Security (and no interest shall accrue on such payment for the
period from and after such Interest Payment Date); provided, however, in
the case of a LIBOR Note, if such Business Day is in the next succeeding
calendar month, such interest payment will be made on the immediately
preceding Business Day.
On the first Business Day of January, April, July and October of
each year, the Paying Agent will deliver to the Company and DTC a written
list of Record Dates and Interest Payment Dates that will occur with
respect to Floating Rate Book-Entry Securities during the six-month period
beginning on such first Business Day. Promptly after each date on which
interest is determined for Floating Rate Securities, the Paying Agent will
notify Standard & Poor's Corporation of the interest rates determined on
such date.
Interest on Fixed Rate Book-Entry Securities will be payable
semiannually on _________ 1 and ________ 1 or as indicated in the Pricing
Supplement relating thereto and on the Maturity Date or date of redemption.
Interest will be payable, in the case of the Floating Rate Book-Entry
Securities which reset (a) daily, weekly or monthly on the third Wednesday
of each month or on the third Wednesday of March, June, September and
December of each year, as specified pursuant to Settlement Procedure "A"
below; (b) quarterly, on the third Wednesday of March, June, September and
December of each year; (c) semiannually, on the third Wednesday of each of
the two months of each year specified pursuant to Settlement Procedure "A"
below; and (d) annually, on the third Wednesday of the month specified
pursuant to Settlement Procedure "A" below and, in each case, on the
Maturity Date or date of redemption.
Within 10 days following each Record Date, the Paying Agent will
furnish the Company and DTC a written notice specifying by CUSIP number the
amount of interest to be paid on each Global Security on the following
Interest Payment Date (other than an Interest Payment Date coinciding with
the Maturity Date) and the total of such amounts. DTC will confirm the
amount payable on each Global Security on such Interest Payment Date by
reference to the appropriate bond reports published by Standard & Poor's
Corporation. The Company will pay to the Paying Agent the total amount of
interest due on such Interest Payment Date (other than on the Maturity
Date), such that the Paying Agent can pay such amount to DTC at the times
and in the manner set forth under "Manner of Payment" below. The
Participant, indirect participant in DTC or other person responsible for
forwarding payments and materials directly to the beneficial owner of such
Security, will assume responsibility for withholding taxes on interest paid
as required by law.
Maturity
--------
On or about the first Business Day of each month, the Paying
Agent will deliver to the Company and DTC a written list of principal,
interest and premium, if any, to be paid on each Global Security maturing
on the Maturity Date in the next succeeding month. The Company and DTC
will confirm with the Paying Agent the amounts of such principal, interest
and premium, if any, payments with respect to each such Global Security on
or about the fifth Business Day preceding the Maturity Date of such Global
Security. The Company will pay to the Paying Agent the principal amount of
such Global Security, together with interest and premium, if any, due on
such Maturity Date such that the Paying Agent can pay such amounts to DTC
at the times and in the manner set forth below under "Manner of Payment".
Promptly after payment to DTC of the principal, interest and premium, if
any, due at the Maturity Date of such Global Security, the Paying Agent
will cancel such Global Security in accordance with the terms of the
Mortgage. On or about the first Business Day of each month, the Paying
Agent will deliver to the Company a written statement indicating the total
principal amount of outstanding Global Securities as of the immediately
preceding Business Day.
Manner of Payment
-----------------
The total amount of any principal, interest and premium, if any,
due on Global Securities on any Interest Payment Date or on the Maturity
Date or the date of redemption shall be paid by the Company to the Paying
Agent in immediately available funds for use by the Paying Agent on such
date. The Company will make such payment on such Global Securities by wire
transfer to the Paying Agent. The Company will confirm such instructions
in writing to the Paying Agent. Prior to 10 AM (New York City time) on
each Maturity Date or date of redemption or as soon as possible thereafter,
the Paying Agent will pay by separate wire transfer (using Fedwire message
entry instructions in a form previously agreed to with DTC) to an account
at the Federal Reserve Bank of New York previously agreed to with DTC, in
funds available for immediate use by DTC, each payment of principal
(together with, premium, if any, and interest thereon) due on Global
Securities on any Maturity Date or date of redemption. On each Interest
Payment Date, interest payments shall be made to DTC in same day funds in
accordance with existing arrangements between The Bank of New York and DTC.
Thereafter, on each such date, DTC will pay, in accordance with its SDFS
operating procedures then in effect, such amounts in funds available for
immediate use to the respective Participants in whose names the Book-Entry
Securities represented by such Global Securities are recorded in the book-
entry system maintained by DTC. Neither the Company nor the Paying Agent
shall have any direct responsibility or liability for the payment by DTC to
such Participants of the principal of, interest on and premium, if any, on
the Book-Entry Securities.
Settlement
----------
The receipt of immediately available funds by the Company in
payment for a Book-Entry Security (less the applicable commission) and the
authentication and issuance of the Global Security representing such
Security shall, with respect to such Security, constitute "Settlement".
All offers accepted by the Company will be settled within five Business
Days from the date of acceptance by the Company pursuant to the timetable
for Settlement set forth below unless the Company and the purchaser agree
to Settlement on a later day that shall be no earlier than the next
Business Day.
Settlement Procedures
---------------------
In the event of a purchase of Securities by an Agent, as
principal, appropriate settlement details will be set forth in the
applicable Purchase Agreement to be entered into between such Agent and the
Company pursuant to the Agency Agreement.
Settlement procedures with regard to each Book-Entry Security
sold through each Agent shall be as follows:
A. Such Agent will advise the Company by telephone (confirmed in
writing, which may include telex or facsimile) or by telex or facsimile, of
the following sale information "Sale Information":
1. Principal amount of the Security.
2. Issue price of the Security.
3. Issue date of the Security (and, if different, date from
which interest accrues).
4. Settlement date.
5. Maturity date.
6. Interest rate.
a) Fixed Rate Securities:
i) interest rate
b) Floating Rate Securities:
i) base rate
ii) initial interest rate
iii) spread or spread multiplier, if any
iv) interest reset dates
v) interest reset period
vi) interest payment dates
vii) interest payment period
viii) interest determination dates
ix) index maturity
x) maximum and minimum interest rates, if any
xi) calculation date
7. Redemption dates, if any, including any initial redemption
date, par date and limitation date.
8. Redemption premium, if any, including any initial percentage
and reduction percentage.
9. Agent's commission (to be paid in the form of a discount
from the proceeds remitted to the Company upon Settlement)
and Agent's certification that the purchasers of the
Security have been solicited solely by such Agent.
10. Net proceeds to the Company.
B. The Bank of New York will assign a CUSIP number to the Global
Security representing such Book-Entry Security and the Company will advise
The Bank of New York by telephone or by telex or facsimile of the
information set forth in Settlement Procedure "A" above to be confirmed in
a written request for the authentication and delivery of such Global
Security, such CUSIP number and the name of such Agent. The Bank of New
York will also notify the Agent of such CUSIP number by telephone as soon
as practicable. Each such communication by the Company shall constitute a
representation and warranty by the Company to The Bank of New York and each
Agent that (i) such Book-Entry Security is then, and at the time of
issuance and sale thereof will be, duly authorized for issuance and sale by
the Company, (ii) the Global Security representing such Book-Entry Security
will conform with the terms of the Mortgage pursuant to which such Book-
Entry Security and Global Security are issued and (iii) upon authentication
and delivery of such Global Security, the aggregate principal amount of all
Securities initially offered and issued under the Mortgage will not exceed
$_____________ (except for Global Securities or Securities represented by
and authenticated and delivered in exchange for or in lieu of Securities in
accordance with the Mortgage).
C. The Bank of New York will enter a pending deposit message through
DTC's Participant Terminal System, providing the following settlement
information to DTC, and such information will be routed to Standard &
Poor's Corporation through DTC:
1. The information set forth in Settlement Procedure "A".
2. Identification as a Fixed Rate Book-Entry Security or a
Floating Rate Book-Entry Security.
3. Initial Interest Payment Date for such Book-Entry Security,
number of days by which such date succeeds the related
Record Date (or, in the case of Floating Rate Securities
which reset daily or weekly, the date five calendar days
preceding the Interest Payment Date) and amount of interest
payable on such Interest Payment Date.
4. CUSIP number of the Global Security representing such Book
Entry Security.
5. Whether such Global Security will represent any other Book
Entry Security (to the extent known at such time).
6. Interest Payment Period.
D. The Mortgage Trustee will complete and authenticate the Global
Security representing such Security.
E. DTC will credit such Security to The Bank of New York's
participant account at DTC.
F. The Bank of New York will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to (i) debit such
Security to The Bank of New York's participant account and credit such
Security to such Agent's participant account and (ii) debit such Agent's
settlement account and credit The Bank of New York's settlement account for
an amount equal to the price of such Security less such Agent's commission.
The entry of such a deliver order shall constitute a representation and
warranty by The Bank of New York to DTC that (a) the Global Security
representing such Security has been issued and authenticated and (b) The
Bank of New York is holding such Global Security pursuant to the Secured
Medium-Term Note Certificate Agreement between The Bank of New York and
DTC.
G. Such Agent will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC (i) to debit such Security to
such Agent's participant account and credit such Security to the
participant accounts of the Participants with respect to such Security and
(ii) to debit the settlement accounts of such Participants and credit the
settlement account of such Agent for an amount equal to the price of such
Security.
H. The Bank of New York will transfer to the account of the Company
maintained at The Bank of New York, New York, New York, in immediately
available funds in the amount transferred to The Bank of New York in
accordance with Settlement Procedure "F".
I. Such Agent will confirm the purchase of such Book-Entry Security
to the purchaser either by transmitting to the Participants with respect to
such Book-Entry Security a confirmation order or orders through DTC's
institutional delivery system or by mailing a written confirmation to such
purchaser. Such Agent will deliver to the purchaser a copy of the most
recent Prospectus applicable to the Security with or prior to any written
offer of Securities and the confirmation and payment by the purchaser for
the Book-Entry Security.
J. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "F" and "G" will be settled in
accordance with SDFS operating procedures in effect on the Settlement Date.
K. The Bank of New York will send a copy of the Global Security by
first-class mail to the Company together with a statement setting forth the
principal amount of Securities outstanding as of the related Settlement
Date after giving effect to such transaction and all other offers to
purchase Securities of which the Company has advised The Bank of New York
but which have not yet been settled.
Settlement Procedures Timetable
-------------------------------
For offers of Book-Entry Securities accepted by the Company,
Settlement procedures "A" through "J" set forth above shall be completed to
the extent possible at or before the respective times set forth below:
Settlement
Procedure Time (New York)
---------- ----
A (1-10) 11 AM on the sale date
B 12 Noon on the sale date
C 2 PM on the sale date
D 9 AM on the Settlement Date
E 10 AM on the Settlement Date
F-G 2 PM on the Settlement Date
H-I 4:45 PM on the Settlement Date
J 3:30 PM on the Settlement Date
If a sale is to be settled more than one Business Day after the
sale date, Settlement Procedures "A", "B" and "C" shall be completed as
soon as practicable but no later than 11 AM, 12 Noon and 2 PM, as the case
may be, on the first Business Day after the sale date. In connection with
a sale which is to be settled more than one Business Day after the sale
date, if the initial interest rate for a Floating Rate Book-Entry Security
is not known at the time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be completed as soon as such rates
have been determined, but no later than 12 Noon and 2 PM, as the case may
be, on the second Business Day before the Settlement Date. Settlement
Procedures "H" and "J" are subject to extension in accordance with any
extension of Fedwire closing deadlines and in other events specified in the
SDFS operating procedures in effect on the Settlement Date.
If Settlement of a Book-Entry Security is rescheduled or
canceled, the Company will instruct The Bank of New York to deliver to DTC
a cancellation message to such effect by no later than 12 Noon on the
Business Day immediately preceding the scheduled Settlement Date and The
Bank of New York will enter such order by 2 PM through DTC's Participation
Terminal System.
Failure to Settle
-----------------
If The Bank of New York or the Agent fails to enter an SDFS
deliver order with respect to a Book-Entry Security pursuant to Settlement
Procedure "F" or "G", The Bank of New York may deliver to DTC, through
DTC's Participant Terminal System, as soon as practicable, a withdrawal
message instructing DTC to debit such Security to The Bank of New York's
participant account, provided that The Bank of New York's participant
account contains a principal amount of the Global Security representing
such Book-Entry Security that is at least equal to the principal amount to
be debited. If a withdrawal message is processed with respect to all the
Book-Entry Securities represented by a Global Security, The Bank of New
York will mark such Global Security "canceled", make appropriate entries in
The Bank of New York's records and send such canceled Global Security to
the Company. The CUSIP number assigned to such Global Security shall, in
accordance with CUSIP Service Bureau procedures, be canceled and not
immediately reassigned. If a withdrawal message is processed with respect
to one or more, but not all, of the Book-Entry Securities represented by a
Global Security, The Bank of New York will exchange such Global Security
for another Global Security, which shall represent the Book-Entry
Securities previously represented by the surrendered Global Security with
respect to which a withdrawal message has not been processed and shall bear
the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely
paid to the Participants with respect to such Security by the beneficial
purchaser thereof (or a person, including an indirect participant in DTC,
acting on behalf of such purchaser), such Participants and, in turn, the
Agent for such Security may enter SDFS deliver orders through DTC's
Participant Terminal System reversing the orders entered pursuant to
Settlement Procedures "G" and "F", respectively. Thereafter, The Bank of
New York will deliver the withdrawal message and take the related actions
described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Security, DTC may take any actions in accordance
with its SDFS operating procedures then in effect. In the event of a
failure to settle with respect to one or more, but not all, of the Book-
Entry Securities to have been represented by a Global Security, the
Mortgage Trustee will provide, in accordance with Settlement Procedure "D",
for the authentication and issuance of a Global Security representing the
other Book-Entry Securities to have been represented by such Global
Security and will make appropriate entries in its records.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Bank of New York will act as registrar in connection with the
Certificated Securities.
Maturities
----------
Each Certificated Security will mature on a date mutually agreed
upon by the purchaser and the Company, such date being at least nine months
but not more than thirty years from the date of issuance.
Denominations
-------------
The Certificated Securities will be initially issued in
denominations of $100,000 and any larger denomination which is an integral
multiple of $1,000.
Registration
------------
Certificated Securities will be issued only in fully registered
form.
Interest
--------
Unless otherwise specified on the Certificated Security, interest
on each Certificated Security will accrue from and including the original
Issue Date of, or the last date to which interest has been paid on, such
Security. Each payment of interest on a Certificated Security will include
interest accrued to but excluding the Interest Payment Date (provided that,
in the case of Floating Rate Certificated Securities which reset daily or
weekly, interest payments will include interest accrued and including the
Record Date immediately preceding the Interest Payment Date), date of
redemption or Maturity Date. Interest payable on the Maturity Date or date
of redemption of a Certificated Security will be payable to the person to
whom the principal of such Certificated Security is payable.
Unless otherwise indicated in the Pricing Supplement, the Record
Date for a Fixed Rate Certificated Security for the interest payable
_________ 1 shall be ________ 15 and the Record Date for the interest
payable ________ 1 shall be ________ 15. Unless otherwise indicated in the
Pricing Supplement, the Record Date with respect to any Interest Payment
Date for a Floating Rate Certificated Security shall be the date 15
calendar days preceding such Interest Payment Date.
Interest Payments
-----------------
Interest payments will be made on each Interest Payment Date
commencing with the first Interest Payment Date following the original
Issue Date; provided, however, that the first payment of interest on any
Certificated Security originally issued between a Record Date and an
Interest Payment Date will occur on the second Interest Payment Date
following the Issue Date.
If an Interest Payment Date with respect to any Floating Rate
Certificated Security would otherwise fall on a day that is not a Business
Day with respect to such Security, such interest payment will be the
following day that is a Business Day with respect to such Security (and no
interest shall accrue on such payment for the period from and after such
Interest Payment Date); provided, however, in the case of a LIBOR Note, if
such Business Day is in the next succeeding calendar month, such interest
payment will be made on the immediately preceding Business Day.
Within 10 days following each Record Date, the Paying Agent will
inform the Company of the total amount of the interest payments to be made
by the Company on the next succeeding Interest Payment Date. On or about
the first Business Day of each month, the Paying Agent will provide to the
Company a list of the principal, interest and premium, if any, to be paid
on Certificated Securities maturing in the next succeeding month.
Interest on Fixed Rate Certificated Securities will be payable
semiannually on ________ and ________ or as indicated in the Pricing
Supplement relating thereto and at maturity. Unless otherwise agreed upon,
interest will be payable, in the case of the Floating Rate Certificated
Securities which reset (a) daily, weekly or monthly on the third Wednesday
of each month or on the third Wednesday of March, June, September and
December of each year, as specified pursuant to "Settlement Procedures"
below; (b) quarterly, on the third Wednesday of March, June, September and
December of each year; (c) semiannually, on the third Wednesday of each of
the two months of each year specified pursuant to Settlement Procedures
below; and (d) annually, on the third Wednesday of the month specified
pursuant to Settlement Procedures below and, in each case, at maturity.
Interest will be payable to the person in whose name a
Certificated Security is registered at the close of business on the Record
Date next preceding the Interest Payment Date. Unless other arrangements
are made acceptable to the Company, all interest payments (excluding
interest payments made on the Maturity Date or the date of redemption, if
any) on a Certificated Security will be made by check mailed to the person
entitled thereto as provided below.
Settlement
----------
The receipt of immediately available funds by the Company in
payment for a Certificated Security (less the applicable commission) and
the authentication and issuance of the registered bond representing such
Security shall, with respect to such Security, constitute "Settlement".
All offers accepted by the Company will be settled within five Business
Days from the date of acceptance by the Company pursuant to the timetable
for Settlement set forth below unless the Company and the purchaser agree
to Settlement on a later day that shall be no earlier than the next
Business Day.
Settlement Procedures
---------------------
For each offer to purchase a Certificated Security that is
accepted by the Company, the Agent will provide (unless provided by the
purchaser directly to the Company) by telephone (confirmed in writing,
which may include telex or facsimile) or by telex or facsimile, the
following information to the Company:
1. Name in which such Security is to be registered (the
"Registered Owner").
2. Address of the Registered Owner and, if different, address
for payment of principal and interest.
3. Taxpayer identification number of the Registered Owner.
4. Principal amount of the Security.
5. Issue price of the Security.
6. Issue date of the Security (and, if different, date from
which interest accrues).
7. Settlement date.
8. Maturity date.
9. Interest rate.
a) Fixed Rate Securities:
i) interest rate
b) Floating Rate Securities:
i) base rate
ii) initial interest rate
iii) spread or spread multiplier, if any
iv) interest reset dates
v) interest reset period
vi) interest payment dates
vii) interest payment period
viii) interest determination dates
ix) index maturity
x) maximum and minimum interest rates, if any
xi) calculation date
10. Redemption dates, if any, including any initial redemption
date, par date and limitation date.
11. Redemption premium, if any, including any initial percentage
and reduction percentage.
12. Agent's commission (to be paid in the form of a discount
from the proceeds remitted to the Company upon Settlement)
and Agent's certification that the purchasers of the
Security have been solicited solely by such Agent.
13. Net proceeds to the Company.
The Agent will advise the Company of the foregoing information (unless
provided by the purchaser directly to the Company) for each offer to
purchase a Certificated Security solicited by such Agent and accepted by
the Company in time for the Mortgage Trustee to prepare and authenticate
the required Certificated Security. Before accepting any offer to purchase
a Certificated Security to be settled in less than three Business Days, the
Company shall verify that the Mortgage Trustee will have adequate time to
prepare and authenticate such Security. After receiving from the Agent the
details for each offer to purchase a Certificated Security that has been
accepted by the Company, the Company will, after recording the details and
any necessary calculations, provide appropriate documentation to the
Mortgage Trustee, including the information provided by the Agent necessary
for the preparation and authentication of such Security.
Security Deliveries and Payment
-------------------------------
Upon receipt of appropriate documentation and instructions, the
Company will cause the Mortgage Trustee to prepare and authenticate the
pre-printed 4-ply Certificated Security packet containing the following
documents in the form approved by the Company:
1. Security with customer receipt
2. Stub 1 For the Agent
3. Stub 2 For the Company
4. Stub 3 For the Mortgage Trustee
Each Certificated Security shall be authenticated on the Settlement Date
therefor. The Mortgage Trustee will authenticate each Certificated
Security and deliver it to the Agent, all in accordance with written
instructions (or oral instructions confirmed in writing (which may be given
by telex or telecopy) on the next Business Day) from the Company. Delivery
by the Mortgage Trustee of each Certificated Security will be made in
accordance with said instructions against receipt therefor and in
connection with contemporaneous receipt by the Company from the Agent on
the Settlement Date in immediately available funds of an amount equal to
the issue price of such Security less the Agent's commission.
Upon verification ("Verification") by the Agent that a
Certificated Security has been prepared and properly authenticated by the
Mortgage Trustee and registered in the name of the purchaser in the proper
principal amount and other terms in accordance with the aforementioned
confirmation, payment will be made to the Company by the Agent the same day
as the Agent's receipt of the Certificated Security in immediately
available funds. Such payment shall be made by the Agent only upon prior
receipt by the Agent of immediately available funds from or on behalf of
the purchaser unless the Agent decides, at its option, to advance its own
funds for such payment against subsequent receipt of funds from the
purchaser.
Upon delivery of a Certificated Security to the Agent,
Verification by the Agent and the giving of instructions for payment, the
Agent shall promptly deliver such Security to the purchaser.
In the event any Certificated Security is incorrectly prepared,
the Mortgage Trustee shall promptly issue a replacement Certificated
Security in exchange for such incorrectly prepared Security.
Any Certificated Security to be delivered to __________ shall be
delivered to __________, attention: __________.
Failure to Settle
-----------------
If the Agent, at its own option, has advanced its own funds for
payment against subsequent receipt of funds from the purchaser, and if the
purchaser shall fail to make payment for the Certificated Security on the
Settlement Date therefor, the Agent will promptly notify the Mortgage
Trustee and the Company by telephone, promptly confirmed in writing (but no
later than the next Business Day). In such event, the Company shall
promptly provide the Mortgage Trustee with appropriate documentation and
instructions consistent with these procedures for the return of the
Certificated Security to the Mortgage Trustee and the Agent will promptly
return the Certificated Security to the Mortgage Trustee. Upon (i)
confirmation from the Mortgage Trustee in writing (which may be given by
telex or telecopy) that the Mortgage Trustee has received the Certificated
Security and upon (ii) confirmation from the Agent in writing (which may be
given by telex or telecopy) that the Agent has not received payment from
the purchaser (the matters referred to in clauses (i) and (ii) are referred
to hereinafter as the "Confirmations"), the Company will promptly pay to
the Agent an amount in immediately available funds equal to the amount
previously paid by the Agent in respect of such Certificated Security.
Assuming receipt of the Certificated Security by the Mortgage Trustee and
of the Confirmations by the Company, such payment will be made on the
Settlement Date, if reasonably practical, and in any event not later than
the Business Day following the date of receipt of the Certificated Security
and Confirmations. If a purchaser shall fail to make payment for the
Certificated Security for any reason other than the failure of the Agent to
provide the necessary information to the Company as described above for
settlement or to provide a confirmation to the purchaser within a
reasonable period of time as described above or otherwise to satisfy its
obligation hereunder or in the Distribution Agreement, and if the Agent
shall have otherwise complied with its obligations hereunder and in the
Distribution Agreement, the Company will reimburse the Agent on an
equitable basis for its loss of the use of funds during the period when
they were credited to the account of the Company.
Immediately upon receipt of the Certificated Security in respect
of which the failure occurred, the Mortgage Trustee will void such
Security, make appropriate entries in its records and send such canceled
Security to the Company; and upon such action, the Certificated Security
will be deemed not to have been issued, authenticated and delivered.
PART III: ADMINISTRATIVE PROCEDURES APPLICABLE TO BOTH BOOK-ENTRY NOTES AND
CERTIFICATED NOTES
Price to Public
---------------
Each Security will be issued at 100% of principal amount, unless
otherwise determined by the Company and specified in a Pricing Supplement.
Calculation of Interest
-----------------------
In the case of Fixed Rate Securities, interest (including
payments for partial periods) will be calculated on the basis of a 360-day
year of twelve 30-day months. Interest does not accrue on the 31st day of
any month. Interest rates on Floating Rate Securities will be determined
as set forth in the form of such Securities. Interest will be calculated
on the basis of the actual number of days in the interest period divided by
360; except that in the case of Treasury Rate Securities, interest will be
calculated on the basis of the actual number of days in the interest period
divided by the actual number of days in the year.
Procedure for Rate Changes
--------------------------
The Company and the Agents will discuss from time to time the
rates of interest per annum to be borne by, the maturity, and other terms
of, the Securities that may be sold as a result of the solicitation of
offers to purchase by the Agents.
When a decision has been reached to change interest rates on or
other variable terms with respect to any Securities being sold by the
Company, the Company will promptly advise the Agents and the Agents will
forthwith suspend solicitation of offers to purchase such Securities. The
Agents will telephone the Company with recommendations as to the changed
interest rates or other variable terms. At such time as the Company has
advised each of the Agents of the new interest rates on or other variable
terms with respect to the Securities, the Agents may resume solicitation of
offers to purchase such Securities. Until such time only "indications of
interest" may be recorded.
Acceptance and Rejection of Offers; Authorized Persons
------------------------------------------------------
Verbal instructions regarding sales of Securities will be given
for the Company by the Treasurer, the Manager of Financial Services or such
other persons as may be designated from time to time. Verbal instructions
to ____________ will be accepted by __________________ or such other
persons as may be designated from time to time. Verbal instructions to
______________ will be accepted by _________________ or such other persons
as may be designated from time to time.
The Company shall have the sole right to accept offers to
purchase Securities from the Company and may reject any such offer in whole
or in part. Each Agent shall promptly communicate to the Company verbally
or in writing, each reasonable offer to purchase Securities from the
Company received by it other than those rejected by such Agent. Each Agent
shall have the right, in its discretion reasonably exercised without
advising the Company, to reject any offers in whole or in part which it
determines to be unreasonable.
Pricing Supplement
------------------
If the Company accepts an offer to purchase a Security, the
Company will prepare a Pricing Supplement reflecting the terms of such
Security and will arrange to have ten copies of the Pricing Supplement
filed with the Commission not later than the close of business on the
second Business Day following such acceptance of an offer to purchase such
Security and will supply at least ten copies of the Pricing Supplement to
the Agent. The Agent will cause the Prospectus and Pricing Supplement to
be delivered to the purchaser of the Security in accordance with the
procedures set forth in "Delivery of Prospectus" below.
Delivery of Prospectus
----------------------
Each Agent will provide a copy of the relevant Prospectus,
appropriately amended or supplemented, which must accompany or precede each
written offer of a Security by such Agent, each written confirmation of a
sale sent to a purchaser or his agent by such Agent and payment for each
Security by a purchaser.
Advertising Costs
-----------------
The Company will determine with the Agents the amount and nature
of advertising that may be appropriate in offering the Securities.
Advertising expenses in connection with solicitation of offers to purchase
Securities from the Company will be paid by the Company.
Business Day
------------
Any day, other than a Saturday or Sunday, and other than a day on
which banking institutions are authorized or required by law or regulation
to close in The City of New York or, if the Base Rate is LIBOR, the City of
London, England.
EXHIBIT B
The Company agrees to pay each Agent a commission equal to the
following percentage of the aggregate principal amount of Securities sold
to purchasers solicited by such Agent or, in the event the Securities are
being sold at a discount, the issue price thereof.
Commission Rate (as a
percentage of aggregate
principal amount of Securities
sold or the issue price, as
the case may be)
------------------------------
Term
----
9 months to less than 12 months
12 months to less than 18 months
18 months to less than 24 months
2 years to less than 3 years
3 years to less than 4 years
4 years to less than 5 years
5 years to less than 6 years
6 years to less than 7 years
7 years to less than 10 years
10 years to less than 15 years
15 years to less than 20 years
20 years to 30 years
EXHIBIT C
PURCHASE AGREEMENT
___________ __, 199_
Carolina Power & Light Company
411 Fayetteville Street
Raleigh, North Carolina 27601-1748
Attention:
The undersigned agrees to purchase the principal amount of the
Securities (described in the Sales Agency/Distribution Agreement dated
___________, 199_ between you and each of _________ and the undersigned
(the "Distribution Agreement")) set forth in the Schedule attached hereto.
Terms not otherwise defined herein shall have the meanings ascribed to them
in the Distribution Agreement.
Our obligation to purchase Securities hereunder is subject to the
accuracy of your representations and warranties contained in the
Distribution Agreement on the date hereof and on the Settlement Date and to
your performance and observance of the covenants and agreements set forth
below: [ ]. Our obligation hereunder is subject to the further
condition that we shall receive (a) the opinions required to be delivered
pursuant to Sections 8(c) and (d) of the Distribution Agreement, (b) the
certificate required to be delivered pursuant to Section 8(g) of the
Distribution Agreement and (c) the letter required to be delivered pursuant
to Section 8(f) of the Distribution Agreement, in each case dated as of the
above Settlement Date.
In further consideration of our agreement hereunder, you agree
that between the date hereof and the Settlement Date you shall not, without
our prior written consent, offer or sell or enter into any agreement to
sell, additional Securities or other First Mortgage Bonds of the Company,
with an interest rate or rates and maturity date substantially similar to
the interest rate or rates and maturity date listed in Schedule 1 attached
hereto.
This Agreement may be terminated by us at any time prior to the
Settlement Date by mailing or delivering written notice thereof to you, 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 Securities and Exchange 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 our reasonable judgment, for us to enforce
contracts for the sale of the Securities, or (c) the Company shall have
sustained a substantial loss by fire, flood, accident or calamity which
renders it impracticable, in our reasonable judgment, to consummate the
sale of the Securities by us at the initial public offering price, or (d)
if the rating assigned by Moody's Investors Service, Inc., Standard &
Poor's Corporation or Duff & Phelps to the outstanding Securities as of the
date of this Agreement shall have been lowered since that date or if any of
such rating agencies shall have publicly announced since that date that it
has placed such Securities on what is commonly termed a "watch list" for
possible downgrading. This Agreement may also be terminated at any time
prior to the Settlement Date if in our reasonable judgment the subject
matter of any amendment or supplement to the Registration Statement or
Prospectus (other than any amendment or supplement relating solely to our
activities) filed after the execution of this Agreement shall have
materially impaired the marketability of the Securities. Any termination
of this Agreement shall be without liability of any party to any other
party except as otherwise provided in Sections 6(b) and (i), in Section 7
and in Section 10 of the Distribution Agreement.
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
By ________________________
By ________________________
Accepted: , 199_
Carolina Power & Light Company
By ________________________
Registration Statement:
No. 33-________
SCHEDULE 1 TO EXHIBIT C
Mortgage:
Mortgage and Deed of Trust, dated as of May 1, 1940, to The Bank
of New York (formerly Irving Trust Company) and Frederick G.
Herbst (W. T. Cunningham, successor), as Trustees, as
supplemented.
Title of Purchased Securities:
Aggregate Principal Amount:
Price to Public:
Purchase Price:
___% of the principal amount of the Purchased Securities, plus
accrued interest from ________ to ________
Method of Payment of Purchase Price:
Closing Location:
Redemption Provisions:
Maturity:
If fixed rate securities
Interest Rate:
[ %]
Interest Payment Date[s]:
If variable rate securities
Base Rate:
Initial Interest Rate:
Interest Determination Dates:
Interest Reset Dates:
Interest Reset Period:
Interest Payment Dates:
Index Maturity:
Interest Payment Period:
Maximum Interest Rate:
Minimum Interest Rate:
Calculation Date:
Spread or Alternate Rate Event Spread:
Spread Multiplier:
Documents to be Delivered:
The following documents referred to in the Distribution Agreement
shall be delivered as a condition to the Closing:
Syndicate Provisions:
[Set forth any provisions relating to underwriters' default and
step-up of amounts to be purchased by underwriters acting with
_____________ or _____________, as the case may be.]
Additional Terms:
Exhibit 4(e)
==========================================================================
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
========================================================================
<PAGE>
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
<PAGE>
-2-
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
<PAGE>
-3-
Designation Dated as of
----------- -----------
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
<PAGE>
-4-
Designation Dated as of
----------- -----------
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
<PAGE>
-5-
Principal Principal
Amount Amount
Series Issued Outstanding
------ ------ -----------
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
<PAGE>
-6-
Principal Principal
Amount Amount
Series Issued Outstanding
------ ------ -----------
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
<PAGE>
-7-
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
<PAGE>
-8-
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
<PAGE>
-9-
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
<PAGE>
-10-
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
<PAGE>
-11-
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
<PAGE>
-12-
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
<PAGE>
-13-
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.
<PAGE>
-14-
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
<PAGE>
-15-
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
<PAGE>
-16-
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
<PAGE>
-17-
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
<PAGE>
-18-
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 4(f)
============================================================
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-THIRD SUPPLEMENTAL INDENTURE
Providing among other things for
First Mortgage Bonds, Pollution Control Series L and M
(Sixty-sixth and Sixty-seventh Series)
_________________
Dated as of May 1, 1994
============================================================
<PAGE>
SIXTY-THIRD SUPPLEMENTAL INDENTURE
INDENTURE, dated as of May 1, 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-third 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
<PAGE>
-2-
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
<PAGE>
-3-
Designation Dated as of
----------- -----------
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
<PAGE>
-4-
Designation Dated as of
----------- -----------
Fifty-first Supplemental Indenture . . April 1, 1991
Fifty-second Supplemental Indenture . . September 15, 1991
Fifty-third Supplemental Indenture . . January 1, 1992
Fifty-fourth Supplemental Indenture . . April 15, 1992
Fifty-fifth Supplemental Indenture . . July 1, 1992
Fifty-sixth Supplemental Indenture . . October 1, 1992
Fifty-seventh Supplemental Indenture . February 1, 1993
Fifty-eighth Supplemental Indenture . . March 1, 1993
Fifty-ninth Supplemental Indenture . . July 1, 1993
Sixtieth Supplemental Indenture . . . . July 1, 1993
Sixty-first Supplemental Indenture . . August 15, 1993
Sixty-second Supplemental Indenture . . January 15, 1994
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-
second Supplemental Indentures were or are to be recorded in
all Counties in the States of North Carolina and South
Carolina in which this Sixty-third 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
<PAGE>
-5-
Principal Principal
Amount Amount
Series Issued Outstanding
------ ---------- -----------
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 22,626,000
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 None
9-1/4% Series due
June 1, 2008 . . . . . . . 100,000,000 None
10-1/2% Series due
May 15, 2009 . . . . . . . 125,000,000 None
12-1/4% Series due
November 1, 2009 . . . . . 100,000,000 None
Pollution Control Series A . 63,000,000 None
14-1/8% Series due
April 1, 1987 . . . . . . . 125,000,000 None
Pollution Control Series B . 50,000,000 None
Pollution Control Series C . 6,000,000 None
11-5/8% Series due
December 1, 1992 . . . . . 100,000,000 None
Pollution Control Series D . 48,485,000 48,485,000
Pollution Control Series E . 5,970,000 5,970,000
12-7/8% Series due
December 1, 2013 . . . . . 100,000,000 None
Pollution Control Series F . 34,700,000 34,700,000
13-3/8% Series due
April 1, 1994 . . . . . . . 100,000,000 None
Pollution Control Series G . 122,615,000 122,615,000
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
<PAGE>
-6-
Principal Principal
Amount Amount
Series Issued Outstanding
------ ---------- -----------
8-1/8% Series due
November 15, 1993 . . . . . 100,000,000 None
Secured Medium-Term Notes,
Series B . . . . . . . . . 100,000,000 50,000,000
8-7/8% Series due
February 15, 2021 . . . . . 125,000,000 125,000,000
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
5-7/8% Series due
January 15, 2004 . . . . . 150,000,000 150,000,000
which bonds are also hereinafter sometimes called bonds of
the First through Sixty-fifth 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 two 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
<PAGE>
-7-
WHEREAS, the execution and delivery by the Company of
this Sixty-third Supplemental Indenture, and the terms of
the bonds of the Sixty-sixth and Sixty-seventh 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-third 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
<PAGE>
-8-
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-third 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
<PAGE>
-9-
specifically pledged under the Mortgage, as heretofore
supplemented, or this Sixty-third 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-
third 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-third
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-SIXTH SERIES OF BONDS
SECTION 1.(A)(I) There shall be a series of bonds
designated "Pollution Control Series L" (herein sometimes
referred to as the "Sixty-sixth 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
<PAGE>
-10-
respect to the matters hereinafter in this Section
specified. Bonds of the Sixty-sixth Series shall be dated
as in Section 10 of the Mortgage provided, and mature on May
1, 2024.
Bonds of the Sixty-sixth Series shall be issued as
fully registered bonds in denominations of Five Thousand
Dollars and, at the option of the Company, in any multiple
or multiples of Five Thousand Dollars (the exercise of such
option to be evidenced by the execution and delivery
thereof); they shall bear interest on each portion thereof
corresponding to particular Pollution Control Revenue
Refunding Bonds (Carolina Power & Light Company Project)
Series 1994A (hereinafter sometimes called the "Series A
Revenue Refunding Bonds") issued by The Wake County
Industrial Facilities and Pollution Control Financing
Authority (hereinafter sometimes called the "Authority")
under the Indenture of Trust (Series 1994A), dated as of May
1, 1994 (hereinafter sometimes called the "Series A Revenue
Refunding Bond Indenture"), between the Authority and First
Union National Bank of North Carolina, as trustee, relating
to the Series A Revenue Refunding Bonds, from the last
Interest Payment Date (as such term is defined in the Series
A Revenue Refunding Bond Indenture) to which interest on the
corresponding Series A Revenue Refunding Bonds has been paid
or, if no interest has been paid on the corresponding Series
A Revenue Refunding Bonds, then from the date of first
authentication by the Corporate Trustee of bonds of the
Sixty-sixth Series at the rate from time to time borne by
the corresponding Series A Revenue Refunding Bonds;
provided, however, that in no event shall the rate of
interest borne by the bonds of the Sixty-sixth Series exceed
15% per annum. Interest on the bonds of the Sixty-sixth
Series shall be payable on each Interest Payment Date for
the corresponding Series A Revenue Refunding Bonds and at
maturity. The principal of and interest on each said bond
shall 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.
(II) The bonds of the Sixty-sixth Series shall be
initially issued in the aggregate principal amount of
$72,600,000 to, and registered in the name of, the trustee
under the Series A Revenue Refunding Bond Indenture in order
to evidence in part the obligation of the Company to repay
loans of the proceeds of the sale of the Series A Revenue
Refunding Bonds made by the Authority to the Company
pursuant to the related Loan Agreement (Series 1994A), dated
as of May 1, 1994, to finance costs of refunding the
outstanding Pollution Control Revenue Bonds (Carolina Power
& Light Company Project) Series 1984A issued by the
Authority.
The obligation of the Company to make any payment of
the principal of or interest on the bonds of the Sixty-sixth
Series, whether at maturity, upon redemption or otherwise,
shall be reduced by the amount of any reduction under the
Series A Revenue Refunding Bond Indenture of the amount of
the corresponding payment required to be made by the
Authority thereunder in respect of the principal of or
interest on the Series A Revenue Refunding Bonds.
The Corporate Trustee may conclusively presume that the
obligation of the Company to pay the principal of and
interest on the bonds of the Sixty-sixth Series as the same
shall become due and payable shall have been fully satisfied
and discharged unless and until it shall have received a
written notice from the trustee under the Series A Revenue
Refunding Bond Indenture,
<PAGE>
-11-
signed by its President, a Vice President or a Trust
Officer, stating that the corresponding payment of principal
of or interest on the Series A Revenue Refunding Bonds has
become due and payable and has not been fully paid and, with
respect to principal of the Series A Revenue Refunding
Bonds, specifying the principal amount of Series A Revenue
Refunding Bonds then due and payable and the amount of funds
required to make such payment, and, with respect to interest
on the Series A Revenue Refunding Bonds, specifying the last
date to which interest has been paid, the applicable rate of
interest and the amount of funds required to make such
payment.
(III) In the event that any Series A Revenue Refunding
Bonds are to be redeemed pursuant to Section 3.01(d) of the
Series A Revenue Refunding Bond Indenture, bonds of the
Sixty-sixth Series, in a principal amount equal to the
principal amount of Series A Revenue Refunding Bonds so to
be redeemed, shall be redeemed by the Company, on the date
fixed for redemption of such Series A Revenue Refunding
Bonds, at the principal amount thereof plus accrued interest
to such redemption date.
The Corporate Trustee may conclusively presume that no
redemption of bonds of the Sixty-sixth Series is required
pursuant to this subsection (III) unless and until it shall
have received a written notice from the trustee under the
Series A Revenue Refunding Bond Indenture, signed by its
President, a Vice President or a Trust Officer, stating that
the Series A Revenue Refunding Bonds are to be redeemed
pursuant to Section 3.01(d) of the Series A Revenue
Refunding Bond Indenture and specifying the principal amount
and redemption date of the Series A Revenue Refunding Bonds
to be so redeemed. Said notice shall also contain a waiver
of notice of said redemption by the trustee under the Series
A Revenue Refunding Bond Indenture, as holder of all the
bonds of the Sixty-sixth Series then Outstanding.
Bonds of the Sixty-sixth Series shall not be redeemable
with cash deposited pursuant to the requirements of Section
39 of the Mortgage.
(IV) The Company hereby waives its right to have any
notice of redemption pursuant to subsection (III) of this
Section 1(A) state that such notice is subject to the
receipt of the redemption moneys by the Corporate Trustee
before the date fixed for redemption. Notwithstanding the
provisions of Section 52 of the Mortgage, any such notice
under such subsection shall not be conditional.
(V) At the option of the registered owner, any bonds
of the Sixty-sixth 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-sixth 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.
<PAGE>
-12-
Bonds of the Sixty-sixth Series shall not be
transferable except to any successor trustee under the
Series A Revenue Refunding Bond Indenture, any such transfer
to be made at the office or agency of the Company in the
Borough of Manhattan, The City of New York.
The Company hereby waives any right to make a charge
for any exchange or transfer of bonds of the Sixty-sixth
Series.
<PAGE>
-13-
SIXTY-SEVENTH SERIES OF BONDS
(B)(I) There shall be a series of bonds designated
"Pollution Control Series M" (herein sometimes referred to
as the "Sixty-seventh 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-seventh
Series shall be dated as in Section 10 of the Mortgage
provided, and mature on May 1, 2024.
Bonds of the Sixty-seventh Series shall be issued as
fully registered bonds in denominations of Five Thousand
Dollars and, at the option of the Company, in any multiple
or multiples of Five Thousand Dollars (the exercise of such
option to be evidenced by the execution and delivery
thereof); they shall bear interest on each portion thereof
corresponding to particular Pollution Control Revenue
Refunding Bonds (Carolina Power & Light Company Project)
Series 1994B (hereinafter sometimes called the "Series B
Revenue Refunding Bonds") issued by the Authority under the
Indenture of Trust (Series 1994B), dated as of May 1, 1994
(hereinafter sometimes called the "Series B Revenue
Refunding Bond Indenture"), between the Authority and First
Union National Bank of North Carolina, as trustee, relating
to the Series B Revenue Refunding Bonds, from the last
Interest Payment Date (as such term is defined in the Series
B Revenue Refunding Bond Indenture) to which interest on the
corresponding Series B Revenue Refunding Bonds has been paid
or, if no interest has been paid on the corresponding Series
B Revenue Refunding Bonds, then from the date of first
authentication by the Corporate Trustee of bonds of the
Sixty-seventh Series at the rate from time to time borne by
the corresponding Series B Revenue Refunding Bonds;
provided, however, that in no event shall the rate of
interest borne by the bonds of the Sixty-seventh Series
exceed 15% per annum. Interest on the bonds of the Sixty-
seventh Series shall be payable on each Interest Payment
Date for the corresponding Series B Revenue Refunding Bonds
and at maturity. The principal of and interest on each said
bond shall 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.
(II) The bonds of the Sixty-seventh Series shall be
initially issued in the aggregate principal amount of
$50,000,000 to, and registered in the name of, the trustee
under the Series B Revenue Refunding Bond Indenture, in
order to evidence in part the obligation of the Company to
repay loans of the proceeds of the sale of the Series B
Revenue Refunding Bonds made by the Authority to the Company
pursuant to the related Loan Agreement (Series 1994B), dated
as of May 1, 1994, to finance costs of refunding the
outstanding Pollution Control Revenue Bonds (Carolina Power
& Light Company Project) Series 1984A issued by the
Authority.
The obligation of the Company to make any payment of
the principal of or interest on the bonds of the Sixty-
seventh Series, whether at maturity, upon redemption or
otherwise, shall be reduced by the amount of any reduction
under the Series B Revenue Refunding Bond Indenture of the
amount of the corresponding payment required to be made by
the Authority thereunder in respect of the principal of or
interest on the Series B Revenue Refunding Bonds.
<PAGE>
-14-
The Corporate Trustee may conclusively presume that the
obligation of the Company to pay the principal of and
interest on the bonds of the Sixty-seventh Series as the
same shall become due and payable shall have been fully
satisfied and discharged unless and until it shall have
received a written notice from the trustee under the Series
B Revenue Refunding Bond Indenture, signed by its President,
a Vice President or a Trust Officer, stating that the
corresponding payment of principal of or interest on the
Series B Revenue Refunding Bonds has become due and payable
and has not been fully paid and, with respect to principal
of the Series B Revenue Refunding Bonds, specifying the
principal amount of Series B Revenue Refunding Bonds then
due and payable and the amount of funds required to make
such payment, and, with respect to interest on the Series B
Revenue Refunding Bonds, specifying the last date to which
interest has been paid, the applicable rate of interest and
the amount of funds required to make such payment.
(III) In the event that any Series B Revenue Refunding
Bonds are to be redeemed pursuant to Section 3.01(d) of the
Series B Revenue Refunding Bond Indenture, bonds of the
Sixty-seventh Series, in a principal amount equal to the
principal amount of Series B Revenue Refunding Bonds so to
be redeemed, shall be redeemed by the Company, on the date
fixed for redemption of such Series B Revenue Refunding
Bonds, at the principal amount thereof plus accrued interest
to such redemption date.
The Corporate Trustee may conclusively presume that no
redemption of bonds of the Sixty-seventh Series is required
pursuant to this subsection (III) unless and until it shall
have received a written notice from the trustee under the
Series B Revenue Refunding Bond Indenture, signed by its
President, a Vice President or a Trust Officer, stating that
the Series B Revenue Refunding Bonds are to be redeemed
pursuant to Section 3.01(d) of the Series B Revenue
Refunding Bond Indenture and specifying the principal amount
and redemption date of the Series B Revenue Refunding Bonds
to be so redeemed. Said notice shall also contain a waiver
of notice of said redemption by the trustee under the Series
B Revenue Refunding Bond Indenture, as holder of all the
bonds of the Sixty-seventh Series then Outstanding.
Bonds of the Sixty-seventh Series shall not be
redeemable with cash deposited pursuant to the requirements
of Section 39 of the Mortgage.
(IV) The Company hereby waives its right to have any
notice of redemption pursuant to subsection (III) of this
Section 1(B) state that such notice is subject to the
receipt of the redemption moneys by the Corporate Trustee
before the date fixed for redemption. Notwithstanding the
provisions of Section 52 of the Mortgage, any such notice
under such subsection shall not be conditional.
(V) At the option of the registered owner, any bonds
of the Sixty-seventh 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-seventh Series may bear such legends as
may be necessary to comply with any law or with any rules or
<PAGE>
-15-
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-seventh Series shall not be
transferable except to any successor trustee under the
Series B Revenue Refunding Bond Indenture, any such transfer
to be made at the office or agency of the Company in the
Borough of Manhattan, The City of New York.
The Company hereby waives any right to make a charge
for any exchange or transfer of bonds of the Sixty-seventh
Series.
ARTICLE II
CERTAIN PROVISIONS WITH RESPECT TO FUTURE ADVANCES
SECTION 2. Upon the filing of this Sixty-third
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 $2,361,421,000 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 III
MISCELLANEOUS PROVISIONS
SECTION 3. Subject to the amendments provided
for in this Sixty-third Supplemental Indenture, the
terms defined in the Mortgage, as heretofore supplemented,
shall, for all purposes of this Sixty-third Supplemental
Indenture, have the meanings specified in the Mortgage, as
heretofore supplemented.
<PAGE>
-16-
SECTION 4. 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-third 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-third 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-third
Supplemental Indenture.
SECTION 5. Subject to the provisions of Article XV and
Article XVI of the Mortgage, whenever in this Sixty-third
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-third 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 6. Nothing in this Sixty-third 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-third
Supplemental Indenture or any covenant, condition,
stipulation, promise or agreement hereof, and all the
covenants, conditions, stipulations, promises and agreements
in this Sixty-third 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 7. This Sixty-third 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.
<PAGE>
-17-
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/ Kathleen M. Curtis
-----------------------------
Kathleen M. Curtis
<PAGE>
-18-
THE BANK OF NEW YORK, as Trustee
By /s/ Mary Jane Morrissey
---------------------------
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
<PAGE>
-19-
STATE OF NORTH CAROLINA )
) SS.:
COUNTY OF WAKE )
This 9th day of May, 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 9th day of May, 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 KATHLEEN M. CURTIS, 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/ Kathleen M. Curtis
-----------------------------
Kathleen M. Curtis
Sworn to before me this
9th day of May, 1994
/s/ Donna M. Cassada
---------------------------------------
DONNA M. CASSADA
NOTARY PUBLIC, State of North Carolina
Wake County
My Commission Expires November 16, 1997
<PAGE>
-20-
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
This 9th day of May, A.D. 1994, personally came before
me, CHRISTIAN O. NAGLER, a Notary Public in and for the
County aforesaid, MARY JANE MORRISSEY, who, being by me duly
sworn, says that she 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 her in behalf
of said corporation by its authority duly given. And the
said MARY JANE MORRISSEY acknowledged the said writing to be
the act and deed of said corporation.
On the 9th day of May, in the year 1994, before me
personally came MARY JANE MORRISSEY, to me known, who, being
by me duly sworn, did depose and say that she resides in Pt.
Pleasant, New Jersey; that she is an Assistant Vice
President of THE BANK OF NEW YORK, one of the corporations
described in and which executed the above instrument; that
she knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it
was so affixed by order of the Board of Directors of said
corporation, and that she signed her name thereto by like
order.
I, 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 9th day of May, 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 9th day of May,
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
<PAGE>
-21-
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 MARY JANE MORRISSEY, 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
9th day of May, 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 4(g)
==========================================================================
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
----------------
____________ Supplemental Indenture
Providing among other things for
[First Mortgage Bonds, _% Series due _____________]
[First Mortgage Bonds, designated Secured Medium-Term Notes, Series ___]
(___________ Series)
----------------
Dated as of _____________
==========================================================================
<PAGE>
____________ SUPPLEMENTAL INDENTURE
INDENTURE, dated as of _____________, 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 ____________ 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
Sixty-second Supplemental Indenture . . January 15, 1994
Sixty-third Supplemental Indenture . . May 1, 1994
<F1>
[FN]
<F1> Here will be inserted additional executed supplemental indentures.
<txt>
which supplemental indentures were recorded in various Counties in the
States of North Carolina and South Carolina, and were indexed and cross-
indexed in the real and chattel mortgage or security interest records in
various Counties in the States of North Carolina and South Carolina; and
WHEREAS, the Mortgage and said First through ___________ Supplemental
Indentures were or are to be recorded in all Counties in the States of
North Carolina and South Carolina in which this ____________ 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 22,626,000
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 None
9-1/4% Series due June 1, 2008 . . . . . . 100,000,000 None
10-1/2% Series due May 15, 2009 . . . . . . 125,000,000 None
12-1/4% Series due November 1, 2009 . . . . 100,000,000 None
Pollution Control Series A . . . . . . . . 63,000,000 None
14-1/8% Series due April 1, 1987 . . . . . 125,000,000 None
Pollution Control Series B . . . . . . . . 50,000,000 None
Pollution Control Series C . . . . . . . . 6,000,000 None
11-5/8% Series due December 1, 1992 . . . . 100,000,000 None
Pollution Control Series D . . . . . . . . 48,485,000 48,485,000
Pollution Control Series E . . . . . . . . 5,970,000 5,970,000
12-7/8% Series due December 1, 2013 . . . . 100,000,000 None
Pollution Control Series F . . . . . . . . 34,700,000 34,700,000
13-3/8% Series due April 1, 1994 . . . . . 100,000,000 None
Pollution Control Series G . . . . . . . . $122,615,000 None
Pollution Control Series H . . . . . . . . 70,000,000 None
Pollution Control Series I . . . . . . . . 70,000,000 None
Pollution Control Series J . . . . . . . . 6,385,000 $1,795,000
Pollution Control Series K . . . . . . . . 2,580,000 2,580,000
Extendible Series due April 1, 1995 . . . . 125,000,000 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 50,000,000
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 None
7-7/8% Series due April 15, 2004 . . . . . 150,000,000 150,000,000
8.20% Series due July 1, 2022 . . . . . . . 150,000,000 150,000,000
6-3/4% Series due October 1, 2002 . . . . . 100,000,000 100,000,000
6-1/8% Series due February 1, 2000 . . . . 150,000,000 150,000,000
7-1/2% Series due March 1, 2023 . . . . . . 150,000,000 150,000,000
5-3/8% Series due July 1, 1998 . . . . . . 100,000,000 100,000,000
Secured Medium-Term Notes, Series C . . . . 200,000,000 200,000,000
6-7/8% Series due August 15, 2023 . . . . . 100,000,000 100,000,000
5-7/8% Series due January 15, 2004 . . . . 150,000,000 150,000,000
Pollution Control Series L . . . . . . . . 72,600,000 72,600,000
Pollution Control Series M . . . . . . . . 50,000,000 50,000,000
<F2>
[FN]
<F2>Here will be inserted additional outstanding Series.
<txt>
which bonds are also hereinafter sometimes called bonds of the First
through ____________ 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 __ 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
____________ Supplemental Indenture, and the terms of the bonds of the
___________ 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 ____________
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 ____________
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 ____________ 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 ____________ 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 ___________ 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
___________ SERIES OF BONDS
SECTION 1. There shall be a series of bonds designated "_% Series due
_____________" (herein sometimes referred to as the "___________ 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
___________ Series shall be initially issued in the aggregate principal
amount of $__________, mature on _____________, bear interest at the rate
of _% per annum, payable from _______, 199_, if the date of said bonds is
prior to _________, 199_, or, if the date of said bonds is after __________
199_, from the _______ or _________ next preceding the date of said bonds,
and thereafter semi-annually on _________ and _______ 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.
<F3>[SECTION 1. There shall be a series of bonds designated "Secured
Medium-Term Notes, Series _" (herein sometimes referred to as the
"____________ 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 ____________ Series shall be issued from time to
time in an aggregate principal amount not to exceed $___________, 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;
each bond of the ____________ Series shall mature on such date not less
than nine months nor more than 30 years from date of issue, shall bear
interest at such rate or rates (which may be either fixed or variable) and
have such other terms and provisions not inconsistent with the Mortgage as
the Board of Directors may determine in accordance with a Resolution filed
with the Corporate Trustee referring to this ____________ Supplemental
Indenture; 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. Interest
on bonds of the ____________ Series which bear interest at a fixed rate
shall be payable semiannually on _______ and _______ of each year and at
maturity (each an interest payment date). Interest on bonds of the
____________ Series which bear interest at a variable rate shall be payable
on the dates (each an interest payment date) established on the Issue Date
hereinafter specified with respect to such bonds and shall be set forth in
such bonds. Notwithstanding the foregoing, so long as there is no existing
default in the payment of interest on the bonds of the ____________ Series,
all bonds of the ____________ Series authenticated by the Corporate Trustee
after the Record Date hereinafter specified for any interest payment date,
and prior to such interest payment date (unless the Issue Date is after
such Record Date), shall be dated the date of authentication, but shall
bear interest from such interest payment date, and the person in whose name
any bond of the ____________ Series is registered at the close of business
on any Record Date with respect to any interest payment date shall be
entitled to receive the interest payable on such interest payment date,
notwithstanding the cancellation of such bond of the ____________ Series,
upon any transfer or exchange thereof subsequent to the Record Date and on
or prior to such interest payment date. If the Issue Date of the bonds of
the ____________ Series of a designated interest rate and maturity is after
such Record Date, such bonds shall bear interest from the Issue Date
(unless some other date is determined by the Board of Directors in
accordance with a Resolution filed with the Corporate Trustee referring to
this ____________ Supplemental Indenture) but payment of interest shall
commence on the second interest payment date succeeding the Issue Date.
"Record Date" for bonds of the ____________ Series which bear interest at a
fixed rate shall mean ______ for interest payable _________ and __________
for interest payable __________, and for bonds of the _____________ Series
which bear interest at a variable rate, the date 15 calendar days prior to
any interest payment date, provided that, interest payable on the maturity
date will be payable to the person to whom the principal thereof shall be
payable. "Issue Date" with respect to bonds of the ____________ Series of
a designated interest rate and maturity shall mean the date of first
authentication of bonds of such designated interest rate and maturity.]
[FN]
<F3>These provisions will be inserted in lieu of the first paragraph
of Section 1 above in any supplemental indenture relating to the
issuance of First Mortgage Bonds which are designated "Secured Medium-
Term Notes, Series _____".
<txt>
(I) Bonds of the ___________ Series shall be redeemable after
________, ____ at the option of the Company or by the application (either
at the option of the Company or pursuant to the requirements of the
Mortgage) of cash deposited with the Corporate Trustee pursuant to any of
the provisions of Section 38, Section 39 or Section 64 of the Mortgage or
with the Proceeds of Released Property in whole at any time, or in part
from time to time, prior to maturity, upon notice as provided in Sections
52 and 54 of the Mortgage (given by mail at least 30 days and not more than
90 days prior to the date fixed for redemption), at the following general
redemption prices, expressed in percentages of the principal amount of the
bonds to be redeemed:
GENERAL REDEMPTION PRICES
If redeemed during 12 months period ending _________,
together, in each case, with accrued interest to the date fixed for
redemption.
<F4>[(I) Bonds of the ____________ Series shall be redeemable at the
option of the Company or by the application (either at the option of the
Company or pursuant to the requirements of the Mortgage) of cash deposited
with the Corporate Trustee pursuant to any of the provisions of Section 38,
Section 39 or Section 64 of the Mortgage or with the Proceeds of Released
Property in whole at any time, or in part from time to time, prior to
maturity, upon notice as provided in Sections 52 and 54 of the Mortgage
(given by mail at least 30 days and not more than 90 days prior to the date
fixed for redemption), as the Board of Directors may determine in
accordance with a Resolution filed with the Corporate Trustee referring to
this ____________ Supplemental Indenture.]
[FN]
<F4>This provision will be inserted in lieu of clause (I) of Section 1
above in any supplemental indenture relating to the issuance of First
Mortgage Bonds which are designated "Secured Medium-Term Notes, Series
_____".
<txt>
(II) At the option of the registered owner, any bonds of the
___________ 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 <F5> [which have the same
Issue Date, maturity date, interest rate or rates, and redemption
provisions, if any]. The bonds of the ___________ 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.
[FN]
<F5>Bracketed language will be added in any supplemental indenture
relating to the issuance of First Mortgage Bonds which are designated
"Secured Medium-Term Notes, Series _____".
<txt>
Bonds of the ___________ 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 ___________ 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
<F6>SECTION 2. The Company covenants and agrees that, so long as
any of the bonds of the ___________ 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 199_ 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.
[FN]
<F6>At the option of the Company this Section may be replaced by the
bracketed Section.
<txt>
[SECTION 2. The Company covenants and agrees, that so long as any of
the bonds of the _____ Series remain Outstanding, the Company will declare
and pay dividends in cash or property on any shares of its common stock
only either (1) out of its Surplus or (2) in case there shall be no
Surplus, out of its net profits for the fiscal year in which the dividend
is declared and/or the preceding fiscal year. If the Capital of the
Company shall have been diminished by the depreciation in the value of its
property, or by losses, or otherwise, to an amount less than the aggregate
amount of the Capital represented by the issued and outstanding stock of
all classes having a preference upon the distribution of assets of the
Company, the Board of Directors shall not declare and pay out of such net
profits any dividends upon any shares of its common stock until the
deficiency in the amount of Capital represented by the issued and
outstanding stock of all classes having a preference upon the distribution
of assets shall have been repaired.
The term "Capital" shall mean that part of the consideration received
by the Company for any shares of its capital stock which has been
determined by a Board Resolution to be capital, or, if the Board of
Directors shall not have so determined, "Capital" shall mean an amount
equal to the aggregate par value of shares having a par value, plus the
amount of consideration for such shares without par value.
The term "Surplus" shall mean the excess of the net assets of the
Company over its Capital."]
ARTICLE III
CERTAIN PROVISIONS WITH RESPECT TO FUTURE ADVANCES
SECTION 3. Upon the filing of this ____________ 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 $_____________ 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
RESERVATION OF RIGHTS TO AMEND CERTAIN PROVISIONS
OF THE MORTGAGE
SECTION 4. The Company reserves the right, without action by holders
of bonds of ______ Series or of any subsequently created series to amend
the Mortgage, as heretofore amended and supplemented, as follows:
To amend subdivision (b) of clause (B) of Section 4 of the Mortgage by
adding the following words at the beginning thereof:
"ten-sevenths of"
SECTION 5. The Company reserves the right, without action by holders
of bonds of ______ Series or of any subsequently created series to amend
the Mortgage, as heretofore amended and supplemented, as follows:
To amend the second and third lines of clause (A) of Section 7 of the
Mortgage by replacing the phrase "within the fifteen (15) calendar months"
with the phrase "within the eighteen (18) calendar months".
SECTION 6. The Company reserves the right, without action by holders
of bonds of _____ Series or any subsequently created series to amend the
Mortgage, as heretofore amended and supplemented, as follows:
To amend the excepted property clause on page 121 of the Mortgage by
deleting the word "and" at the end of subdivision (3) and adding a
subdivision (5) immediately after the phrase "ordinary course of its
business;" to read as follows:
and "(5) any property which does not constitute Property
Additions, Funded Property or Funded Cash, as hereinafter defined;"
SECTION 7. The Company reserves the right, without action of holders
of bonds of _____ Series or of any subsequently created series to amend the
Mortgage, as heretofore amended and supplemented, as follows:
To eliminate subsection III of Section 38.
SECTION 8. The Company reserves the right, without action by holders
of bonds of _____ Series or of any subsequently created series, to amend
the Mortgage, as heretofore amended and supplemented, as follows:
To amend subsection 3(a) of Section 59 of the Mortgage to read as
follows:
"(a) a description of the property to be released;
To amend subsection 3(b) of Section 59 of the Mortgage to read as
follows:
"(b) (i) the Fair Value and (ii) the Cost (or as to Property
Additions constituting Funded Property of which the Fair Value to the
Company at the time the same became Funded Property was less than the
Cost as determined pursuant to Section 4 hereof, then such Fair Value
in lieu of Cost), in the opinion of the signers, of the property to be
released; and the Cost (or as to Property Additions constituting
Funded Property of which the Fair Value to the Company at the time the
same became Funded Property was less than the Cost as determined
pursuant to Section 4 hereof, then such Fair Value in lieu of Cost),
in the opinion of the signers, of any portion thereof that is Funded
Property;"
To amend the first six lines of subsection (4) of Section 59 of the
Mortgage to read as follows:
"(4) an amount in cash, to be held by the Corporate Trustee as
part of the Mortgaged and Pledged Property, equivalent to the amount,
if any, by which the Cost (or as to Property Additions constituting
Funded Property of which the Fair Value to the Company at the time the
same became Funded Property was less than the Cost as determined
pursuant to Section 4 hereof, then such Fair Value in lieu of Cost) of
the property to be released, as specified in the Engineer's
Certificate provided for in subdivision (3) above, exceed the
aggregate of the following items:"
To amend the first sentence of subsection (4)(c) of Section 59 of the
Mortgage by adding the following words at the beginning thereof:
"an amount equal to ten-sevenths of"
To amend Section 60 of the Mortgage by inserting "(I)" before the word
"Unless" in the first line thereof, and by adding the following subsection
(II) at the end of Section 60;
"(II) Unless the Company is in default in the payment of the
interest on any bonds then Outstanding hereunder or one or more of the
Defaults defined in Section 65 hereof shall have occurred and be
continuing, the Company may obtain the release of any of the Mortgaged
and Pledged Property that is not Funded Property, except cash then
held by the Corporate Trustee (provided, however, that Prior Lien
Bonds deposited with the Corporate Trustee shall not be released or
surrendered except as provided in Article IX hereof and obligations
secured by purchase money mortgage deposited with the Corporate
Trustee shall not be released except as provided in Section 61
hereof), and the Corporate Trustee shall release all its right, title
and interest in and to the same from the Lien hereof upon application
of the Company and receipt by the Corporate Trustee of the following
(in lieu of complying with the requirements of Section 59 hereof):
(1) a Treasurers' Certificate complying with the requirements of
Section 121 hereof and describing in reasonable detail the property to
be released and requesting such release, and stating:
(a) that the Company is not in default in the payment
of interest on any bonds then Outstanding hereunder and that no
Default has occurred and is continuing;
(b) that the property to be released is not Funded
Property;
(c) that (except in any case where a governmental body or
agency has exercised a right to order the Company to divest
itself of such property) such release is in the opinion of the
signers desirable in the conduct of the business of the Company;
and
(d) the amount of cash and/or principal amount of
obligations secured by purchase money mortgage received or to be
received for any portion of said property sold to any Federal,
State, County, Municipal or other governmental bodies or agencies
or public or semi-public corporations, districts, or authorities;
(2) an Engineer's Certificate, made and dated not more than
ninety (90) days prior to the date of such application, stating:
(a) a description of the property to be released;
(b) the Fair Value, in the opinion of the signers, of the
property (or securities) to be released;
(c) that in the opinion of the signers such release will
not impair the security under this Indenture in contravention of
the provisions hereof; and
(d) that the Company has Property Additions constituting
property that is not Funded Property (not including the Property
Additions then being released) of a Cost or Fair Value to the
Company (whichever is less) of not less than one dollar ($1)
(after making any deductions and any additions pursuant to the
provisions of Section 4 hereof) after deducting the Cost of the
property then being released;
(3) an Opinion of Counsel complying with the requirements of
Section 121 hereof and stating that all conditions precedent provided
for in this Indenture relating to the release of the property in
question have been complied with; and
(4) in case the Corporate Trustee is requested to release any
franchise, an Opinion of Counsel complying with the requirements of
Section 121 hereof and stating that in such Counsel's opinion such
release will not impair to any material extent the right of the
Company to operate any of its remaining properties."
SECTION 9. The Company reserves the right, without action of holders
of bonds of _____ Series or of any subsequently created series to make such
amendments to the Mortgage as heretofore amended and supplemented, and as
it may be amended pursuant to the Thirteenth Supplemental Indenture, as
shall be necessary in order to amend the indicated Sections of the
Mortgage, as such Sections are then in effect, to read as follows:
"SECTION 112. The holders of (a) a majority in principal amount
of the bonds Outstanding hereunder when such meeting is held or (b) if the
action proposed at said meeting adversely affects solely the rights of the
holders of one or more, but less than all, series of bonds then
Outstanding, then only a majority in principal amount of those bonds then
Outstanding so to be adversely affected must be present at such meeting in
person or by proxy in order to constitute a quorum for the transaction of
business, less than a quorum, however, having power to adjourn.
"SECTION 113. Subject to the provisions of Section 80 hereof,
any modification or alteration of this Indenture (including any indentures
supplemental hereto) and/or of the rights and obligations of the Company
and/or the rights of the holders of bonds and/or coupons issued hereunder
in any particular (including but not limited to the waiver of any past
Default, as defined in Section 65 hereof or other default, and its
consequences), may be made at a meeting of bondholders duly convened and
held in accordance with the provisions of this Article, by resolution duly
adopted (a) by the affirmative vote of the holders of a majority or more in
principal amount of the bonds Outstanding hereunder, or (b) if the rights
of one or more, but less than all, series of bonds then Outstanding are to
be adversely affected by action taken at such meeting, then only by
affirmative vote of the holders of a majority in principal amount of those
bonds so to be adversely affected and Outstanding hereunder when such
meeting is held, and in every case approved by Resolution of the Board of
Directors of the Company, as herein specified; provided, however, that no
such modification or alteration shall, without the consent of the holder of
any bond issued hereunder affected thereby, (1) impair or affect the right
of such holder to receive payment of the principal of (and premium, if any)
and interest on such bond, on or after the respective due dates expressed
in such bond, or to institute suit for the enforcement of any such payment
on or after such respective dates, or (2) permit the creation of any lien
ranking prior to, or on a parity with, the Lien of this Indenture with
respect to any of the Mortgaged and Pledged Property, or (3) permit the
deprivation of any non-assenting bondholder of a lien upon the Mortgaged
and Pledged Property for the security of his bonds (subject only to the
lien of taxes, assessments or governmental charges not then delinquent and
to any mortgage or other liens existing upon such property which are prior
hereto at the date of the calling of any such bondholders' meeting), or (4)
permit the reduction of the percentage required by the provisions of this
Section for the taking of any action under this Section with respect to any
bond Outstanding hereunder. For all purposes of this Article, the
Trustees, subject to the provisions of Sections 88 and 89 hereof, shall be
entitled to rely upon an Opinion of Counsel with respect to the extent, if
any, as to which any action taken at such meeting affects the rights under
this Indenture or under any indenture supplemental hereto of any holders of
bonds then Outstanding hereunder.
"Except for the purpose of waiving any past Default, as defined
in Section 65 hereof and its consequences, in which event the provisions of
Section 71 hereof shall be applicable, bonds owned and/or held by and/or
for account of and/or for the benefit or interest of the Company, or any
corporation of which the Company shall own twenty-five per centum (25%) or
more of the outstanding voting stock, shall not be deemed Outstanding for
the purpose of any vote or of any calculation of bonds Outstanding in this
Article XVIII provided for, except that, subject to the provisions of
Sections 88 and 89 hereof, for the purpose of determining whether the
Trustees shall be protected in relying on any such vote or calculation,
only bonds which the Trustees, or either of them, know are so owned and/or
held, shall be excluded.
"SECTION 116. (A) Anything in this Article contained to the
contrary notwithstanding, the Corporate Trustee shall accept the written
consent (in any number of instruments of similar tenor executed by
bondholders or by their attorneys appointed in writing) of the holders of a
majority or more in principal amount of the bonds Outstanding hereunder, or
if the rights of one or more, but less than all, series of bonds then
Outstanding are to be adversely affected by action taken pursuant to such
consent, then the Corporate Trustee shall accept the written consent of the
holders of a majority in principal amount of only such bonds so to be
adversely affected and Outstanding hereunder (at the time the last such
needed consent is delivered to the Corporate Trustee) in lieu of the
holding of a meeting pursuant to this Article and in lieu of all action at
such a meeting and with the same force and effect as a resolution duly
adopted in accordance with the provisions of Section 113 hereof.
"(B) Instruments of consent shall be witnessed or in the
alternative may (a) have the signature guaranteed by a bank or trust
company or a registered dealer in securities, (b) be acknowledged before a
Notary Public or other officer authorized to take acknowledgments, or (c)
have their genuineness otherwise established to the satisfaction of the
Corporate Trustee.
"The amount of bonds payable to bearer, and the series and serial
numbers thereof, held by a person executing an instrument of consent (or
whose attorney has executed an instrument of consent in his behalf), and
the date of his holding the same, may be proved either by exhibiting the
bonds themselves to the Corporate Trustee or by a certificate executed (i)
by any bank, or trust or insurance company organized under the laws of the
United States of America or of any state thereof, (ii) by any trustee,
secretary, administrator or other proper officer of any pension, welfare,
hospitalization or similar fund, (iii) by the United States of America, any
Territory thereof, the District of Columbia, any State of the United
States, any municipality in any State or Territory of the United States or
any public instrumentality of the United States, any State or Territory, or
(iv) by any other person or corporation satisfactory to the Corporate
Trustee. A bondholder in any of the foregoing categories may sign a
certificate in his own behalf.
"Each such certificate shall be dated and shall state in effect
that as of the date thereof a coupon bond or bonds of a specified series
and bearing a specified serial number or numbers was deposited with or
exhibited to the signer of such certificate. The holding by the person
named in any such certificate of any bond specified therein shall be
presumed to continue unless (1) any certificate bearing a later date issued
in respect of the same bond shall be produced, (2) the bond specified in
such certificate (or any bond or bonds issued in exchange or substitution
for such bond) shall be produced by another holder, or (3) the bond
specified in such certificate shall be registered as to principal or shall
have been surrendered in exchange for a fully registered bond registered in
the name of another holder. The Trustee may nevertheless in its discretion
require further proof in cases where it deems further proof desirable. The
ownership of registered bonds shall be proved by the registry books.
"(C) Until such time as the Corporate Trustee shall receive the
written consent of the necessary per centum in principal amount of the
bonds required by the provisions of subsection (A) above for action
contemplated by such consent, any holder of a bond, the serial number of
which is shown by the evidence to be included in the bonds the holders of
which have consented to such action, may, by filing written notice with the
Corporate Trustee at its principal office and upon proof of holding as
provided in subsection (B) above, revoke such consent so far as it concerns
such bond. Except as aforesaid, any such consent shall be conclusive and
binding upon such holder and upon all future holders of such bond (and any
bond issued in lieu thereof or exchanged therefor), irrespective of whether
or not any notation of such consent is made upon such bond, and in any
event any action taken by the holders of the percentage in aggregate
principal amount of the bonds specified in subsection (A) above in
connection with such action shall, subject to the provisions of the last
sentence of Section 114 hereof, be conclusively binding upon the Company,
the Trustee and the holders of all the bonds."]<F7>
[FN]
<F7> These provisions may be inserted in any subsequent supplemental
indenture.
<txt>
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 10. Subject to the amendments provided for in this
____________ Supplemental Indenture, the terms defined in the Mortgage, as
heretofore supplemented, shall, for all purposes of this ____________
Supplemental Indenture, have the meanings specified in the Mortgage, as
heretofore supplemented.
[SECTION __. Pursuant to the reservation of right in Section 6 of the
Ninth Supplemental Indenture, and all bonds issued prior to the Ninth
Supplemental Indenture having been retired, the Company hereby eliminates
the requirements of Section 64 of the Mortgage, as amended and
supplemented.]<F8>
[FN]
<F8>
This provision may be inserted in any subsequent supplemental indenture.
<txt>
[SECTION __. Pursuant to the reservation of right in Section 5 of the
Tenth Supplemental Indenture, and all bonds issued prior to the Tenth
Supplemental Indenture having been retired, the Company hereby eliminates
the requirements of Section 39 of the Mortgage, as amended and
supplemented.]<F9>
[FN]
<F9> This provision may be inserted in any subsequent supplemental
indenture delivered after the retirement of all Outstanding bonds of the 5
1/8% Series due 1996.
<txt>
<F10>[SECTION _. The holders of bonds of the ____________ Series
consent that the Company may, but shall not be obligated to, fix a record
date for the purpose of determining the holders of bonds of the __________
Series entitled to consent to any amendment, supplement or waiver. If a
record date is fixed, those persons who were holders at such record date
(or their duly designated proxies), and only those persons, shall be
entitled to consent to such amendment, supplement or waiver or to revoke
any consent previously given, whether or not such persons continue to be
holders after such record date. No such consent shall be valid or
effective for more than 90 days after such record date.]
[FN]
<F10>This provision may be inserted in any supplemental indenture relating
to the issuance of First Mortgage Bonds which are to be issued on a "book-
entry" basis.
<txt>
SECTION 11. 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 ___________ Series to the same extent as if such
paragraphs had been repeated in said Section 64 with the words "___________
Series" substituted therein wherever the figure and word "1965 Series"
occur.
SECTION 12. 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 ____________
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 ____________
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 ____________ Supplemental Indenture.
SECTION 13. Subject to the provisions of Article XV and Article XVI
of the Mortgage, whenever in this ____________ 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 ____________ 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 14. Nothing in this ____________ 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 ____________ Supplemental
Indenture or any covenant, condition, stipulation, promise or agreement
hereof, and all the covenants, conditions, stipulations, promises and
agreements in this ____________ 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 15. This ____________ 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.
<PAGE>
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 . . . . . . . . . . . . . .
_________
ATTEST:
. . . . . . . . . . . . . . . . . .
___________________
Executed, sealed and delivered by
CAROLINA POWER & LIGHT
COMPANY in the presence of:
. . . . . . . . . . . . . . . . . .
__________________
. . . . . . . . . . . . . . . . . .
_________________
<PAGE>
THE BANK OF NEW YORK, as Trustee
By . . . . . . . . . . . . . .
________________________
ATTEST:
. . . . . . . . . . . . . . . . . .
___________________
. . . . . . . . . . . (L.S.)
W.T. Cunningham
Executed, sealed and delivered
by THE BANK OF NEW YORK
and W.T. CUNNINGHAM
in the presence of:
. . . . . . . . . . . . . . . . . .
______________
. . . . . . . . . . . . . . . . . .
______________
<PAGE>
STATE OF NORTH CAROLINA)
) SS.:
COUNTY OF WAKE )
This ____ day of _____, A.D. 199_, personally came before me,
____________, a Notary Public in and for the County aforesaid,
_________________, who, being by me duly sworn, says that she is the
_________ 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 _____________
acknowledged the said writing to be the act and deed of said corporation.
On the ____ day of _____, in the year of 199_, before me personally
came _________, to me known, who, being by me duly sworn, did depose and
say that she resides at ____________________________, State of North
Carolina; that she is the _________ 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.
. . . . . . . . . . . . . . . . . .
__________________
NOTARY PUBLIC, State of North Carolina
Wake County
My Commission Expires _____________
STATE OF NORTH CAROLINA)
) SS.:
COUNTY OF WAKE )
Personally appeared before me __________________, 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
_________________, the _________, with ________________, an Assistant
Secretary, of said CAROLINA POWER & LIGHT COMPANY, sign and attest the
same, and that she, deponent, with _______________, witnessed the execution
and delivery thereof as the act and deed of said CAROLINA POWER & LIGHT
COMPANY.
. . . . . . . . . . . . . . . . .
__________________
Sworn to before me this
____ day of _____, 199_
. . . . . . . . . . . . . . . . . .
__________________
NOTARY PUBLIC, State of North Carolina
Wake County
My Commission Expires ____ __, ____
<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
This ____ day of _____, A.D. 199_, personally came before me,
_____________, a Notary Public in and for the County aforesaid,
_________________, 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
_________________ acknowledged the said writing to be the act and deed of
said corporation.
On the ____ day of _____, in the year 199_, before me personally came
________________, to me known, who, being by me duly sworn, did depose and
say that he resides in ________, ________; 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, ______________, 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 ____ day of _____, 199_, 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 ____ day of _____, 199_.
. . . . . . . . . . . . . . . . . .
______________
NOTARY PUBLIC, State of New York
No. _______
Qualified in ______ County
Certificate filed in New York County
Commission Expires ___ __, 199_
<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
Personally appeared before me ______________________, who, being duly
sworn, says that she saw the corporate seal of THE BANK OF NEW YORK affixed
to the above written instrument and that she also saw _________________, an
Assistant Vice President, with _____________, an Assistant Secretary, of
said THE BANK OF NEW YORK, sign and attest the same, and that she,
deponent, with ______________, witnessed the execution and delivery thereof
as the act and deed of said THE BANK OF NEW YORK.
Personally appeared before me ______________________, who, being duly
sworn, says that she 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 she,
deponent, with ______________, witnessed the execution thereof.
. . . . . . . . . . . . . . . . . .
______________
Sworn to before me this
____ day of _____, 199_
. . . . . . . . . . . . . . . . . .
__________________
NOTARY PUBLIC, State of New York
No. _____
Qualified in ______ County
Certificate filed in New York County
Commission Expires ____________
Exhibit 4(h)
__________________________________________
CAROLINA POWER & LIGHT COMPANY
TO
_________________________
Trustee
_________
Indenture
(For Unsecured [Subordinated] Debt Securities)
Dated as of ______________, 1995
__________________________________________
<PAGE>
TABLE OF CONTENTS
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITAL OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Definitions and Other Provisions of General Application . . . . . . . . 1
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent. . . . . . . . . . . . . . . . . . . . . 2
Authorized Officer. . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors. . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution. . . . . . . . . . . . . . . . . . . . . . . 2
Business Day. . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission. . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request" or "Company Order. . . . . . . . . . . . . . 3
Corporate Trust Office. . . . . . . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . 3
Discount Security . . . . . . . . . . . . . . . . . . . . . . 3
Dollar" or "$ . . . . . . . . . . . . . . . . . . . . . . . . 3
Eligible Obligations. . . . . . . . . . . . . . . . . . . . . 3
Event of Default. . . . . . . . . . . . . . . . . . . . . . . 3
Governmental Authority. . . . . . . . . . . . . . . . . . . . 3
Government Obligations. . . . . . . . . . . . . . . . . . . . 4
Holder. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . 4
Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officer's Certificate . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . . 6
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . 6
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment. . . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Security. . . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Price. . . . . . . . . . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . . . . . . . . . 7
Required Currency . . . . . . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . . . . 7
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . 7
Security Register" and "Security Registrar. . . . . . . . . . 7
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . 7
Special Record Date . . . . . . . . . . . . . . . . . . . . . 7
Stated Interest Rate. . . . . . . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . 8
Successor Corporation . . . . . . . . . . . . . . . . . . . . 8
Tranche . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 102. Compliance Certificates and Opinions . . . . . . . . 8
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . 9
SECTION 104. Acts of Holders. . . . . . . . . . . . . . . . . . . 10
SECTION 105. Notices, Etc. to Trustee and Company . . . . . . . . 11
SECTION 106. Notice to Holders of Securities; Waiver. . . . . . . 12
SECTION 107. Conflict with Trust Indenture Act. . . . . . . . . . 13
SECTION 108. Effect of Headings and Table of Contents . . . . . . 13
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . 13
SECTION 110. Separability Clause. . . . . . . . . . . . . . . . . 13
SECTION 111. Benefits of Indenture. . . . . . . . . . . . . . . . 13
SECTION 112. Governing Law. . . . . . . . . . . . . . . . . . . . 14
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . 14
ARTICLE TWO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Security Forms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . . . 14
SECTION 202. Form of Trustee's Certificate of Authentication. . . 15
ARTICLE THREE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
The Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . 15
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . 19
SECTION 303. Execution, Authentication, Delivery and Dating . . . 19
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . 22
SECTION 305. Registration, Registration of Transfer and
Exchange. . . . . . . . . . . . . . . . . . . . . . 22
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . 24
SECTION 307. Payment of Interest; Interest Rights Preserved . . . 24
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . . 26
SECTION 309. Cancellation by Security Registrar . . . . . . . . . 26
SECTION 310. Computation of Interest. . . . . . . . . . . . . . . 26
SECTION 311. Payment to Be in Proper Currency . . . . . . . . . . 27
SECTION 312. Extension of Interest Payment. . . . . . . . . . . . 27
ARTICLE FOUR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Redemption of Securities. . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 401. Applicability of Article . . . . . . . . . . . . . . 27
SECTION 402. Election to Redeem; Notice to Trustee. . . . . . . . 28
SECTION 403. Selection of Securities to Be Redeemed . . . . . . . 28
SECTION 404. Notice of Redemption . . . . . . . . . . . . . . . . 28
SECTION 405. Securities Payable on Redemption Date. . . . . . . . 30
SECTION 406. Securities Redeemed in Part. . . . . . . . . . . . . 30
ARTICLE FIVE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 501. Applicability of Article . . . . . . . . . . . . . . 30
SECTION 502. Satisfaction of Sinking Fund Payments with
Securities. .. . . . . . . . . . . . . . . . . . . . 31
SECTION 503. Redemption of Securities for Sinking Fund. . . . . . 31
ARTICLE SIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 601. Payment of Principal, Premium and Interest . . . . . 32
SECTION 602. Maintenance of Office or Agency. . . . . . . . . . . 32
SECTION 603. Money for Securities Payments to Be Held in Trust. . 33
SECTION 604. Corporate Existence. . . . . . . . . . . . . . . . . 34
SECTION 605. Maintenance of Properties. . . . . . . . . . . . . . 34
SECTION 606. Annual Officer's Certificate as to Compliance. . . . 34
SECTION 607. Waiver of Certain Covenants. . . . . . . . . . . . . 35
ARTICLE SEVEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Satisfaction and Discharge. . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 701. Satisfaction and Discharge of Securities . . . . . . 35
SECTION 702. Satisfaction and Discharge of Indenture. . . . . . . 38
SECTION 703. Application of Trust Money . . . . . . . . . . . . . 38
ARTICLE EIGHT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Events of Default; Remedies . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 801. Events of Default. . . . . . . . . . . . . . . . . . 39
SECTION 802. Acceleration of Maturity; Rescission and Annulment . 40
SECTION 803. Collection of Indebtedness and Suits for Enforcement
by Trustee. . . . . . . . . . . . . . . . . . . . . 42
SECTION 804. Trustee May File Proofs of Claim . . . . . . . . . . 42
SECTION 805. Trustee May Enforce Claims Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . 43
SECTION 806. Application of Money Collected . . . . . . . . . . . 43
SECTION 807. Limitation on Suits. . . . . . . . . . . . . . . . . 44
SECTION 808. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . 44
SECTION 809. Restoration of Rights and Remedies . . . . . . . . . 45
SECTION 810. Rights and Remedies Cumulative . . . . . . . . . . . 45
SECTION 811. Delay or Omission Not Waiver . . . . . . . . . . . . 45
SECTION 812. Control by Holders of Securities . . . . . . . . . . 45
SECTION 813. Waiver of Past Defaults. . . . . . . . . . . . . . . 46
SECTION 814. Undertaking for Costs. . . . . . . . . . . . . . . . 46
SECTION 815. Waiver of Stay or Extension Laws . . . . . . . . . . 47
ARTICLE NINE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
The Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 901. Certain Duties and Responsibilities. . . . . . . . . 47
SECTION 902. Notice of Defaults . . . . . . . . . . . . . . . . . 48
SECTION 903. Certain Rights of Trustee. . . . . . . . . . . . . . 49
SECTION 904. Not Responsible for Recitals or Issuance of
Securities. .. . . . . . . . . . . . . . . . . . . . 50
SECTION 905. May Hold Securities. . . . . . . . . . . . . . . . . 50
SECTION 906. Money Held in Trust. . . . . . . . . . . . . . . . . 50
SECTION 907. Compensation and Reimbursement . . . . . . . . . . . 50
SECTION 908. Disqualification; Conflicting Interests. . . . . . . 51
SECTION 909. Corporate Trustee Required; Eligibility. . . . . . . 51
SECTION 910. Resignation and Removal; Appointment of Successor. . 52
SECTION 911. Acceptance of Appointment by Successor . . . . . . . 54
SECTION 912. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 913. Preferential Collection of Claims Against Company. . 55
SECTION 914. Co-trustees and Separate Trustees. . . . . . . . . . 56
SECTION 915. Appointment of Authenticating Agent. . . . . . . . . 57
ARTICLE TEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Holders' Lists and Reports by Trustee and Company . . . . . . . . . . . 59
SECTION 1001. Lists of Holders. . . . . . . . . . . . . . . . . . 59
SECTION 1002. Reports by Trustee and Company. . . . . . . . . . . 59
ARTICLE ELEVEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Consolidation, Merger, Conveyance or Other Transfer . . . . . . . . . . 60
SECTION 1101. Company May Consolidate, Etc., Only on Certain
Terms. . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1102. Successor Corporation Substituted . . . . . . . . . 60
ARTICLE TWELVE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1201. Supplemental Indentures Without Consent of
Holders . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1202. Supplemental Indentures With Consent of Holders . . 63
SECTION 1203. Execution of Supplemental Indentures. . . . . . . . 64
SECTION 1204. Effect of Supplemental Indentures . . . . . . . . . 64
SECTION 1205. Conformity With Trust Indenture Act . . . . . . . . 65
SECTION 1206. Reference in Securities to Supplemental
Indentures. . . . . . . . . . . . . . . . . . . . . 65
SECTION 1207. Modification Without Supplemental Indenture . . . . 65
ARTICLE THIRTEEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Meetings of Holders; Action Without Meeting . . . . . . . . . . . . . . 65
SECTION 1301. Purposes for Which Meetings May Be Called . . . . . 65
SECTION 1302. Call, Notice and Place of Meetings. . . . . . . . . 66
SECTION 1303. Persons Entitled to Vote at Meetings. . . . . . . . 66
SECTION 1304. Quorum; Action. . . . . . . . . . . . . . . . . . . 67
SECTION 1305. Attendance at Meetings; Determination of Voting
Rights; Conduct and Adjournment of Meetings. .. . . 68
SECTION 1306. Counting Votes and Recording Action of Meetings . . 69
SECTION 1307. Action Without Meeting. . . . . . . . . . . . . . . 69
ARTICLE FOURTEEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Immunity of Incorporators, Stockholders, Officers and Directors . . . . 69
SECTION 1401. Liability Solely Corporate. . . . . . . . . . . . . 69
[ARTICLE FIFTEEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Subordination of Securities . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 1501. Securities Subordinate to Senior Indebtedness.. . . 70
SECTION 1502. Payment Over of Proceeds of Securities. . . . . . . 70
SECTION 1503. Disputes with Holders of Certain Senior
Indebtedness. . . . . . . . . . . . . . . . . . . . 72
SECTION 1504. Subrogation . . . . . . . . . . . . . . . . . . . . 73
SECTION 1505. Obligation of the Company Unconditional . . . . . . 73
SECTION 1506. Priority of Senior Indebtedness Upon Maturity . . . 74
SECTION 1507. Trustee as Holder of Senior Indebtedness. . . . . . 74
SECTION 1508. Notice to Trustee to Effectuate Subordination . . . 74
SECTION 1509. Modification, Extension, etc. of Senior
Indebtedness. . . . . . . . . . . . . . . . . . . . 74
SECTION 1510. Trustee Has No Fiduciary Duty to Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . 75
SECTION 1511. Paying Agents Other Than the Trustee. . . . . . . . 75
SECTION 1512. Rights of Holders of Senior Indebtedness Not
Impaired. . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1513. Effect of Subordination Provisions; Termination . . 75
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Signatures and Seals. . . . . . . . . . . . . . . . . . . . . . . . . . 77
Acknowledgements. . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
- ---------------
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
CAROLINA POWER & LIGHT COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of ____________________, 1995
Trust Indenture Act Section Indenture Section
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . 909
(a)(2) . . . . . . . . . . . . . . . . . . . 909
(a)(3) . . . . . . . . . . . . . . . . . . . 914
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . 908
910
Section 311 (a) . . . . . . . . . . . . . . . . . . . . 913
(b) . . . . . . . . . . . . . . . . . . . . 913
(c) . . . . . . . . . . . . . . . . . . . . 913
Section 312 (a) . . . . . . . . . . . . . . . . . . . . 1001
(b) . . . . . . . . . . . . . . . . . . . . 1001
(c) . . . . . . . . . . . . . . . . . . . . 1001
Section 313 (a) . . . . . . . . . . . . . . . . . . . . 1002
(b) . . . . . . . . . . . . . . . . . . . . 1002
(c) . . . . . . . . . . . . . . . . . . . . 1002
(d) . . . . . . . . . . . . . . . . . . . . 1002
Section 314 (a) . . . . . . . . . . . . . . . . . . . . 1002
(a)(4) . . . . . . . . . . . . . . . . . . . 606
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . 102
Section 315 (a) . . . . . . . . . . . . . . . . . . . . 901
903
(b) . . . . . . . . . . . . . . . . . . . . 902
(c) . . . . . . . . . . . . . . . . . . . . 901
(d) . . . . . . . . . . . . . . . . . . . . 901
(e) . . . . . . . . . . . . . . . . . . . . 814
Section 316 (a) . . . . . . . . . . . . . . . . . . . . 812
813
(a)(1)(A). . . . . . . . . . . . . . . . . . 802
812
(a)(1)(B). . . . . . . . . . . . . . . . . . 813
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . 808
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . 803
(a)(2) . . . . . . . . . . . . . . . . . . . 804
(b) . . . . . . . . . . . . . . . . . . . 603
Section 318 (a) . . . . . . . . . . . . . . . . . . . 107
<PAGE>
INDENTURE, dated as of _________________, between CAROLINA POWER &
LIGHT COMPANY, a corporation duly organized and existing under the laws of
the State of North Carolina (herein called the "Company"), having its
principal office at 411 Fayetteville Street, Raleigh, North Carolina 27601-
1748, and _______________________________________, a _____________________,
having its principal corporate trust office at
______________________________, as Trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
[subordinated]<F1> debentures, notes or other evidences of indebtedness
(herein called the "Securities"), to be issued in one or more series as
contemplated herein; and all acts necessary to make this Indenture a valid
agreement of the Company have been performed.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires, capitalized terms used
herein shall have the meanings assigned to them in Article One of this
Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
(b) all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles in the United States, and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are
generally accepted in the United States at the date of such
computation or, at the election of the Company from time to time,
at the date of the execution and delivery of this Indenture;
provided, however, that in determining generally accepted account-
ing principles applicable to the Company, the Company shall, to the
extent required, conform to any order, rule or regulation of any
administrative agency, regulatory authority or other governmental
body having jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Nine, are defined
in that Article.
"Act", when used with respect to any Holder of a Security, has
the meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee to act on
behalf of the Trustee to authenticate one or more series of Securities.
"Authorized Officer" means the Chairman of the Board, the
President, any Vice President, the Treasurer or any other duly authorized
officer of the Company.
"Board of Directors" means either the board of directors of
the Company or any committee thereof duly authorized to act in respect of
matters relating to this Indenture.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to a Place of Payment
or any other particular location specified in the Securities or this
Indenture, means any day, other than a Saturday or Sunday, which is not a day
on which banking institutions or trust companies in such Place of Payment or
other location are generally authorized or required by law, regulation or
executive order to remain closed, except as may be otherwise specified as
contemplated by Section 301.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the date of execution and delivery of this
Indenture such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body, if any, per-
forming such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by an Authorized Officer and de-
livered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be
principally administered, which office at the date of execution and delivery
of this Indenture is located at
_____________________________________________________.
"corporation" means a corporation, association, company, joint
stock company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 802.
"interest" with respect to a Discount Security means interest, if any, borne
by such Security at a Stated Interest Rate.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal
tender for the payment of public and private debts.
"Eligible Obligations" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a currency
other than Dollars or in a composite currency, such other
obligations or instruments as shall be specified with respect to
such Securities, as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 801.
"Governmental Authority" means the government of the United
States or of any State or Territory thereof or of the District of Columbia or
of any county, municipality or other political subdivision of any thereof, or
any department, agency, authority or other instrumentality of any of the
foregoing.
"Government Obligations" means:
(a) direct obligations of, or obligations the principal of
and interest on which are unconditionally guaranteed by, the United
States entitled to the benefit of the full faith and credit
thereof; and
(b) certificates, depositary receipts or other instruments
which evidence a direct ownership interest in obligations described
in clause (a) above or in any specific interest or principal
payments due in respect thereof; provided, however, that the
custodian of such obligations or specific interest or principal
payments shall be a bank or trust company (which may include the
Trustee or any Paying Agent) subject to Federal or state
supervision or examination with a combined capital and surplus of
at least $50,000,000; and provided, further, that except as may be
otherwise required by law, such custodian shall be obligated to pay
to the holders of such certificates, depositary receipts or other
instruments the full amount received by such custodian in respect
of such obligations or specific payments and shall not be permitted
to make any deduction therefrom.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indenture" means this instrument as originally executed and
delivered and as it may from time to time be supplemented or amended by one
or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of particular series
of Securities established as contemplated by Section 301.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal
becomes due and payable as provided in such Security or in this Indenture,
whether at the Stated Maturity, by declaration of acceleration, upon call for
redemption or otherwise.
"Officer's Certificate" means a certificate signed by an Authorized
Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, or other counsel acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities deemed to have been paid in accordance with
Section 701; and
(c) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it and the Company
that such Securities are held by a bona fide purchaser or
purchasers in whose hands such Securities are valid obligations of
the Company;
provided, however, that in determining whether or not the Holders of the re-
quisite principal amount of the Securities Outstanding under this Indenture,
or the Outstanding Securities of any series or Tranche, have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder or whether or not a quorum is present at a meeting of Holders of
Securities,
(x) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such
other obligor (unless the Company, such Affiliate or such
obligor owns all Securities Outstanding under this Indenture,
or all Outstanding Securities of each such series and each
such Tranche, as the case may be, determined without regard to
this clause (x)) shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon
any such determination as to the presence of a quorum, only
Securities which the Trustee knows to be so owned shall be so
disregarded; provided, however, that Securities so owned which
have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Trustee
the pledgee's right so to act with respect to such Securities
and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such
other obligor;
(y) the principal amount of a Discount Security that
shall be deemed to be Outstanding for such purposes shall be
the amount of the principal thereof that would be due and
payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant
to Section 802; and
(z) the principal amount of any Security which is
denominated in a currency other than Dollars or in a composite
currency that shall be deemed to be Outstanding for such
purposes shall be the amount of Dollars which could have been
purchased by the principal amount (or, in the case of a
Discount Security, the Dollar equivalent on the date
determined as set forth below of the amount determined as
provided in (y) above) of such currency or composite currency
evidenced by such Security, in each such case certified to the
Trustee in an Officer's Certificate, based (i) on the average
of the mean of the buying and selling spot rates quoted by
three banks which are members of the New York Clearing House
Association selected by the Company in effect at 11:00 A.M.
(New York time) in The City of New York on the fifth Business
Day preceding any such determination or (ii) if on such fifth
Business Day it shall not be possible or practicable to obtain
such quotations from such three banks, on such other
quotations or alternative methods of determination which shall
be as consistent as practicable with the method set forth in
(i) above;
provided, further, that, in the case of any Security the principal of which
is payable from time to time without presentment or surrender, the principal
amount of such Security that shall be deemed to be Outstanding at any time
for all purposes of this Indenture shall be the original principal amount
thereof less the aggregate amount of principal thereof theretofore paid.
"Paying Agent" means any Person, including the Company, authorized
by the Company to pay the principal of and premium, if any, or interest, if
any, on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series
from time to time any or all of the specific terms of which Securities,
including without limitation the rate or rates of interest, if any, thereon,
the Stated Maturity or Maturities thereof and the redemption provisions, if
any, with respect thereto, are to be determined by the Company or its agents
upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, trust or unincorporated organization or any Governmental Authority
thereof.
"Place of Payment", when used with respect to the Securities of any
series, or tranche thereof, means the place or places, specified as contem-
plated by Section 301, at which, subject to Section 602, principal of and
premium, if any, and interest, if any, on the Securities of such series or
tranche are payable.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed (to the extent lawful) to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Required Currency" has the meaning specified in Section 311.
"Responsible Officer", when used with respect to the Trustee, means
any officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
["Senior Indebtedness" means all obligations (other than non-
recourse obligations and the indebtedness issued under this Indenture) of, or
guaranteed or assumed by, the Company for borrowed money, including both
senior and subordinated indebtedness for borrowed money (other than the
Securities), or for the payment of money relating to any lease which is
capitalized on the consolidated balance sheet of the Company and its
subsidiaries in accordance with generally accepted accounting principles as
in effect from time to time, or evidenced by bonds, debentures, notes or
other similar instruments, and in each case, amendments, renewals,
extensions, modifications and refundings of any such indebtedness or
obligations, whether existing as of the date of this Indenture or
subsequently incurred by the Company.]<F2>
"Special Record Date" for the payment of any Defaulted Interest on
the Securities of any series means a date fixed by the Trustee pursuant to
Section 307.
"Stated Interest Rate" means a rate (whether fixed or variable) at
which an obligation by its terms is stated to bear simple interest. Any
calculation or other determination to be made under this Indenture by
reference to the Stated Interest Rate on a Security shall be made without
regard to the effective interest cost to the Company of such Security and
without regard to the Stated Interest Rate on, or the effective cost to the
Company of, any other indebtedness the Company's obligations in respect of
which are evidenced or secured in whole or in part by such Security.
"Stated Maturity", when used with respect to any obligation or any
installment of principal thereof or interest thereon, means the date on which
the principal of such obligation or such installment of principal or interest
is stated to be due and payable (without regard to any provisions for
redemption, prepayment, acceleration, purchase or extension).
"Successor Corporation" has the meaning set forth in Section 1301.
"Tranche" means a group of Securities which (a) are of the same
series and (b) have identical terms except as to principal amount and/or date
of issuance.
"Trust Indenture Act" means, as of any time, the Trust Indenture
Act of 1939, or any successor statute, as in effect at such time.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of any
series shall means the Trustee with respect to Securities of that series.
"United States" means the United States of America, its
Territories, its possessions and other areas subject to its political juris-
diction.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall, if requested by the
Trustee, furnish to the Trustee an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall include:
(a) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such Person,
such Person has made such examination or investigation as is
necessary to enable such Person to express an informed opinion as
to whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such officer's
certificate or opinion are based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever, subsequent to the receipt by the Trustee of any
Board Resolution, Officer's Certificate, Opinion of Counsel or other document
or instrument, a clerical, typographical or other inadvertent or
unintentional error or omission shall be discovered therein, a new document
or instrument may be substituted therefor in corrected form with the same
force and effect as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution and/or delivery
thereof, such substitute document or instrument shall be deemed to have been
executed and/or delivered as of the date or dates required with respect to
the document or instrument for which it is substituted. Anything in this
Indenture to the contrary notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at the request of the
Company which could not have been taken had the original document or
instrument not contained such error or omission, the action so taken shall
not be invalidated or otherwise rendered ineffective but shall be and remain
in full force and effect, except to the extent that such action was a result
of willful misconduct or bad faith. Without limiting the generality of the
foregoing, any Securities issued under the authority of such defective
document or instrument shall nevertheless be the valid obligations of the
Company entitled to the benefits of this Indenture equally and ratably with
all other Outstanding Securities, except as aforesaid.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, election, waiver or other action provided by this
Indenture to be made, given or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly
appointed in writing or, alternatively, may be embodied in and
evidenced by the record of Holders voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting
of Holders duly called and held in accordance with the provisions
of Article Thirteen, or a combination of such instruments and any
such record. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments and so
voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 901) conclusive
in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders
shall be proved in the manner provided in Section 1306.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof or may be proved in any
other manner which the Trustee and the Company deem sufficient.
Where such execution is by a signer acting in a capacity other than
his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority.
(c) The principal amount (except as otherwise contemplated in
clause (y) of the proviso to the definition of Outstanding) and
serial numbers of Securities held by any Person, and the date of
holding the same, shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind every
future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such
Security.
(e) Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite percentage
of principal amount of Securities for the action contemplated by
such instruments, any such instrument executed and delivered by or
on behalf of a Holder may be revoked with respect to any or all of
such Securities by written notice by such Holder or any subsequent
Holder, proven in the manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may, and shall
if required by the Trustee, bear a notation in form approved by the
Trustee as to any action taken by such Act of Holders. If the
Company shall so determine, new Securities of any series, or any
Tranche thereof, so modified as to conform, in the opinion of the
Trustee and the Company, to such action may be prepared and
executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series or
Tranche.
(g) If the Company shall solicit from Holders any request,
demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, by Board Resolution, fix in
advance a record date for the determination of Holders entitled to
give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no
obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other
Act may be given before or after such record date, but only the
Holders of record at the close of business on the record date shall
be deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of the Outstanding Securities
have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and
for that purpose the Outstanding Securities shall be computed as of
the record date.
SECTION 105. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or filed
with, the Trustee by any Holder or by the Company, or the Company by the
Trustee or by any Holder, shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and delivered
personally to an officer or other responsible employee of the addressee, or
transmitted by facsimile transmission, telex or other direct written
electronic means to such telephone number or other electronic communications
address as the parties hereto shall from time to time designate, or
transmitted by registered mail, charges prepaid, to the applicable address
set opposite such party's name below or to such other address as either party
hereto may from time to time designate:
If to the Trustee, to:
Attention:
Telephone:
Telecopy:
If to the Company, to:
Carolina Power & Light Company
411 Fayetteville Street
Raleigh, North Carolina 27601-1768
Attention:
Telephone: (919) 546-____
Telecopy:
Any communication contemplated herein shall be deemed to have
been made, given, furnished and filed if personally delivered, on the date of
delivery, if transmitted by facsimile transmission, telex or other direct
written electronic means, on the date of transmission, and if transmitted by
registered mail, on the date of receipt.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given, and shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event,
at the address of such Holder as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.
Any notice required by this Indenture may be waived in writing
by the Person entitled to receive such notice, either before or after the
event otherwise to be specified therein, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or deemed to be
included in this Indenture by, or is otherwise governed by, any of the
provisions of the Trust Indenture Act, such other provision shall control;
and if any provision hereof otherwise conflicts with the Trust Indenture Act,
the Trust Indenture Act shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings in this Indenture and the
Table of Contents are for convenience only and shall not affect the construc-
tion hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto, their
successors hereunder, the Holders, [and so long as the notice described in
Section 1513 hereof has not been given, the holders of Senior
Indebtedness,]<F3> any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York, except to the
extent that the law of any other jurisdiction shall be mandatorily
applicable.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at any Place
of Payment, then (notwithstanding any other provision of this Indenture or of
the Securities other than a provision in Securities of any series, or any
Tranche thereof, or in the Board Resolution or Officer's Certificate which
establishes the terms of the Securities of such series or Tranche, which
specifically states that such provision shall apply in lieu of this Section)
payment of interest or principal and premium, if any, need not be made at
such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment [, except that if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day in each case]<F4> with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, and, if such payment is made or duly provided for on such
Business Day, no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, to such Business Day.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The definitive Securities of each series shall be in
substantially the form or forms thereof established in the indenture
supplemental hereto establishing such series or in a Board Resolution
establishing such series, or in an Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities.
If the form or forms of Securities of any series are established in a Board
Resolution or in an Officer's Certificate pursuant to a Board Resolution,
such Board Resolution and Officer's Certificate, if any, shall be delivered
to the Trustee at or prior to the delivery of the Company Order contemplated
by Section 303 for the authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section 301, the
Securities of each series shall be issuable in registered form without
coupons. The definitive Securities shall be produced in such manner as shall
be determined by the officers executing such Securities, as evidenced by
their execution thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
_________________________________
as Trustee
By: _____________________________
Authorized Officer
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. Subject
to the last paragraph of this Section, prior to the authentication and
delivery of Securities of any series there shall be established by
specification in a supplemental indenture or in a Board Resolution, or in an
Officer's Certificate pursuant to a supplemental indenture or a Board
Resolution:
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all
other series);
(b) any limit upon the aggregate principal amount of the
Securities of such series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of the series pursuant to Section 304,
305, 306, 406 or 1206 and, except for any Securities which,
pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(c) the Person or Persons (without specific identification)
to whom interest on Securities of such series, or any Tranche
thereof, shall be payable on any Interest Payment Date, if other
than the Persons in whose names such Securities (or one or more
Predecessor Securities) are registered at the close of business on
the Regular Record Date for such interest;
(d) the date or dates on which the principal of the
Securities of such series or any Tranche thereof, is payable or any
formulary or other method or other means by which such date or
dates shall be determined, by reference or otherwise (without
regard to any provisions for redemption, prepayment, acceleration,
purchase or extension);
(e) the rate or rates at which the Securities of such series,
or any Tranche thereof, shall bear interest, if any (including the
rate or rates at which overdue principal shall bear interest, if
different from the rate or rates at which such Securities shall
bear interest prior to Maturity, and, if applicable, the rate or
rates at which overdue premium or interest shall bear interest, if
any), or any formulary or other method or other means by which such
rate or rates shall be determined, by reference or otherwise; the
date or dates from which such interest shall accrue; the Interest
Payment Dates on which such interest shall be payable and the
Regular Record Date, if any, for the interest payable on such
Securities on any Interest Payment Date; [; the right of the
Company, if any, to extend the interest payment periods and the
duration of any such extension as contemplated by Section 312]<F5>
and the basis of computation of interest, if other than as provided
in Section 310;
(f) the place or places at which or methods by which (1) the
principal of and premium, if any, and interest, if any, on
Securities of such series, or any Tranche thereof, shall be
payable, (2) registration of transfer of Securities of such series,
or any Tranche thereof, may be effected, (3) exchanges of
Securities of such series, or any Tranche thereof, may be effected
and (4) notices and demands to or upon the Company in respect of
the Securities of such series, or any Tranche thereof, and this
Indenture may be served; the Security Registrar for such series;
and if such is the case, that the principal of such Securities
shall be payable without presentment or surrender thereof;
(g) the period or periods within which, or the date or dates
on which, the price or prices at which and the terms and conditions
upon which the Securities of such series, or any Tranche thereof,
may be redeemed, in whole or in part, at the option of the Company
and any restrictions on such redemptions, including but not limited
to a restriction on a partial redemption by the Company of the
Securities of any series, or any Tranche thereof, resulting in
delisting of such Securities from any national exchange;
(h) the obligation or obligations, if any, of the Company to
redeem or purchase the Securities of such series, or any Tranche
thereof, pursuant to any sinking fund or other mandatory redemption
provisions or at the option of a Holder thereof and the period or
periods within which or the date or dates on which, the price or
prices at which and the terms and conditions upon which such
Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and applicable exceptions to the
requirements of Section 404 in the case of mandatory redemption or
redemption at the option of the Holder;
(i) the denominations in which Securities of such series, or
any Tranche thereof, shall be issuable if other than denominations
of $1,000 and any integral multiple thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of and premium, if
any, and interest, if any, on the Securities of such series, or any
Tranche thereof, shall be payable (if other than in Dollars);
(k) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof, are
to be payable, at the election of the Company or a Holder thereof,
in a coin or currency other than that in which the Securities are
stated to be payable, the period or periods within which and the
terms and conditions upon which, such election may be made;
(l) if the principal of or premium, if any, or interest on
the Securities of such series, or any Tranche thereof, are to be
payable, or are to be payable at the election of the Company or a
Holder thereof, in securities or other property, the type and
amount of such securities or other property, or the formulary or
other method or other means by which such amount shall be
determined, and the period or periods within which, and the terms
and conditions upon which, any such election may be made;
(m) if the amount payable in respect of principal of or
premium, if any, or interest, if any, on the Securities of such
series, or any Tranche thereof, may be determined with reference to
an index or other fact or event ascertainable outside this
Indenture, the manner in which such amounts shall be determined to
the extent not established pursuant to clause (e) of this
paragraph;
(n) if other than the principal amount thereof, the portion
of the principal amount of Securities of such series, or any
Tranche thereof, which shall be payable upon declaration of ac-
celeration of the Maturity thereof pursuant to Section 802;
(o) any Events of Default, in addition to those specified in
Section 801, with respect to the Securities of such series, and any
covenants of the Company for the benefit of the Holders of the
Securities of such series, or any Tranche thereof, in addition to
those set forth in Article Six;
(p) the terms, if any, pursuant to which the Securities of
such series, or any Tranche thereof, may be converted into or
exchanged for shares of capital stock or other securities of the
Company or any other Person;
(q) the obligations or instruments, if any, which shall be
considered to be Eligible Obligations in respect of the Securities
of such series, or any Tranche thereof, denominated in a currency
other than Dollars or in a composite currency, and any additional
or alternative provisions for the reinstatement of the Company's
indebtedness in respect of such Securities after the satisfaction
and discharge thereof as provided in Section 701;
(r) if the Securities of such series, or any Tranche thereof,
are to be issued in global form, (i) any limitations on the rights
of the Holder or Holders of such Securities to transfer or exchange
the same or to obtain the registration of transfer thereof, (ii)
any limitations on the rights of the Holder or Holders thereof to
obtain certificates therefor in definitive form in lieu of
temporary form and (iii) any and all other matters incidental to
such Securities;
(s) if the Securities of such series, or any Tranche thereof,
are to be issuable as bearer securities, any and all matters
incidental thereto which are not specifically addressed in a
supplemental indenture as contemplated by clause (g) of Section
1201;
(t) to the extent not established pursuant to clause (r) of
this paragraph, any limitations on the rights of the Holders of the
Securities of such Series, or any Tranche thereof, to transfer or
exchange such Securities or to obtain the registration of transfer
thereof; and if a service charge will be made for the registration
of transfer or exchange of Securities of such series, or any
Tranche thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities of such
series, or any Tranche thereof; and
(v) any other terms of the Securities of such series, or any
Tranche thereof, not inconsistent with the provisions of this
Indenture.
[The Securities of each series, or any Tranche thereof, shall
be subordinated in the right of payment to Senior Indebtedness as provided in
Article Fifteen.]<F6>
With respect to Securities of a series subject to a Periodic
Offering, the indenture supplemental hereto or the Board Resolution which
establishes such series, or the Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, as the case may be, may provide
general terms or parameters for Securities of such series and provide either
that the specific terms of Securities of such series, or any Tranche thereof,
shall be specified in a Company Order or that such terms shall be determined
by the Company or its agents in accordance with procedures specified in a
Company Order as contemplated by the clause (b) of the third paragraph of
Section 303.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, the Securities
of each series shall be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, the Securities
shall be executed on behalf of the Company by an Authorized Officer and may
have the corporate seal of the Company affixed thereto or reproduced thereon
attested by any other Authorized Officer. The signature of any or all of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the time of execution Authorized Officers of the
Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities.
The Trustee shall authenticate and deliver Securities of a
series, for original issue, at one time or from time to time in accordance
with the Company Order referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the form or
forms and terms of such series, as provided in Sections 201 and
301;
(b) a Company Order requesting the authentication and
delivery of such Securities and, to the extent that the terms of
such Securities shall not have been established in an indenture
supplemental hereto or in a Board Resolution, or in an Officer's
Certificate pursuant to a supplemental indenture or Board
Resolution, all as contemplated by Sections 201 and 301, either (i)
establishing such terms or (ii) in the case of Securities of a
series subject to a Periodic Offering, specifying procedures,
acceptable to the Trustee, by which such terms are to be
established (which procedures may provide, to the extent acceptable
to the Trustee, for authentication and delivery pursuant to oral or
electronic instructions from the Company or any agent or agents
thereof, which oral instructions are to be promptly confirmed
electronically or in writing), in either case in accordance with
the instrument or instruments delivered pursuant to clause (a)
above;
(c) the Securities of such series, executed on behalf of the
Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) that the form or forms of such Securities have been
duly authorized by the Company and have been established in
conformity with the provisions of this Indenture;
(ii) that the terms of such Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture; and
(iii) that such Securities, when authenticated and
delivered by the Trustee and issued and delivered by the
Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will have been duly issued under
this Indenture and will constitute valid and legally binding
obligations of the Company, entitled to the benefits provided
by this Indenture, and enforceable in accordance with their
terms, subject, as to enforcement, to laws relating to or
affecting generally the enforcement of creditors' rights,
including, without limitation, bankruptcy and insolvency laws
and to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or
at law);
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of such
Securities (provided that such Opinion of Counsel addresses the
authentication and delivery of all Securities of such series) and that in
lieu of the opinions described in clauses (ii) and (iii) above Counsel may
opine that:
(x) when the terms of such Securities shall have been
established pursuant to a Company Order or Orders or pursuant
to such procedures (acceptable to the Trustee) as may be
specified from time to time by a Company Order or Orders, all
as contemplated by and in accordance with the instrument or
instruments delivered pursuant to clause (a) above, such terms
will have been duly authorized by the Company and will have
been established in conformity with the provisions of this
Indenture; and
(y) such Securities, when authenticated and delivered by
the Trustee in accordance with this Indenture and the Company
Order or Orders or specified procedures referred to in
paragraph (x) above and issued and delivered by the Company in
the manner and subject to any conditions specified in such
Opinion of Counsel, will have been duly issued under this In-
denture and will constitute valid and legally binding obliga-
tions of the Company, entitled to the benefits provided by the
Indenture, and enforceable in accordance with their terms,
subject, as to enforcement, to laws relating to or affecting
generally the enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency laws and to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization by the
Company of any of such Securities, the form and terms thereof and the
legality, validity, binding effect and enforceability thereof, upon the
Opinion of Counsel and other documents delivered pursuant to Sections 201 and
301 and this Section, as applicable, at or prior to the time of the first
authentication of Securities of such series unless and until such opinion or
other documents have been superseded or revoked or expire by their terms. In
connection with the authentication and delivery of Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to assume that
the Company's instructions to authenticate and deliver such Securities do not
violate any rules, regulations or orders of any Governmental Authority having
jurisdiction over the Company.
If the form or terms of the Securities of any series have been
established by or pursuant to a Board Resolution or an Officer's Certificate
as permitted by Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance of such Securities pursuant to
this Indenture will affect the Trustee's own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, each Security
shall be dated the date of its authentication.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, no Security
shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or its agent by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder to the Company, or any Person acting on its behalf, but shall never
have been issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309 together
with a written statement (which need not comply with Section 102 and need not
be accompanied by an Opinion of Counsel) stating that such Security has never
been issued and sold by the Company, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits hereof.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, or any Tranche thereof, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which
are printed, lithographed, typewritten, mimeographed or otherwise produced,
in any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities; provided, however, that temporary Securities need not recite
specific redemption, sinking fund, conversion or exchange provisions.
Unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, after the
preparation of definitive Securities of such series or Tranche, the temporary
Securities of such series or Tranche shall be exchangeable, without charge to
the Holder thereof, for definitive Securities of such series or Tranche upon
surrender of such temporary Securities at the office or agency of the Company
maintained pursuant to Section 602 in a Place of Payment for such Securities.
Upon such surrender of temporary Securities, the Company shall, except as
aforesaid, execute and the Trustee shall authenticate and deliver in exchange
therefor definitive Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount.
Until exchanged in full as hereinabove provided, temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and Tranche and of like
tenor authenticated and delivered hereunder.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept in each office designated
pursuant to Section 602, with respect to the Securities of each series or any
Tranche thereof, a register (all registers kept in accordance with this
Section being collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities of such series or Tranche and the
registration of transfer thereof. The Company shall designate one Person to
maintain the Security Register for the Securities of each series on a
consolidated basis, and such Person is referred to herein, with respect to
such series, as the "Security Registrar." Anything herein to the contrary
notwithstanding, the Company may designate one or more of its offices as an
office in which a register with respect to the Securities of one or more
series, or any Tranche or Tranches thereof, shall be maintained, and the
Company may designate itself the Security Registrar with respect to one or
more of such series. The Security Register shall be open for inspection by
the Trustee and the Company at all reasonable times.
Except as otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche thereof, upon
surrender for registration of transfer of any Security of such series or
Tranche at the office or agency of the Company maintained pursuant to Section
602 in a Place of Payment for such series or Tranche, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same
series and Tranche, of authorized denominations and of like tenor and
aggregate principal amount.
Except as otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche thereof, any
Security of such series or Tranche may be exchanged at the option of the
Holder, for one or more new Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at any such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities delivered upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Trustee or
the Security Registrar) be duly endorsed or shall be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Trustee or
the Security Registrar, as the case may be, duly executed by the Holder
thereof or his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section 301 with
respect to Securities of any series, or any Tranche thereof, no service
charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with
any registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute or to provide for
the registration of transfer of or the exchange of (a) Securities of any
series, or any Tranche thereof, during a period of 15 days immediately
preceding the date notice is to be given identifying the serial numbers of
the Securities of such series or Tranche called for redemption or (b) any
Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in ex-
change therefor a new Security of the same series, and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a)
evidence to their satisfaction of the ownership of and the destruction, loss
or theft of any Security and (b) such security or indemnity as may be
reasonably required by them to save each of them and any agent of either of
them harmless, then, in the absence of notice to the Company or the Trustee
that such Security is held by a Person purporting to be the owner of such
Security, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and Tranche, and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new
Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone
other than the Holder of such new Security, and any such new Security shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of such series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, interest on
any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest.
[Subject to Section 312]<F7> any interest on any Security of
any series which is payable, but is not punctually paid or duly provided for,
on any Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the related Regular Record
Date by virtue of having been such Holder, and such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in clause (a)
or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered
at the close of business on a date (herein called a "Special Record
Date") for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each Security of such series and the date of the pro-
posed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the pay-
ment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and
at the expense of the Company, shall promptly cause notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at the address of such Holder
as it appears in the Security Register, not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date.
(b) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Security is registered as the
absolute owner of such Security for the purpose of receiving payment of
principal of and premium, if any, and (subject to Sections 305 and 307)
interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to
the contrary.
SECTION 309. Cancellation by Security Registrar.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any Person
other than the Security Registrar, be delivered to the Security Registrar
and, if not theretofore canceled, shall be promptly canceled by the Security
Registrar. The Company may at any time deliver to the Security Registrar for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever or which the
Company shall not have issued and sold, and all Securities so delivered shall
be promptly canceled by the Security Registrar. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section, except as expressly permitted by this Indenture.
All canceled Securities held by the Security Registrar shall be disposed of
in accordance with a Company Order delivered to the Security Registrar and
the Trustee, and the Security Registrar shall promptly deliver a certificate
of disposition to the Trustee and the Company unless, by a Company Order,
similarly delivered, the Company shall direct that canceled Securities be
returned to it. The Security Registrar shall promptly deliver evidence of
any cancellation of a Security in accordance with this Section 309 to the
Trustee and the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, or any Tranche thereof, interest on the
Securities of each series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months and on the basis of the actual number of
days elapsed within any month in relation to the deemed 30 days of such
month.
SECTION 311. Payment to Be in Proper Currency.
In the case of the Securities of any series, or any Tranche
thereof, denominated in any currency other than Dollars or in a composite
currency (the "Required Currency"), except as otherwise specified with
respect to such Securities as contemplated by Section 301, the obligation of
the Company to make any payment of the principal thereof, or the premium or
interest thereon, shall not be discharged or satisfied by any tender by the
Company, or recovery by the Trustee, in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in
the Trustee timely holding the full amount of the Required Currency then due
and payable. If any such tender or recovery is in a currency other than the
Required Currency, the Trustee may take such actions as it considers appro-
priate to exchange such currency for the Required Currency. The costs and
risks of any such exchange, including without limitation the risks of delay
and exchange rate fluctuation, shall be borne by the Company, the Company
shall remain fully liable for any shortfall or delinquency in the full amount
of Required Currency then due and payable, and in no circumstances shall the
Trustee be liable therefor except in the case of its negligence or willful
misconduct.
[SECTION 312. Extension of Interest Payment.
The Company shall have the right at any time, so long as the
Company is not in default in the payment of interest on the Securities of any
series hereunder, to extend interest payment periods on all Securities of one
or more series, or Tranches thereof, if so specified as contemplated by
Section 301 with respect to such Securities and upon such terms as may be
specified as contemplated by Section 301 with respect to such
Securities.]<F8>
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series, or any Tranche thereof, which are
redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by
Section 301 for Securities of such series or Tranche) in accordance with this
Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or an Officer's Certificate. The Company
shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such Redemption Date and of the principal amount of
such Securities to be redeemed. In the case of any redemption of Securities
(a) prior to the expiration of any restriction on such redemption provided in
the terms of such Securities or elsewhere in this Indenture or (b) pursuant
to an election of the Company which is subject to a condition specified in
the terms of such Securities, the Company shall furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction or
condition.
SECTION 403. Selection of Securities to Be Redeemed.
If less than all the Securities of any series, or any Tranche
thereof, are to be redeemed, the particular Securities to be redeemed shall
be selected by the Security Registrar from the Outstanding Securities of such
series or Tranche not previously called for redemption, by such method as
shall be provided for any particular series, or, in the absence of any such
provision, by such method of random selection as the Security Registrar shall
deem fair and appropriate and which may, in any case, provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of such series or Tranche or any integral
multiple thereof) of the principal amount of Securities of such series or
Tranche of a denomination larger than the minimum authorized denomination for
Securities of such series or Tranche; provided, however, that if, as
indicated in an Officer's Certificate, the Company shall have offered to
purchase all or any principal amount of the Securities then Outstanding of
any series, or any Tranche thereof, and less than all of such Securities as
to which such offer was made shall have been tendered to the Company for such
purchase, the Security Registrar, if so directed by Company Order, shall
select for redemption all or any principal amount of such Securities which
have not been so tendered.
The Security Registrar shall promptly notify the Company and
the Trustee in writing of the Securities selected for redemption and, in the
case of any Securities selected to be redeemed in part, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only
in part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106 to the Holders of the Securities to be redeemed not less than 30
nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series or Tranche
are to be redeemed, the identification of the particular Securities
to be redeemed and the portion of the principal amount of any
Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price,
together with accrued interest, if any, to the Redemption Date,
will become due and payable upon each such Security to be redeemed
and, if applicable, that interest thereon will cease to accrue on
and after said date,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued
interest, if any, unless it shall have been specified as
contemplated by Section 301 with respect to such Securities that
such surrender shall not be required,
(f) that the redemption is for a sinking or other fund, if
such is the case, and
(g) such other matters as the Company shall deem desirable or
appropriate.
Unless otherwise specified with respect to any Securities in
accordance with Section 301, with respect to any notice of redemption of
Securities at the election of the Company, unless, upon the giving of such
notice, such Securities shall be deemed to have been paid in accordance with
Section 701, such notice may state that such redemption shall be conditional
upon the receipt by the Paying Agent or Agents for such Securities, on or
prior to the date fixed for such redemption, of money sufficient to pay the
principal of and premium, if any, and interest, if any, on such Securities
and that if such money shall not have been so received such notice shall be
of no force or effect and the Company shall not be required to redeem such
Securities. In the event that such notice of redemption contains such a
condition and such money is not so received, the redemption shall not be made
and within a reasonable time thereafter notice shall be given, in the manner
in which the notice of redemption was given, that such money was not so
received and such redemption was not required to be made, and the Paying
Agent or Agents for the Securities otherwise to have been redeemed shall
promptly return to the Holders thereof any of such Securities which had been
surrendered for payment upon such redemption.
Notice of redemption of Securities to be redeemed at the
election of the Company, and any notice of non-satisfaction of a condition
for redemption as aforesaid, shall be given by the Company or, at the
Company's request, by the Security Registrar in the name and at the expense
of the Company. Notice of mandatory redemption of Securities shall be given
by the Security Registrar in the name and at the expense of the Company.
SECTION 405. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities or portions thereof so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price therein specified, and
from and after such date (unless, in the case of an unconditional notice of
redemption, the Company shall default in the payment of the Redemption Price
and accrued interest, if any) such Securities or portions thereof, if
interest-bearing, shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with such notice, such Security or
portion thereof shall be paid by the Company at the Redemption Price,
together with accrued interest, if any, to the Redemption Date; provided,
however, that no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such Security; and
provided, further, that except as otherwise specified as contemplated by
Section 301 with respect to such Security, any installment of interest on any
Security the Stated Maturity of which installment is on or prior to the
Redemption Date shall be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the close of business on
the related Regular Record Date according to the terms of such Security and
subject to the provisions of Section 307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is to be redeemed
only in part at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge, a new Security or Securities of the same
series and Tranche, of any authorized denomination requested by such Holder
and of like tenor and in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of the Securities of any series, or any
Tranche thereof, except as otherwise specified as contemplated by Section 301
for Securities of such series or Tranche.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series, or any Tranche thereof, is herein
referred to as a "mandatory sinking fund payment", and any payment in excess
of such minimum amount provided for by the terms of Securities of any series,
or any Tranche thereof, is herein referred to as an "optional sinking fund
payment". If provided for by the terms of Securities of any series, or any
Tranche thereof, the cash amount of any sinking fund payment may be subject
to reduction as provided in Section 502. Each sinking fund payment shall be
applied to the redemption of Securities of the series or Tranche in respect
of which it was made as provided for by the terms of such Securities.
SECTION 502. Satisfaction of Sinking Fund Payments with Securities.
The Company (a) may deliver to the Trustee Outstanding
Securities (other than any previously called for redemption) of a series or
Tranche in respect of which a mandatory sinking fund payment is to be made
and (b) may apply as a credit Securities of such series or Tranche which have
been redeemed either at the election of the Company pursuant to the terms of
such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of such mandatory sinking fund payment;
provided, however, that no Securities shall be applied in satisfaction of a
mandatory sinking fund payment if such Securities shall have been previously
so applied. Securities so applied shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities
for redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 503. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date
for the Securities of any series, or any Tranche thereof, the Company shall
deliver to the Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory sinking fund
payment for such series or Tranche;
(b) the amount, if any, of the optional sinking fund payment
to be made together with such mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by the payment of cash;
(e) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by delivering and crediting
Securities of such series or Tranche pursuant to Section 502 and
stating the basis for such credit and that such Securities have not
previously been so credited, and the Company shall also deliver to
the Trustee any Securities to be so delivered. If the Company
shall not deliver such Officer's Certificate, the next succeeding
sinking fund payment for such series or Tranche shall be made
entirely in cash in the amount of the mandatory sinking fund
payment. Not less than 30 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in
Section 403 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner
provided in Section 404. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 405 and 406.
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and Interest.
The Company shall pay the principal of and premium, if any,
and interest, if any, on the Securities of each series in accordance with the
terms of such Securities and this Indenture.
SECTION 602. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for the
Securities of each series, or any Tranche thereof, an office or agency where
payment of such Securities shall be made, where the registration of transfer
or exchange of such Securities may be effected and where notices and demands
to or upon the Company in respect of such Securities and this Indenture may
be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of each such office or agency
and prompt notice to the Holders of any such change in the manner specified
in Section 106. If at any time the Company shall fail to maintain any such
required office or agency in respect of Securities of any series, or any
Tranche thereof, or shall fail to furnish the Trustee with the address
thereof, payment of such Securities shall be made, registration of transfer
or exchange thereof may be effected and notices and demands in respect
thereof may be served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent for all such purposes in any
such event.
The Company may also from time to time designate one or more
other offices or agencies with respect to the Securities of one or more
series, or any Tranche thereof, for any or all of the foregoing purposes and
may from time to time rescind such designations; provided, however, that,
unless otherwise specified as contemplated by Section 301 with respect to the
Securities of such series or Tranche, no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency for such purposes in each Place of Payment for such Securities in
accordance with the requirements set forth above. The Company shall give
prompt written notice to the Trustee, and prompt notice to the Holders in the
manner specified in Section 106, of any such designation or rescission and of
any change in the location of any such other office or agency.
Anything herein to the contrary notwithstanding, any office or
agency required by this Section may be maintained at an office of the
Company, in which event the Company shall perform all functions to be
performed at such office or agency.
SECTION 603. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to the Securities of any series, or any Tranche thereof, it
shall, on or before each due date of the principal of and premium, if any,
and interest, if any, on any of such Securities, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal and premium or interest so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided. The Company
shall promptly notify the Trustee of any failure by the Company (or any other
obligor on such Securities) to make any payment of principal of or premium,
if any, or interest, if any, on such Securities.
Whenever the Company shall have one or more Paying Agents for
the Securities of any series, or any Tranche thereof, it shall, on or before
each due date of the principal of and premium, if any, and interest, if any,
on such Securities, deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so becoming due,
such sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company shall promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the Securities
of any series, or any Tranche thereof, other than the Company or the Trustee,
to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment of the principal
of and premium, if any, or interest, if any, on such Securities in
trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(b) give the Trustee notice of any failure by the Company (or
any other obligor upon such Securities) to make any payment of
principal of or premium, if any, or interest, if any, on such
Securities; and
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent and furnish
to the Trustee such information as it possesses regarding the names
and addresses of the Persons entitled to such sums.
The Company may at any time pay, or by Company Order direct
any Paying Agent to pay, to the Trustee all sums held in trust by the Company
or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent and, if so stated in a Company Order delivered to the Trustee, in
accordance with the provisions of Article Seven; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of and
premium, if any, or interest, if any, on any Security and remaining unclaimed
for two years after such principal and premium, if any, or interest has
become due and payable shall be paid to the Company on Company Request, or,
if then held by the Company, shall be discharged from such trust; and, upon
such payment or discharge, the Holder of such Security shall, as an unsecured
general creditor and not as a Holder of an Outstanding Security, look only to
the Company for payment of the amount so due and payable and remaining
unpaid, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such payment to the Company, may at the
expense of the Company cause to be mailed, on one occasion only, notice to
such Holder that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
mailing, any unclaimed balance of such money then remaining will be paid to
the Company.
SECTION 604. Corporate Existence.
Subject to the rights of the Company under Article Eleven, the
Company shall do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence.
SECTION 605. Maintenance of Properties.
The Company shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) all its properties used
or useful in the conduct of its business to be maintained and kept in good
condition, repair and working order and shall cause (or, with respect to
property owned in common with others, make reasonable effort to cause) to be
made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the Company, may be
necessary so that the business carried on in connection therewith may be
properly conducted; provided, however, that nothing in this Section shall
prevent the Company from discontinuing, or causing the discontinuance of, the
operation and maintenance of any of its properties if such discontinuance is,
in the judgment of the Company, desirable in the conduct of its business.
SECTION 606. Annual Officer's Certificate as to Compliance.
Not later than __________________ in each year, commencing
_______________, the Company shall deliver to the Trustee an Officer's
Certificate which need not comply with Section 102, executed by the principal
executive officer, the principal financial officer or the principal
accounting officer of the Company, as to such officer's knowledge of the
Company's compliance with all conditions and covenants under this Indenture,
such compliance to be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 607. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in (a) Section 602 or any
additional covenant or restriction specified with respect to the Securities
of any series, or any Tranche thereof, as contemplated by Section 301 if
before the time for such compliance the Holders of at least a majority in
aggregate principal amount of the Outstanding Securities of all series and
Tranches with respect to which compliance with Section 602 or such additional
covenant or restriction is to be omitted, considered as one class, shall, by
Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition and (b)
Section 604, 605, 606 or Article Eleven if before the time for such
compliance the Holders of at least a majority in principal amount of
Securities Outstanding under this Indenture shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance
with such term, provision or condition; but, in the case of (a) or (b), no
such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force
and effect.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of the principal
amount thereof, shall be deemed to have been paid for all purposes of this
Indenture, and the entire indebtedness of the Company in respect thereof
shall be deemed to have been satisfied and discharged, if there shall have
been irrevocably deposited with the Trustee or any Paying Agent (other than
the Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of
such Securities or portions thereof, Eligible Obligations, which
shall not contain provisions permitting the redemption or other
prepayment thereof at the option of the issuer thereof, the princi-
pal of and the interest on which when due, without any regard to
reinvestment thereof, will provide moneys which, together with the
money, if any, deposited with or held by the Trustee or such Paying
Agent, shall be sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
to pay when due the principal of and premium, if any, and interest, if any,
due and to become due on such Securities or portions thereof on or prior to
Maturity; provided, however, that in the case of the provision for payment or
redemption of less than all the Securities of any series or Tranche, such
Securities or portions thereof shall have been selected by the Security
Registrar as provided herein and, in the case of a redemption, the notice
requisite to the validity of such redemption shall have been given or
irrevocable authority shall have been given by the Company to the Trustee to
give such notice, under arrangements satisfactory to the Trustee; and
provided, further, that the Company shall have delivered to the Trustee and
such Paying Agent:
(x) if such deposit shall have been made prior to the
Maturity of such Securities, a Company Order stating that the
money and Eligible Obligations deposited in accordance with
this Section shall be held in trust, as provided in Section
703;
(y) if Eligible Obligations shall have been deposited,
an Opinion of Counsel that the obligations so deposited
constitute Eligible Obligations and do not contain provisions
permitting the redemption or other prepayment at the option of
the issuer thereof, and an opinion of an independent public
accountant of nationally recognized standing, selected by the
Company, to the effect that the requirements set forth in
clause (b) above have been satisfied; and
(z) if such deposit shall have been made prior to the
Maturity of such Securities, an Officer's Certificate stating
the Company's intention that, upon delivery of such Officer's
Certificate, its indebtedness in respect of such Securities or
portions thereof will have been satisfied and discharged as
contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both, in
accordance with this Section, together with the documents required by clauses
(x), (y) and (z) above, the Trustee shall, upon receipt of a Company Request,
acknowledge in writing that the Security or Securities or portions thereof
with respect to which such deposit was made are deemed to have been paid for
all purposes of this Indenture and that the entire indebtedness of the
Company in respect thereof has been satisfied and discharged as contemplated
in this Section. In the event that all of the conditions set forth in the
preceding paragraph shall have been satisfied in respect of any Securities or
portions thereof except that, for any reason, the Officer's Certificate
specified in clause (z) shall not have been delivered, such Securities or
portions thereof shall nevertheless be deemed to have been paid for all
purposes of this Indenture, and the Holders of such Securities or portions
thereof shall nevertheless be no longer entitled to the benefits of this
Indenture or of any of the covenants of the Company under Article Six (except
the covenants contained in Sections 602 and 603) or any other covenants made
in respect of such Securities or portions thereof as contemplated by Section
301, but the indebtedness of the Company in respect of such Securities or
portions thereof shall not be deemed to have been satisfied and discharged
prior to Maturity for any other purpose, and the Holders of such Securities
or portions thereof shall continue to be entitled to look to the Company for
payment of the indebtedness represented thereby; and, upon Company Request,
the Trustee shall acknowledge in writing that such Securities or portions
thereof are deemed to have been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the
Securities of any series, or any Tranche thereof, is to be provided for in
the manner and with the effect provided in this Section, the Security
Registrar shall select such Securities, or portions of principal amount
thereof, in the manner specified by Section 403 for selection for redemption
of less than all the Securities of a series or Tranche.
In the event that Securities which shall be deemed to have
been paid for purposes of this Indenture, and, if such is the case, in
respect of which the Company's indebtedness shall have been satisfied and
discharged, all as provided in this Section do not mature and are not to be
redeemed within the sixty (60) day period commencing with the date of the
deposit of moneys or Eligible Obligations, as aforesaid, the Company shall,
as promptly as practicable, give a notice, in the same manner as a notice of
redemption with respect to such Securities, to the Holders of such Securities
to the effect that such deposit has been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to have
been paid for purposes of this Indenture, as aforesaid, the obligations of
the Company and the Trustee in respect of such Securities under Sections 304,
305, 306, 404, 503 (as to notice of redemption), 602, 603, 907 and 914 and
this Article Seven shall survive.
The Company shall pay, and shall indemnify the Trustee or any
Paying Agent with which Eligible Obligations shall have been deposited as
provided in this Section against, any tax, fee or other charge imposed on or
assessed against such Eligible Obligations or the principal or interest
received in respect of such Eligible Obligations, including, but not limited
to, any such tax payable by any entity deemed, for tax purposes, to have been
created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at
any time after a Security would be deemed to have been paid for purposes of
this Indenture, and, if such is the case, the Company's indebtedness in
respect thereof would be deemed to have been satisfied or discharged,
pursuant to this Section (without regard to the provisions of this
paragraph), the Trustee or any Paying Agent, as the case may be, shall be
required to return the money or Eligible Obligations, or combination thereof,
deposited with it as aforesaid to the Company or its representative under any
applicable Federal or State bankruptcy, insolvency or other similar law, such
Security shall thereupon be deemed retroactively not to have been paid and
any satisfaction and discharge of the Company's indebtedness in respect
thereof shall retroactively be deemed not to have been effected, and such
Security shall be deemed to remain Outstanding and (b) any satisfaction and
discharge of the Company's indebtedness in respect of any Security shall be
subject to the provisions of the last paragraph of Section 603.
SECTION 702. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as hereinafter expressly provided), and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph of Section
701, any Security, previously deemed to have been paid for purposes of this
Indenture, shall be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to have been satisfied
and discharged, as aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this In-
denture as aforesaid, the obligations of the Company and the Trustee under
Sections 304, 305, 306, 404, 503 (as to notice of redemption), 602, 603, 907
and 914 and this Article Seven shall survive.
Upon satisfaction and discharge of this Indenture as provided
in this Section, the Trustee shall assign, transfer and turn over to the
Company, subject to the lien provided by Section 907, any and all money,
securities and other property then held by the Trustee for the benefit of the
Holders of the Securities other than money and Eligible Obligations held by
the Trustee pursuant to Section 703.
SECTION 703. Application of Trust Money.
Neither the Eligible Obligations nor the money deposited
pursuant to Section 701, nor the principal or interest payments on any such
Eligible Obligations, shall be withdrawn or used for any purpose other than,
and shall be held in trust for, the payment of the principal of and premium,
if any, and interest, if any, on the Securities or portions of principal
amount thereof in respect of which such deposit was made, all subject, how-
ever, to the provisions of Section 603; provided, however, that, so long as
there shall not have occurred and be continuing an Event of Default) any cash
received from such principal or interest payments on such Eligible
Obligations, if not then needed for such purpose, shall, to the extent prac-
ticable, be invested in Eligible Obligations of the type described in clause
(b) in the first paragraph of Section 701 maturing at such times and in such
amounts as shall be sufficient to pay when due the principal of and premium,
if any, and interest, if any, due and to become due on such Securities or
portions thereof on and prior to the Maturity thereof, and interest earned
from such reinvestment shall be paid over to the Company as received, free
and clear of any trust, lien or pledge under this Indenture except the lien
provided by Section 907; and provided, further, that, so long as there shall
not have occurred and be continuing an Event of Default, any moneys held in
accordance with this Section on the Maturity of all such Securities in excess
of the amount required to pay the principal of and premium, if any, and
interest, if any, then due on such Securities shall be paid over to the
Company free and clear of any trust, lien or pledge under this Indenture
except the lien provided by Section 907; and provided, further, that if an
Event of Default shall have occurred and be continuing, moneys to be paid
over to the Company pursuant to this Section shall be held until such Event
of Default shall have been waived or cured.
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events:
(a) failure to pay interest, if any, on any Security of such
series within sixty (60) days after the same becomes due and pay-
able [(whether or not payment is prohibited by the provisions of
Article Fifteen hereof); provided, however, that a valid extension
of the interest payment period by the Company as contemplated in
Section 312 of this Indenture shall not constitute a failure to pay
interest for this purpose]<F9>; or
(b) failure to pay the principal of or premium, if any, on
any Security of such series within three (3) Business Days after
its Maturity [(whether or not payment is prohibited by the
provisions of Article Fifteen hereof)]; or
(c) failure to perform or breach of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty
a default in the performance of which or breach of which is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of
one or more series of Securities other than such series) for a
period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee, or to the Company
and the Trustee by the Holders of at least 33% in principal amount
of the Outstanding Securities of such series, a written notice
specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder,
unless the Trustee, or the Trustee and the Holders of a principal
amount of Securities of such series not less than the principal
amount of Securities the Holders of which gave such notice, as the
case may be, shall agree in writing to an extension of such period
prior to its expiration; provided, however, that the Trustee, or
the Trustee and the Holders of such principal amount of Securities
of such series, as the case may be, shall be deemed to have agreed
to an extension of such period if corrective action is initiated by
the Company within such period and is being diligently pursued; or
(d) the entry by a court having jurisdiction in the premises
of (1) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law
or (2) a decree or order adjudging the Company a bankrupt or in-
solvent, or approving as properly filed a petition by one or more
Persons other than the Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any
applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other
similar official for the Company or for any substantial part of its
property, or ordering the winding up or liquidation of its affairs,
and any such decree or order for relief or any such other decree or
order shall have remained unstayed and in effect for a period of 90
consecutive days; or
(e) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insol-
vency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in
respect of the Company in a case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the filing
of such petition or to the appointment of or taking possession by
a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of the Company or of any substantial part of
its property, or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due, or the authorization of
such action by the Board of Directors; or
(f) any other Event of Default specified with respect to
Securities of such series.
SECTION 802. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default shall have occurred and be continuing
with respect to Securities of any series at the time Outstanding, then in
every such case the Trustee or the Holders of not less than 33% in principal
amount of the Outstanding Securities of such series may declare the principal
amount (or, if any of the Securities of such series are Discount Securities,
such portion of the principal amount of such Securities as may be specified
in the terms thereof as contemplated by Section 301) of all of the Securities
of such series to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by Holders), and upon receipt by the
Company of notice of such declaration such principal amount (or specified
amount) shall become immediately due and payable [(provided that the payment
of principal of such securities shall remain subordinated to the extent
provided in Article Fifteen hereof)]<F10>; provided, however, that if an
Event of Default shall have occurred and be continuing with respect to more
than one series of Securities, the Trustee or the Holders of not less than
33% in aggregate principal amount of the Outstanding Securities of all such
series, considered as one class, may make such declaration of acceleration,
and not the Holders of the Securities of any one of such series.
At any time after such a declaration of acceleration with
respect to Securities of any series shall have been made and before a judg-
ment or decree for payment of the money due shall have been obtained by the
Trustee as hereinafter in this Article provided, the Event or Events of
Default giving rise to such declaration of acceleration shall, without
further act, be deemed to have been waived, and such declaration and its
consequences shall, without further act, be deemed to have been rescinded and
annulled, if
(a) the Company shall have paid or deposited with the Trustee
a sum sufficient to pay
(1) all overdue interest on all Securities of such
series;
(2) the principal of and premium, if any, on any
Securities of such series which have become due otherwise than
by such declaration of acceleration and interest thereon at
the rate or rates prescribed therefor in such Securities;
(3) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities;
(4) all amounts due to the Trustee under Section 907;
and
(b) any other Event or Events of Default with respect to
Securities of such series, other than the non-payment of the
principal of Securities of such series which shall have become due
solely by such declaration of acceleration, shall have been cured
or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
SECTION 803. Collection of Indebtedness and Suits for Enforcement by
Trustee.
If an Event of Default described in clause (a) or (b) of
Section 801 shall have occurred and be continuing, the Company shall, upon
demand of the Trustee, pay to it, for the benefit of the Holders of the
Securities of the series with respect to which such Event of Default shall
have occurred, the whole amount then due and payable on such Securities for
principal and premium, if any, and interest, if any, and, to the extent per-
mitted by law, interest on premium, if any, and on any overdue principal and
interest, at the rate or rates prescribed therefor in such Securities, and,
in addition thereto, such further amount as shall be sufficient to cover any
amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other
obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any
series shall have occurred and be continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 804. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and unpaid
in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for amounts due to the
Trustee under Section 907) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 805. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders in respect
of which such judgment has been recovered.
SECTION 806. Application of Money Collected.
[Subject to the provisions of Article Fifteen,]<F11> any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money on account of principal or premium, if any, or
interest, if any, upon presentation of the Securities in respect of which or
for the benefit of which such money shall have been collected and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 907;
Second: To the payment of the amounts then due and unpaid
upon the Securities for principal of and premium, if any, and
interest, if any, in respect of which or for the benefit of which
such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on
such Securities for principal, premium, if any, and interest, if
any, respectively; and
Third: To the Company.
SECTION 807. Limitation on Suits.
No Holder shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of such series;
(b) the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of all series in
respect of which an Event of Default shall have occurred and be
continuing, considered as one class, shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any
such proceeding; and
(e) no direction inconsistent with such written request shall
have been given to the Trustee during such 60-day period by the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series in respect of which an Event
of Default shall have occurred and be continuing, considered as one
class;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
SECTION 808. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and premium, if any,
and (subject to Section 307 [and 312]<F12>) interest, if any, on such Secu-
rity on the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired with-
out the consent of such Holder.
SECTION 809. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding shall
have been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, and
Trustee and such Holder shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and such Holder shall continue as though no such proceeding had been
instituted.
SECTION 810. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or
to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 811. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default
or an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as
the case may be.
SECTION 812. Control by Holders of Securities.
If an Event of Default shall have occurred and be continuing
in respect of a series of Securities, the Holders of a majority in principal
amount of the Outstanding Securities of such series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series; provided, however,
that if an Event of Default shall have occurred and be continuing with
respect to more than one series of Securities, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all such series,
considered as one class, shall have the right to make such direction, and not
the Holders of the Securities of any one of such series; and provided,
further, that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture, and could not involve the Trustee in
personal liability in circumstances where indemnity would not, in
the Trustee's sole discretion, be adequate, and
(b) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 813. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past default hereunder with respect
to such series and its consequences, except a default
(a) in the payment of the principal of or premium, if any, or
interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under
Section 1202 cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any and all Events of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
SECTION 814. Undertaking for Costs.
The Company and the Trustee agree, and each Holder by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard
to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in aggregate principal amount of the Outstanding Securities of all
series in respect of which such suit may be brought, considered as one class,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal of or premium, if any, or interest, if any, on any Security on
or after the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
SECTION 815. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to Securities of any series,
(1) the Trustee undertakes to perform, with respect to
Securities of such series, such duties and only such duties as
are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may, with respect to Securities of such series, conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Securities of
any series shall have occurred and be continuing, the Trustee shall
exercise, with respect to Securities of such series, such of the
rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own
affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own wilful misconduct,
except that
(1) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any one or
more series, as provided herein, relating to the time, method
and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect
to the Securities of such series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 902. Notice of Defaults.
The Trustee shall give the Holders notice of any default
hereunder with respect to the Securities of any series to the Holders of
Securities of such series in the manner and to the extent required to do so
by the Trust Indenture Act, unless such default shall have been cured or
waived; provided, however, that in the case of any default of the character
specified in Section 801(c), no such notice to Holders shall be given until
at least 75 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or
lapse of time, or both, would become, an Event of Default.
SECTION 903. Certain Rights of Trustee.
Subject to the provisions of Section 901 and to the applicable
provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order, or as otherwise expressly provided herein, and any
resolution of the Board of Directors may be sufficiently evidenced
by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any Holder pursuant to this Indenture,
unless such Holder shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall
(subject to applicable legal requirements) be entitled to examine,
during normal business hours, the books, records and premises of
the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(h) except as otherwise provided in Section 801, the Trustee
shall not be charged with knowledge of any Event of Default with
respect to the Securities of any series for which it is acting as
Trustee unless either (1) a Responsible Officer of the Trustee
shall have actual knowledge of the Event of Default or (2) written
notice of such Event of Default shall have been given to the
Trustee by the Company, any other obligor on such Securities or by
any Holder of such Securities.
SECTION 904. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities (except
the Trustee's certificates of authentication) shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 905. May Hold Securities.
Each of the Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 908 and 913, may otherwise deal with the
Company with the same rights it would have if it were not the Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 906. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds, except to the extent required by law. The
Trustee shall be under no liability for interest on investment of any money
received by it hereunder except as expressly provided herein or otherwise
agreed with, and for the sole benefit of, the Company.
SECTION 907. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances reasonably incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except to the extent that
any such expense, disbursement or advance may be attributable to
its negligence, wilful misconduct or bad faith; and
(c) indemnify the Trustee and hold it harmless from and
against, any loss, liability or expense reasonably incurred by it
arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder or the performance
of its duties hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense
may be attributable to its negligence, wilful misconduct or bad
faith.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such other than property and funds held in trust under Section 703 (except as
otherwise provided in Section 703). "Trustee" for purposes of this Section
shall include any predecessor Trustee; provided, however, that the
negligence, wilful misconduct or bad faith of any Trustee hereunder shall not
affect the rights of any other Trustee hereunder.
SECTION 908. Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any conflicting interest
within the meaning of the Trust Indenture Act, it shall either eliminate such
conflicting interest or resign to the extent, in the manner and with the
effect, and subject to the conditions, provided in the Trust Indenture Act
and this Indenture. For purposes of Section 310(b)(1) of the Trust Indenture
Act and to the extent permitted thereby, the Trustee, in its capacity as
trustee in respect of the Securities of any series, shall not be deemed to
have a conflicting interest arising from its capacity as trustee in respect
of the Securities of any other series.
SECTION 909. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws
of the United States, any State or Territory thereof or the
District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by
Federal or State authority, or
(b) if and to the extent permitted by the Commission by rule,
regulation or order upon application, a corporation or other Person
organized and doing business under the laws of a foreign
government, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least
$50,000,000 or the Dollar equivalent of the applicable foreign
currency and subject to supervision or examination by authority of
such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable
to United States institutional trustees,
and, in either case, qualified and eligible under this Article and the Trust
Indenture Act. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of such supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
SECTION 910. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 911.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 911 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 908
after written request therefor by the Company or by any Holder
who has been a bona fide Holder for at least six months, or
(2) the Trustee shall cease to be eligible under Section
909 and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (x) the Company by a Board Resolution may remove the
Trustee with respect to all Securities or (y) subject to Section 814, any
Holder who has been a bona fide Holder for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities
and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause (other than as contemplated in clause (y) in
subsection (d) of this Section), with respect to the Securities of
one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to
the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the Securities
of any particular series) and shall comply with the applicable
requirements of Section 911. If, within one year after such
resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of
Section 911, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 911, any Holder who
has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities
of such series.
(f) So long as no event which is, or after notice or lapse of
time, or both, would become, an Event of Default shall have
occurred and be continuing, and except with respect to a Trustee
appointed by Act of the Holders of a majority in principal amount
of the Outstanding Securities pursuant to subsection (e) of this
Section, if the Company shall have delivered to the Trustee (i) a
Board Resolution appointing a successor Trustee, effective as of a
date specified therein, and (ii) an instrument of acceptance of
such appointment, effective as of such date, by such successor
Trustee in accordance with Section 911, the Trustee shall be deemed
to have resigned as contemplated in subsection (b) of this Section,
the successor Trustee shall be deemed to have been appointed by the
Company pursuant to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as contemplated
in Section 911, all as of such date, and all other provisions of
this Section and Section 911 shall be applicable to such
resignation, appointment and acceptance except to the extent
inconsistent with this subsection (f).
(g) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect to
the Securities of any series by mailing written notice of such
event by first-class mail, postage prepaid, to all Holders of
Securities of such series as their names and addresses appear in
the Security Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and
the address of its corporate trust office.
SECTION 911. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of all series, every such
successor Trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of all
sums owed to it, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring
Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring
Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee and (3) shall add to
or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any
other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee, upon payment of all sums owed to
it, shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any instruments which fully vest in and confirm to
such successor Trustee all such rights, powers and trusts referred
to in subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 912. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
SECTION 913. Preferential Collection of Claims Against Company.
If the Trustee shall be or become a creditor of the Company or
any other obligor upon the Securities (other than by reason of a relationship
described in Section 311(b) of the Trust Indenture Act), the Trustee shall be
subject to any and all applicable provisions of the Trust Indenture Act
regarding the collection of claims against the Company or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft, bill
of exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to, possession
of, or a lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise previously
constituting the security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with the
Company arising from the making, drawing, negotiating or incurring of the
draft, bill of exchange, acceptance or obligation.
SECTION 914. Co-trustees and Separate Trustees.
At any time or times, for the purpose of meeting the legal
requirements of any applicable jurisdiction, the Company and the Trustee
shall have power to appoint, and, upon the written request of the Trustee or
of the Holders of at least thirty-three per centum (33%) in principal amount
of the Securities then Outstanding, the Company shall for such purpose join
with the Trustee in the execution and delivery of all instruments and
agreements necessary or proper to appoint, one or more Persons approved by
the Trustee either to act as co-trustee, jointly with the Trustee, or to act
as separate trustee, in either case with such powers as may be provided in
the instrument of appointment, and to vest in such Person or Persons, in the
capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section. If the Company
does not joint in such appointment within 15 days after the receipt by it of
a request so to do, or if an Event of Default shall have occurred and be
continuing, the Trustee alone shall have power to make such appointment.
Should any written instrument or instruments from the Company
be required by any co-trustee or separate trustee so appointed to more fully
confirm to such co-trustee or separate trustee such property, title, right or
power, any and all such instruments shall, on request, be executed,
acknowledged and delivered by the Company.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following conditions:
(a) the Securities shall be authenticated and delivered, and
all rights, powers, duties and obligations hereunder in respect of
the custody of securities, cash and other personal property held
by, or required to be deposited or pledged with, the Trustee
hereunder, shall be exercised solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and
exercised or performed either by the Trustee or by the Trustee and
such co-trustee or separate trustee jointly, as shall be provided
in the instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Trustee shall be
incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument in writing
executed by it, with the concurrence of the Company, may accept the
resignation of or remove any co-trustee or separate trustee
appointed under this Section, and, if an Event of Default shall
have occurred and be continuing, the Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Company. Upon the
written request of the Trustee, the Company shall join with the
Trustee in the execution and delivery of all instruments and
agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this
Section;
(d) no co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Trustee,
or any other such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall be
deemed to have been delivered to each such co-trustee and separate
trustee.
SECTION 915. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to the Securities of one or more series, or any Tranche thereof,
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series or Tranche issued upon original issuance, exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf
of the Trustee by an Authenticating Agent. Each Authenticating Agent shall
be acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States, any State
or territory thereof or the District of Columbia or the Commonwealth of
Puerto Rico, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the execution or filing of
any paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating
Agent. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, in
accordance with, and subject to the provisions of Section 907.
The provisions of Sections 308, 904 and 905 shall be ap-
plicable to each Authenticating Agent.
If an appointment with respect to the Securities of one or
more series, or any Tranche thereof, shall be made pursuant to this Section,
the Securities of such series or Tranche may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
________________________
As Trustee
By______________________
As Authenticating
Agent
By______________________
Authorized Signatory
If all of the Securities of a series may not be originally
issued at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not comply with Section 102 and need
not be accompanied by an Opinion of Counsel), shall appoint, in accordance
with this Section and in accordance with such procedures as shall be
acceptable to the Trustee, an Authenticating Agent having an office in a
Place of Payment designated by the Company with respect to such series of
Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than _______ and ___________ in each
year, commencing _______________, and at such other times as the Trustee may
request in writing, the Company shall furnish or cause to be furnished to the
Trustee information as to the names and addresses of the Holders, and the
Trustee shall preserve such information and similar information received by
it in any other capacity and afford to the Holders access to information so
preserved by it, all to such extent, if any, and in such manner as shall be
required by the Trust Indenture Act; provided, however, that no such list
need be furnished so long as the Trustee shall be the Security Registrar.
SECTION 1002. Reports by Trustee and Company.
Not later than _____________ in each year, commencing
_______________, the Trustee shall transmit to the Holders and the Commission
a report, dated as of the next preceding _______________, with respect to any
events and other matters described in Section 313(a) of the Trust Indenture
Act, in such manner and to the extent required by the Trust Indenture Act.
The Trustee shall transmit to the Holders and the Commission, and the Company
shall file with the Trustee (within thirty (30) days after filing with the
Commission in the case of reports which pursuant to the Trust Indenture Act
must be filed with the Commission and furnished to the Trustee) and transmit
to the Holders, such other information, reports and other documents, if any,
at such times and in such manner, as shall be required by the Trust Indenture
Act.
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation, or convey or otherwise transfer or lease its properties and
assets substantially as an entirety to any Person, unless
(a) the corporation formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and assets
of the Company substantially as an entirety shall be a Person
organized and existing under the laws of the United States, any
State thereof or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and delivered
to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and premium, if any, and
interest, if any, on all Outstanding Securities and the performance
of every covenant of this Indenture on the part of the Company to
be performed or observed;
(b) immediately after giving effect to such transaction and
treating any indebtedness for borrowed money which becomes an
obligation of the Company as a result of such transaction as having
been incurred by the Company at the time of such transaction, no
Event of Default, and no event which, after notice or lapse of time
or both, would become an Event of Default, shall have occurred and
be continuing; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, or other transfer or lease
and such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such
transactions have been complied with.
SECTION 1102. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the
Company into any other corporation or any conveyance, or other transfer or
lease of the properties and assets of the Company substantially as an
entirety in accordance with Section 1101, the successor corporation formed by
such consolidation or into which the Company is merged or the Person to which
such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been
named as the Company herein, and thereafter, except in the case of a lease,
the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities Outstanding hereunder.
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any
of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities, all as provided in
Article Eleven; or
(b) to add one or more covenants of the Company or other
provisions for the benefit of all Holders or for the benefit of the
Holders of, or to remain in effect only so long as there shall be
Outstanding, Securities of one or more specified series, or one or
more specified Tranches thereof, or to surrender any right or power
herein conferred upon the Company; or
(c) to add any additional Events of Default with respect to
all or any series of Securities Outstanding hereunder; or
(d) to change or eliminate any provision of this Indenture or
to add any new provision to this Indenture; provided, however, that
if such change, elimination or addition shall adversely affect the
interests of the Holders of Securities of any series or Tranche
Outstanding on the date of such indenture supplemental hereto in
any material respect, such change, elimination or addition shall
become effective with respect to such series or Tranche only
pursuant to the provisions of Section 1202 hereof or when no
Security of such series or Tranche remains Outstanding; or
(e) to provide collateral security for the Securities; or
(f) to establish the form or terms of Securities of any
series or Tranche as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing interest,
if any, thereon and for the procedures for the registration,
exchange and replacement thereof and for the giving of notice to,
and the solicitation of the vote or consent of, the holders
thereof, and for any and all other matters incidental thereto; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 911(b);
or
(i) to provide for the procedures required to permit the
Company to utilize, at its option, a non-certificated system of
registration for all, or any series or Tranche of, the Securities;
or to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing interest,
if any, thereon and for the procedures for the registration,
exchange and replacement thereof and for the giving of notice to,
and the solicitation of the vote or consent of, the holders
thereof, and for any and all other matters incidental thereto; or
(j) to change any place or places where (1) the principal of
and premium, if any, and interest, if any, on all or any series of
Securities, or any Tranche thereof, shall be payable, (2) all or
any series of Securities, or any Tranche thereof, may be
surrendered for registration of transfer, (3) all or any series of
Securities, or any Tranche thereof, may be surrendered for exchange
and (4) notices and demands to or upon the Company in respect of
all or any series of Securities, or any Tranche thereof, and this
Indenture may be served; provided, however, that any such place is
located in New York, New York, Chicago, Illinois, Pittsburgh,
Pennsylvania or Los Angeles, California or in any other city
located in the United States which has a population of at least
1,000,000 inhabitants; or
(k) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein, or to make any other changes to the
provisions hereof or to add other provisions with respect to
matters or questions arising under this Indenture, provided that
such other changes or additions shall not adversely affect the
interests of the Holders of Securities of any series or Tranche in
any material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date of the execution and delivery of this
Indenture or at any time thereafter shall be amended and
(x) if any such amendment shall require one or more
changes to any provisions hereof or the inclusion herein of
any additional provisions, or shall by operation of law be
deemed to effect such changes or incorporate such provisions
by reference or otherwise, this Indenture shall be deemed to
have been amended so as to conform to such amendment to the
Trust Indenture Act, and the Company and the Trustee may,
without the consent of any Holders, enter into an indenture
supplemental hereto to effect or evidence such changes or
additional provisions; or
(y) if any such amendment shall permit one or more
changes to, or the elimination of, any provisions hereof
which, at the date of the execution and delivery hereof or at
any time thereafter, are required by the Trust Indenture Act
to be contained herein, this Indenture shall be deemed to have
been amended to effect such changes or elimination, and the
Company and the Trustee may, without the consent of any
Holders, enter into an indenture supplemental hereto to
evidence such amendment hereof.
SECTION 1202. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities of all series then Outstanding
under this Indenture, considered as one class, by Act of said Holders de-
livered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of, this Indenture;
provided, however, that if there shall be Securities of more than one series
Outstanding hereunder and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more, but less than
all, of such series, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all series so
directly affected, considered as one class, shall be required; and provided,
further, that if the Securities of any series shall have been issued in more
than one Tranche and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more, but less than
all, of such Tranches, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all Tranches so
directly affected, considered as one class, shall be required; and provided,
further, that no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on [(except as provided in
Section 312 hereof)]<F13>, any Security, or reduce the principal
amount thereof or the rate of interest thereon (or the amount of
any installment of interest thereon) or change the method of
calculating such rate or reduce any premium payable upon the
redemption thereof, or reduce the amount of the principal of a
Discount Security that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 802, or
change the coin or currency (or other property), in which any
Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity of any Security (or, in the
case of redemption, on or after the Redemption Date), without, in
any such case, the consent of the Holder of such Security, or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series or any Tranche thereof, the
consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with any provision of this
Indenture or of any default hereunder and its consequences, or
reduce the requirements of Section 1304 for quorum or voting,
without, in any such case, the consent of the Holders of each
Outstanding Security of such series or Tranche, or
(c) modify any of the provisions of this Section, Section 607
or Section 813 with respect to the Securities of any series, or any
Tranche thereof, or except to increase the percentages in principal
amount referred to in this Section or such other Sections or to
provide that other provisions of this Indenture cannot be modified
or waived without the consent of the Holder of each Outstanding
Security affected thereby; provided, however, that this clause
shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and
concomitant changes in this Section, or the deletion of this pro-
viso, in accordance with the requirements of Sections 911(b) and
1201(h).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or of one or more
Tranches thereof, or which modifies the rights of the Holders of Securities
of such series or Tranches with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof. A waiver by a Holder of such Holder's right to consent under this
Section shall be deemed to be a consent of such Holder.
SECTION 1203. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 901) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties, immunities or
liabilities under this Indenture or otherwise.
SECTION 1204. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby. Any supplemental indenture
permitted by this Article may restate this Indenture in its entirety, and,
upon the execution and delivery thereof, any such restatement shall supersede
this Indenture as theretofore in effect for all purposes.
SECTION 1205. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 1206. Reference in Securities to Supplemental Indentures.
Securities of any series, or any Tranche thereof,
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new
Securities of any series, or any Tranche thereof, so modified as to conform,
in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such
series or Tranche.
SECTION 1207. Modification Without Supplemental Indenture.
If the terms of any particular series of Securities shall have
been established in a Board Resolution or an Officer's Certificate pursuant
to a Board Resolution as contemplated by Section 301, and not in an indenture
supplemental hereto, additions to, changes in or the elimination of any of
such terms may be effected by means of a supplemental Board Resolution or
Officer's Certificate, as the case may be, delivered to, and accepted by, the
Trustee; provided, however, that such supplemental Board Resolution or
Officer's Certificate shall not be accepted by the Trustee or otherwise be
effective unless all conditions set forth in this Indenture which would be
required to be satisfied if such additions, changes or elimination were
contained in a supplemental indenture shall have been appropriately
satisfied. Upon the acceptance thereof by the Trustee, any such supplemental
Board Resolution or Officer's Certificate shall be deemed to be a
"supplemental indenture" for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of
Securities of such series or Tranches.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series, or any Tranche or
Tranches thereof, for any purpose specified in Section 1301, to be
held at such time and at such place in the Borough of Manhattan,
The City of New York, as the Trustee shall determine, or, with the
approval of the Company, at any other place. Notice of every such
meeting, setting forth the time and the place of such meeting and
in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 106, not less
than 21 nor more than 180 days prior to the date fixed for the
meeting.
(b) If the Trustee shall have been requested to call a
meeting of the Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, by the Company or by
the Holders of 33% in aggregate principal amount of all of such
series and Tranches, considered as one class, for any purpose
specified in Section 1301, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting,
and the Trustee shall not have given the notice of such meeting
within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities of such
series and Tranches in the amount above specified, as the case may
be, may determine the time and the place in the Borough of
Manhattan, The City of New York, or in such other place as shall be
determined or approved by the Company, for such meeting and may
call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof, shall be valid
without notice if the Holders of all Outstanding Securities of such
series or Tranches are present in person or by proxy and if rep-
resentatives of the Company and the Trustee are present, or if
notice is waived in writing before or after the meeting by the
Holders of all Outstanding Securities of such series, or by such of
them as are not present at the meeting in person or by proxy, and
by the Company and the Trustee.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities
of one or more, or all, series, or any Tranche or Tranches thereof, a Person
shall be (a) a Holder of one or more Outstanding Securities of such series or
Tranches, or (b) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series or
Tranches by such Holder or Holders. The only Persons who shall be entitled
to attend any meeting of Holders of Securities of any series or Tranche shall
be the Persons entitled to vote at such meeting and their counsel, any repre-
sentatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of the series and Tranches with respect
to which a meeting shall have been called as hereinbefore provided,
considered as one class, shall constitute a quorum for a meeting of Holders
of Securities of such series and Tranches; provided, however, that if any
action is to be taken at such meeting which this Indenture expressly provides
may be taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of such series
and Tranches, considered as one class, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of
such series and Tranches, considered as one class, shall constitute a quorum.
In the absence of a quorum within one hour of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of
Securities of such series and Tranches, be dissolved. In any other case the
meeting may be adjourned for such period as may be determined by the chairman
of the meeting prior to the adjournment of such meeting. In the absence of
a quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for such period as may be determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Except as provided by
Section 1305(e), notice of the reconvening of any meeting adjourned for more
than 30 days shall be given as provided in Section 1302(a) not less than ten
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series and Tranches which shall constitute a quorum.
Except as limited by Section 1202, any resolution presented to
a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of the
series and Tranches with respect to which such meeting shall have been
called, considered as one class; provided, however, that, except as so lim-
ited, any resolution with respect to any action which this Indenture express-
ly provides may be taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the Outstanding Securities of
such series and Tranches, considered as one class, may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Securities of such series
and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of
Holders of Securities duly held in accordance with this Section shall be
binding on all the Holders of Securities of the series and Tranches with re-
spect to which such meeting shall have been held, whether or not present or
represented at the meeting.
SECTION 1305. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of Securities may be in
person or by proxy; and, to the extent permitted by law, any such
proxy shall remain in effect and be binding upon any future Holder
of the Securities with respect to which it was given unless and
until specifically revoked by the Holder or future Holder of such
Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities in regard to
proof of the holding of such Securities and of the appointment of
proxies and in regard to the appointment and duties of inspectors
of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in
the manner specified in Section 104. Such regulations may provide
that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in
Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing, appoint
a temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by Holders as provided in Section
1302(b), in which case the Company or the Holders of Securities of
the series and Tranches calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of all series and
Tranches represented at the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to
one vote for each $1 principal amount of Securities held or
represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged as
not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at which
a quorum is present may be adjourned from time to time by Persons
entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches represented at
the meeting, considered as one class; and the meeting may be held
as so adjourned without further notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders shall be by written ballots on which shall be subscribed the
signatures of the Holders or of their representatives by proxy and the
principal amounts and serial numbers of the Outstanding Securities, of the
series and Tranches with respect to which the meeting shall have been called,
held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary
of the meeting their verified written reports of all votes cast at the
meeting. A record of the proceedings of each meeting of Holders shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1302 and, if applicable, Section
1304. Each copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy shall be
delivered to the Company, and another to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the
meeting. Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
SECTION 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as hereinbefore
contemplated in this Article, any request, demand, authorization, direction,
notice, consent, waiver or other action may be made, given or taken by
Holders by written instruments as provided in Section 104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and Directors
SECTION 1401. Liability Solely Corporate.
No recourse shall be had for the payment of the principal of
or premium, if any, or interest, if any, on any Securities, or any part
thereof, or for any claim based thereon or otherwise in respect thereof, or
of the indebtedness represented thereby, or upon any obligation, covenant or
agreement under this Indenture, against any incorporator, stockholder,
officer or director, as such, past, present or future of the Company or of
any predecessor or successor corporation (either directly or through the
Company or a predecessor or successor corporation), whether by virtue of any
constitutional provision, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly agreed and under-
stood that this Indenture and all the Securities are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or be
incurred by, any incorporator, stockholder, officer or director, past,
present or future, of the Company or of any predecessor or successor
corporation, either directly or indirectly through the Company or any
predecessor or successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or to be
implied herefrom or therefrom, and that any such personal liability is hereby
expressly waived and released as a condition of, and as part of the
consideration for, the execution of this Indenture and the issuance of the
Securities.
[ARTICLE FIFTEEN
Subordination of Securities
SECTION 1501. Securities Subordinate to Senior Indebtedness.
The Company, for itself, its successors and assigns, covenants
and agrees, and each Holder of the Securities of each series, by its
acceptance thereof, likewise covenants and agrees, that the payment of the
principal of and premium, if any, and interest, if any, on each and all of
the Securities is hereby expressly subordinated, to the extent and in the
manner set forth in this Article, in right of payment to the prior payment in
full of all Senior Indebtedness.
Each Holder of the Securities of each series, by its
acceptance thereof, authorizes and directs the Trustee on its behalf to take
such action as may be necessary or appropriate to effectuate the
subordination as provided in this Article, and appoints the Trustee its
attorney-in-fact for any and all such purposes.
SECTION 1502. Payment Over of Proceeds of Securities.
In the event (a) of any insolvency or bankruptcy proceedings
or any receivership, liquidation, reorganization or other similar proceedings
in respect of the Company or a substantial part of its property, or of any
proceedings for liquidation, dissolution or other winding up of the Company,
whether or not involving insolvency or bankruptcy, or (b) subject to the
provisions of Section 1503, that (i) a default shall have occurred with
respect to the payment of principal of or interest on or other monetary
amounts due and payable on any Senior Indebtedness, or (ii) there shall have
occurred a default (other than a default in the payment of principal or
interest or other monetary amounts due and payable) in respect of any Senior
Indebtedness, as defined therein or in the instrument under which the same is
outstanding, permitting the holder or holders thereof to accelerate the
maturity thereof (with notice or lapse of time, or both), and such default
shall have continued beyond the period of grace, if any, in respect thereof,
and, in the cases of subclauses (i) and (ii) of this clause (b), such default
shall not have been cured or waived or shall not have ceased to exist, or (c)
that the principal of and accrued interest on the Securities of any series
shall have been declared due and payable pursuant to Section 801 and such
declaration shall not have been rescinded and annulled as provided in Section
802, then:
(1) the holders of all Senior Indebtedness shall
first be entitled to receive payment of the full amount
due thereon, or provision shall be made for such payment
in money or money's worth, before the Holders of any of
the Securities are entitled to receive a payment on
account of the principal of or interest on the
indebtedness evidenced by the Securities, including,
without limitation, any payments made pursuant to
Articles Four and Five;
(2) any payment by, or distribution of assets of,
the Company of any kind or character, whether in cash,
property or securities, to which any Holder or the
Trustee would be entitled except for the provisions of
this Article, shall be paid or delivered by the person
making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or
otherwise, directly to the holders of such Senior
Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to
the aggregate amounts remaining unpaid on account of such
Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full of all Senior
Indebtedness remaining unpaid after giving effect to any
concurrent payment or distribution (or provision
therefor) to the holders of such Senior Indebtedness,
before any payment or distribution is made to the Holders
of the indebtedness evidenced by the Securities or to the
Trustee under this Indenture; and
(3) in the event that, notwithstanding the
foregoing, any payment by, or distribution of assets of,
the Company of any kind or character, whether in cash,
property or securities, in respect of principal of or
interest on the Securities or in connection with any
repurchase by the Company of the Securities, shall be
received by the Trustee or any Holder before all Senior
Indebtedness is paid in full, or provision is made for
such payment in money or money's worth, such payment or
distribution in respect of principal of or interest on
the Securities or in connection with any repurchase by
the Company of the Securities shall be paid over to the
holders of such Senior Indebtedness or their
representative or representatives or to the trustee or
trustees under any indenture under which any instruments
evidencing any such Senior Indebtedness may have been
issued, ratably as aforesaid, for application to the
payment of all Senior Indebtedness remaining unpaid until
all such Senior Indebtedness shall have been paid in
full, after giving effect to any concurrent payment or
distribution (or provision therefor) to the holders of
such Senior Indebtedness.
Notwithstanding the foregoing, at any time after the 123rd day
following the date of deposit of cash or Eligible Obligations pursuant to
Section 701 (provided all conditions set out in such Section shall have been
satisfied), the funds so deposited and any interest thereon will not be
subject to any rights of holders of Senior Indebtedness including, without
limitation, those arising under this Article Fifteen; provided that no event
described in clauses (d) and (e) of Section 801 with respect to the Company
has occurred during such 123-day period.
For purposes of this Article only, the words "cash, property
or securities" shall not be deemed to include shares of stock of the Company
as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan or reorganization or readjustment which
are subordinate in right of payment to all Senior Indebtedness which may at
the time be outstanding to the same extent as, or to a greater extent than,
the Securities are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions provided for
in Article Eleven hereof shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 1502 if such
other corporation shall, as a part of such consolidation, merger, conveyance
or transfer, comply with the conditions stated in Article Eleven hereof.
Nothing in Section 1501 or in this Section 1502 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 907.
SECTION 1503. Disputes with Holders of Certain Senior Indebtedness.
Any failure by the Company to make any payment on or perform
any other obligation in respect of Senior Indebtedness, other than any
indebtedness incurred by the Company or assumed or guaranteed, directly or
indirectly, by the Company for money borrowed (or any deferral, renewal,
extension or refunding thereof) or any other obligation as to which the
provisions of this Section shall have been waived by the Company in the
instrument or instruments by which the Company incurred, assumed, guaranteed
or otherwise created such indebtedness or obligation, shall not be deemed a
default under clause (b) of Section 1502 if (i) the Company shall be
disputing its obligation to make such payment or perform such obligation and
(ii) either (A) no final judgment relating to such dispute shall have been
issued against the Company which is in full force and effect and is not
subject to further review, including a judgment that has become final by
reason of the expiration of the time within which a party may seek further
appeal or review, or (B) in the event that a judgment that is subject to
further review or appeal has been issued, the Company shall in good faith be
prosecuting an appeal or other proceeding for review and a stay or execution
shall have been obtained pending such appeal or review.
SECTION 1504. Subrogation.
Senior Indebtedness shall not be deemed to have been paid in
full unless the holders thereof shall have received cash (or securities or
other property satisfactory to such holders) in full payment of such Senior
Indebtedness then outstanding. Upon the payment in full of all Senior
Indebtedness, the Holders of the Securities shall be subrogated to the rights
of the holders of Senior Indebtedness to receive any further payments or
distributions of cash, property or securities of the Company applicable to
the holders of the Senior Indebtedness until all amounts owing on the
Securities shall be paid in full; and such payments or distributions of cash,
property or securities received by the Holders of the Securities, by reason
of such subrogation, which otherwise would be paid or distributed to the
holders of such Senior Indebtedness shall, as between the Company, its
creditors other than the holders of Senior Indebtedness, and the Holders, be
deemed to be a payment by the Company to or on account of Senior
Indebtedness, it being understood that the provisions of this Article are and
are intended solely for the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of the Senior Indebtedness, on the
other hand.
SECTION 1505. Obligation of the Company Unconditional.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the
Company, its creditors other than the holders of Senior Indebtedness and the
Holders, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders the principal of and interest on the Securities as and
when the same shall become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the Holders and
creditors of the Company other than the holders of Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of
the holders of Senior Indebtedness in respect of cash, property or securities
of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets or securities of
the Company referred to in this Article, the Trustee and the Holders shall be
entitled to rely upon any order or decree of a court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders of the
Senior Indebtedness and other indebtedness of the Company, the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon, and
all other facts pertinent thereto or to this Article.
SECTION 1506. Priority of Senior Indebtedness Upon Maturity.
Upon the maturity of the principal of any Senior Indebtedness
by lapse of time, acceleration or otherwise, all matured principal of Senior
Indebtedness and interest and premium, if any, thereon shall first be paid in
full before any payment of principal or premium or interest, if any, is made
upon the Securities or before any Securities can be acquired by the Company
or any sinking fund payment is made with respect to the Securities (except
that required sinking fund payments may be reduced by Securities acquired
before such maturity of such Senior Indebtedness).
SECTION 1507. Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all rights set forth in this
Article with respect to any Senior Indebtedness at any time held by it, to
the same extent as any other holder of Senior Indebtedness. Nothing in this
Article shall deprive the Trustee of any of its rights as such holder.
SECTION 1508. Notice to Trustee to Effectuate Subordination.
Notwithstanding the provisions of this Article or any other
provision of the Indenture, the Trustee shall not be charged with knowledge
of the existence of any facts which would prohibit the making of any payment
of moneys to or by the Trustee unless and until the Trustee shall have
received written notice thereof from the Company, from a Holder or from a
holder of any Senior Indebtedness or from any representative or
representatives of such holder and, prior to the receipt of any such written
notice, the Trustee shall be entitled, subject to Section 901, in all
respects to assume that no such facts exist; provided, however, that, if
prior to the fifth Business Day preceding the date upon which by the terms
hereof any such moneys may become payable for any purpose, or in the event of
the execution of an instrument pursuant to Section 702 acknowledging
satisfaction and discharge of this Indenture, then if prior to the second
Business Day preceding the date of such execution, the Trustee shall not have
received with respect to such moneys the notice provided for in this Section,
then, anything herein contained to the contrary notwithstanding, the Trustee
may, in its discretion, receive such moneys and/or apply the same to the
purpose for which they were received, and shall not be affected by any notice
to the contrary, which may be received by it on or after such date; provided,
however, that no such application shall affect the obligations under this
Article of the persons receiving such moneys from the Trustee.
SECTION 1509. Modification, Extension, etc. of Senior Indebtedness.
The holders of Senior Indebtedness may, without affecting in
any manner the subordination of the payment of the principal of and premium,
if any, and interest, if any, on the Securities, at any time or from time to
time and in their absolute discretion, agree with the Company to change the
manner, place or terms of payment, change or extend the time of payment of,
or renew or alter, any Senior Indebtedness, or amend or supplement any
instrument pursuant to which any Senior Indebtedness is issued, or exercise
or refrain from exercising any other of their rights under the Senior
Indebtedness including, without limitation, the waiver of default thereunder,
all without notice to or assent from the Holders or the Trustee.
SECTION 1510. Trustee Has No Fiduciary Duty to Holders of Senior
Indebtedness.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
objectives as are specifically set forth in this Indenture, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not
be deemed to owe any fiduciary duty to the holders of Senior Indebtedness,
and shall not be liable to any such holders if it shall mistakenly pay over
or deliver to the Holders or the Company or any other Person, money or assets
to which any holders of Senior Indebtedness shall be entitled by virtue of
this Article or otherwise.
SECTION 1511. Paying Agents Other Than the Trustee.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the
term "Trustee" as used in this Article shall in such case (unless the context
shall otherwise require) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if
such Paying Agent were named in this Article in addition to or in place of
the Trustee; provided, however, that Sections 1507, 1508 and 1510 shall not
apply to the Company if it acts as Paying Agent.
SECTION 1512. Rights of Holders of Senior Indebtedness Not Impaired.
No right of any present or future holder of Senior
Indebtedness to enforce the subordination herein shall at any time or in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company or by any noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
SECTION 1513. Effect of Subordination Provisions; Termination.
Notwithstanding anything contained herein to the contrary,
other than as provided in the immediately succeeding sentence, all the
provisions of this Indenture shall be subject to the provisions of this
Article, so far as the same may be applicable thereto.
Notwithstanding anything contained herein to the contrary, the
provisions of this Article Fifteen shall be of no further effect, and the
Securities shall no longer be subordinated in right of payment to the prior
payment of Senior Indebtedness, if the Company shall have delivered to the
Trustee a notice to such effect. Any such notice delivered by the Company
shall not be deemed to be a supplemental indenture for purposes of Article
Twelve hereof.]<F14>
_________________________
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above
written.
CAROLINA POWER & LIGHT COMPANY
By:_________________________________
[SEAL]
ATTEST:
__________________________________
______________________________, Trustee
By:_________________________________
[SEAL]
ATTEST:
__________________________________
<PAGE>
STATE OF _____________________ )
) ss.:
COUNTY OF ___________________ )
On the _____ day of _________, 1995, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and
say that he is the _________________________ of Carolina Power & Light
Company, one of the corporations described in and which executed the
foregoing 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 authority of the Board of Directors of said corporation, and that
he signed his name thereto by like authority.
________________________________
Notary Public
[Notarial Seal]
STATE OF _____________________ )
) ss.:
COUNTY OF ___________________ )
On the _____ day of ____________, 1995, before me personally
came _________________, to me known, who, being by me duly sworn, did depose
and say that he is a _________________ of ______________________________, one
of the corporations described in and which executed the foregoing 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 authority of the
Board of Directors of said corporation, and that he signed his name thereto
by like authority.
________________________________
Notary Public
[Notarial Seal]
__________
[FN]
<F1> Bracketed language will be inserted in the Indenture under which
Monthly Income Debt Securities ("MIDS") or other subordinated
Securities will be issued.
<F2> Bracketed language will be inserted in the Indenture under which MIDS
or other subordinated Securities will be issued.
<F3> Bracketed language will be inserted in the Indenture under which MIDS
or other subordinated Securities will be issued.
<F4> Bracketed language will be inserted in the Indenture under which MIDS
or other subordinated Securities will be issued.
<F5> Bracketed language will be inserted in the Indenture under which MIDS
or other subordinated Securities will be issued.
<F6> Bracketed language will be inserted in the Indenture under which MIDS
or other subordinated Securities will be issued.
<F7> Bracketed language will be inserted in the Indenture under which MIDS
or other subordinated Securities will be issued.
<F8> Bracketed language will be inserted in the Indenture under which MIDS
or other subordinated Securities will be issued.
<F9> Bracketed language will be inserted in the Indenture under which MIDS
or other subordinated Securities will be issued.
<F10> Bracketed language will be inserted in the Indenture under which MIDS
or other subordinated Securities will be issued.
<F11> Bracketed language will be inserted in the Indenture under which MIDS
or other subordinated Securities will be issued.
<F12> Bracketed language will be inserted in the Indenture under which MIDS
or other subordinated Securities will be issued.
<F13> Bracketed language will be inserted in the Indenture under which MIDS
or other subordinated Securities will be issued.
<F14> Bracketed language will be inserted in the Indenture under which MIDS
or other subordinated Securities will be issued.
CAROLINA POWER & LIGHT COMPANY RICHARD E. JONES
PO Box 1551 Senior Vice President
Raleigh NC 27602 General Counsel and Secretary
Exhibit 5(a)
February 24, 1995
Carolina Power & Light Company
411 Fayetteville Street
Raleigh, NC 27601-1748
Ladies and Gentlemen:
In respect of the proposed issuance and sale by Carolina Power & Light
Company (the "Company") of not to exceed $250,000,000 aggregate principal
amount of its securities, which will consist of First Mortgage Bonds (the
"Bonds") and/or other debt securities of the Company (the "Debt
Securities", and together with the Bonds, the "Securities"), as set forth
in a registration statement to be filed by the Company on or about the date
hereof with the Securities and Exchange Commission under the Securities Act
of 1933, as amended (the "Registration Statement"), I am of the opinion
that:
1. The Company is a corporation validly organized and existing under
the laws of the State of North Carolina and is duly qualified to
transact business in the States of North Carolina and South
Carolina.
2. The Securities will be valid, legal and binding obligations of
the Company when:
(a) The North Carolina Utilities Commission and the South
Carolina Public Service Commission shall have enacted orders
authorizing the issuance and sale of the Securities;
(b) In the case of the Bonds, a meeting or meetings of the
Company's Board of Directors or the Executive Committee
thereof (either the Board of Directors or the Executive
Committee thereof hereinafter referred to as the "Board")
shall have been held and favorable action shall have been
taken at such meeting or meetings to (i) approve and
authorize substantially in final form one or more proposed
supplemental indentures relating to the Bonds (the
"Supplemental Indenture") to the Company's presently
existing Mortgage and Deed of Trust, as supplemented, (ii)
approve and authorize the issuance and sale of the Bonds and
(iii) take such other final action as may be necessary to
consummate the authorization of the proposed issuance and
sale of the Bonds;
(c) In the case of Debt Securities, (i) a meeting or meetings of
the Board shall have been held and favorable action shall
have been taken at such meeting or meetings to approve and
authorize substantially in final form an indenture to be
entered into by the Company and a trustee and under which
the Debt Securities are to be issued (the "Debt Securities
Indenture"), (ii) a meeting or meetings of the Board shall
have been held and favorable action shall have been taken at
such meeting or meetings either to (A) approve and authorize
substantially in final form one or more supplemental
indentures or resolutions relating to the Debt Securities in
accordance with the terms of the Debt Securities Indenture,
or (B) authorize the proper officers of the Company to
execute an officer's certificate creating the terms of the
Debt Securities in accordance with the Debt Securities
Indenture, and, in the case of this clause (B), such
officers shall have executed such officer's certificate,
(iii) the Board or the proper officers of the Company
pursuant to delegated authority from the Board shall have
approved and authorized the issuance and sale of the Debt
Securities, and (iv) the Board or the proper officers of the
Company pursuant to delegated authority from the Board shall
have taken such other final action as may be necessary to
consummate the authorization of the proposed issuance and
sale of the Debt Securities;
(d) In the case of Bonds, the Supplemental Indenture shall have
been executed and delivered;
(e) In the case of Debt Securities, (i) the Debt Securities
Indenture, and (ii) the supplemental indenture, resolutions
and/or officer's certificate, shall have been executed
and/or certified, as appropriate, and delivered; and
(f) The Securities shall have been issued and delivered for the
consideration contemplated in the Registration Statement and
any prospectus supplement relating to the Securities of a
particular series.
I hereby consent to the use of this opinion as part of the
Registration Statement to which a copy of this opinion is an exhibit and to
the use of my name as Senior Vice President, General Counsel and Secretary
and as an expert in the Registration Statement.
Very truly yours,
/S/ Robert E. Jones
Robert E. Jones
REID & PRIEST LLP
A New York Registered Limited Liability Partnership
40 WEST 57TH STREET
NEW YORK, NEW YORK 10019-4097
Exhibit 5(b)
New York, New York
February 24, 1995
Carolina Power & Light Company
411 Fayetteville Street
Raleigh, North Carolina 27601-1748
Ladies and Gentlemen:
In connection with the proposed issuance and sale by
Carolina Power & Light Company (the "Company") of not to exceed
$250,000,000 aggregate principal amount of its securities, which
will consist of First Mortgage Bonds of the Company (the "Bonds")
and/or other debt securities of the Company (the "Debt
Securities", and together with the Bonds, the "Securities"), as
set forth in a registration statement to be filed by you on or
about the date hereof with the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Registration
Statement"), we advise you as follows:
The Securities will be valid, legal and binding
obligations of the Company when:
(a) The North Carolina Utilities Commission and the
South Carolina Public Service Commission shall have entered
orders authorizing the issuance and sale of the Securities;
(b) In the case of the Bonds, a meeting or meetings of
the Company's Board of Directors or the Executive Committee
thereof (either the Board of Directors or the Executive
Committee thereof hereinafter referred to as the "Board")
shall have been held and favorable action shall have been
taken at such meeting or meetings to (i) approve and
authorize substantially in final form one or more proposed
supplemental indentures relating to the Bonds (the
"Supplemental Indenture") to the Company's presently
existing Mortgage and Deed of Trust, as supplemented, (ii)
approve and authorize the issuance and sale of the Bonds and
(iii) take such other final action as may be necessary to
consummate the authorization of the proposed issuance and
sale of the Bonds;
(c) In the case of Debt Securities, (i) a meeting or
meetings of the Board shall have been held and favorable
action shall have been taken at such meeting or meetings to
approve and authorize substantially in final form an
indenture to be entered into by the Company and a trustee
and under which the Debt Securities are to be issued (the
"Debt Securities Indenture"), (ii) a meeting or meetings of
the Board shall have been held and favorable action shall
have been taken at such meeting or meetings either to (A)
approve and authorize substantially in final form one or
more supplemental indentures or resolutions relating to the
Debt Securities in accordance with the terms of the Debt
Securities Indenture, or (B) authorize the proper officers
of the Company to execute an officer's certificate creating
the terms of the Debt Securities in accordance with the Debt
Securities Indenture, and, in the case of this clause (B),
such officers shall have executed such officer's
certificate, (iii) the Board or the proper officers of the
Company pursuant to delegated authority from the Board shall
have approved and authorized the issuance and sale of the
Debt Securities, and (iv) the Board or the proper officers
of the Company pursuant to delegated authority from the
Board shall have taken such other final action as may be
necessary to consummate the authorization of the proposed
issuance and sale of the Debt Securities;
(d) In the case of Bonds, the Supplemental Indenture
shall have been executed and delivered;
(e) In the case of Debt Securities, (i) the Debt
Securities Indenture, and (ii) the supplemental indenture,
resolutions and/or officer's certificate shall have been
executed and/or certified, as appropriate, and delivered;
and
(f) The Securities shall have been issued and
delivered for the consideration contemplated in the
Registration Statement and any prospectus supplement
relating to the Securities of a particular series.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of North Carolina or South
Carolina. We have examined an opinion of even date herewith
addressed to you by Richard E. Jones, Esq., of Raleigh, North
Carolina, Senior Vice President, General Counsel and Secretary of
the Company, and we concur in the conclusions of law expressed
therein.
We hereby consent to the use of our name in such
Registration Statement and to the use of this opinion as an
exhibit thereto.
Very truly yours,
/S/ REID & PRIEST LLP
REID & PRIEST LLP
EXHIBIT 12
CAROLINA POWER & LIGHT COMPANY
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED
DIVIDENDS COMBINED AND RATIO OF EARNINGS TO FIXED CHARGES
TWELVE MONTHS ENDED DECEMBER 31,
--------------------------------
1994 1993
---- ----
(THOUSANDS OF DOLLARS)
Earnings, as defined:
Net income . . . . . . . . . . . . . . . . . . . . $313,167 $346,496
Fixed charges, as below . . . . . . . . . . . . . . 213,821 237,098
Income taxes, as below . . . . . . . . . . . . . . 180,518 181,653
-------- --------
Total earnings, as defined . . . . . . . . . . . . $707,506 $765,247
======== ========
Fixed Charges, as defined:
Interest on long-term debt . . . . . . . . . . . . $183,891 $205,182
Other interest . . . . . . . . . . . . . . . . . . 16,119 16,419
Imputed interest factor in rentals-charged
principally to operating expenses . . . . . . . . 13,811 15,497
-------- --------
Total fixed charges, as defined . . . . . . . . . $213,821 $237,098
======== ========
Earnings before income taxes . . . . . . . . . . . . $493,685 $528,149
======== ========
Ratio of earnings before income taxes to net income . 1.58 1.52
Income taxes:
Included in operating expenses . . . . . . . . . . $198,238 $189,535
Included in other income . . . . . . . . . . . . . (9,425) 392
Included in AFUDC - deferred taxes in nuclear fuel
amortization and book depreciation . . . . . . . . (8,295) (8,274)
-------- --------
Total income taxes . . . . . . . . . . . . . . . . $180,518 $181,653
======== ========
Fixed charges and preferred dividends combined:
Preferred dividend requirements . . . . . . . . . . $ 9,609 $ 9,609
Portion deductible for income tax purposes . . . . (312) (312)
-------- --------
Preferred dividend requirements not deductible . . . $ 9,297 $ 9,297
======== ========
Preferred dividend factor:
Preferred dividends not deductible times ratio of
earnings before income taxes to net income . . . . $ 14,689 $ 14,131
Preferred dividends deductible for income taxes . . 312 312
Fix charges, as above . . . . . . . . . . . . . . . 213,821 237,098
-------- --------
Total fixed charges and preferred dividends
combined . . . . . . . . . . . . . . . . . . . . $228,822 $251,541
======== ========
Ratio of earnings to fixed charges and preferred
dividends combined . . . . . . . . . . . . . . . 3.09 3.04
Ratio of earnings to fixed charges . . . . . . . . . 3.31 3.23
EXHIBIT 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Carolina Power & Light Company on Form S-3 of our
report, dated February 14, 1994, appearing in the Annual Report
on Form 10-K of Carolina Power & Light Company for the year ended
December 31, 1993 and to the reference to us under the heading
"Experts and Legality" in the Prospectus, which is in part of
this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Raleigh, North Carolina
February 24, 1995
Exhibit 25(a)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2)
------------
-----------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
48 Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip code)
-----------------
CAROLINA POWER & LIGHT COMPANY
(Exact name of obligor as specified in its charter)
North Carolina 56-0165465
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
411 Fayetteville Street
Raleigh, North Carolina 27601-1748
(Address of principal executive offices) (Zip code)
-----------------
First Mortgage Bonds*
(Title of the indenture securities)
*Specific title(s) to be determined in connection with sale(s)
of First Mortgage Bonds
<PAGE>
<PAGE>
Item 1. General Information.
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Superintendent of Banks of the 2 Rector Street, New
State of New York York, N.Y. 10006 and
Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New
York, N.Y. 10045
Federal Deposit Insurance Corporation 550 17th Street, N.W.,
Washington, D.C. 20429
New York Clearing House Association New York, N.Y.
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee,
describe each such affiliation.
None. (See Note on page 2.)*
Item 16. List of Exhibits.
Exhibits identified in parentheses below, on file with
the Commission, are incorporated herein by reference as an
exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture
Act of 1939 (the "Act") and Rule 24 of the Commission's Rules of
Practice.
1. -A copy of the Organization Certificate of The
Bank of New York (formerly Irving Trust Company)
as now in effect, which contains the authority to
commence business and a grant of powers to
exercise corporate trust powers. (See Exhibit 1
to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a
and 1b to Form T-1 filed with Registration
Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. -A copy of the existing By-laws of the Trustee.
(See Exhibit 4 to Form T-1 filed with
Registration Statement No. 33-31019.)
6. -The consent of the Trustee required by Section
321(b) of the Act. (See Exhibit 6 to Form T-1
filed with Registration Statement No. 33-44051.)
7. -A copy of the latest report of condition of the
Trustee published pursuant to law or to the
requirements of its supervising or examining
authority. (See Exhibit 7 to Form T-1 of The
Bank of New York filed as Exhibit 25.2 to
Registration Statement No. 33-57577.)
- ------------------------------
*Pursuant to General Instruction B, the Trustee has
responded only to Items 1, 2 and 16 of this form since to the
best of the knowledge of the Trustee the obligor is not in
default under any indenture under which the Trustee is a trustee.
<PAGE>
NOTE
Inasmuch as this Form T-1 is being filed prior to the
ascertainment by the Trustee of all facts on which to base a
responsive answer to Item 2, the answer to said Item is based on
incomplete information.
Item 2 may, however, be considered as correct unless
amended by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee,
The Bank of New York, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State
of New York, on the 9th day of February, 1995.
THE BANK OF NEW YORK
By: MARY JANE MORRISSEY
-------------------------
Mary Jane Morrissey
Assistant Vice President
- 2 -
Exhibit 25(b)
===============================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305 (b)(2)_____
__________________________________
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
_________________________
CAROLINA POWER & LIGHT COMPANY
(Exact name of obligor as specified in the charter)
NORTH CAROLINA 56-0165465
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) Identification no.)
411 FAYETTEVILLE STREET
RALEIGH, NC 27601-1748
(Address of principal (Zip Code)
executive offices)
_______________________
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
===============================================================
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the Trustee.
(a) Name and address of each examining or supervising authority
to which it is subject.
NAME ADDRESS
Federal Reserve Bank (2nd District) New York, N.Y.
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, N.Y.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
ITEM 16. LIST OF EXHIBITS.
EXHIBIT 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990 and Certificate of
Amendment of the Organization Certificate of Bankers
Trust Company dated March 28, 1994 - Incorporated
herein by reference to Exhibit 1 filed with Form T-1
Statement, Registration No. 33-79862.
EXHIBIT 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No. 33-21047.
EXHIBIT 3 - Authorization of the Trustee to exercise corporate
trust powers - Incorporated herein by reference to
Exhibit 3 filed with Form T-1 Statement,
Registration No. 33-21047.
EXHIBIT 4 - A copy of existing By-Laws of Bankers Trust Company,
dated as amended on September 21, 1993. -
Incorporated herein by reference to Exhibit 4 filed
with Form T-1 Statement, Registration No. 33-52359.
EXHIBIT 5 - Not applicable.
EXHIBIT 6 - Consent of Bankers Trust Company required by Section
321(b) of the Act. - Incorporated herein by
reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 22-18864.
EXHIBIT 7 - A copy of the latest report of condition of Bankers
Trust Company dated as of December 31, 1995 - (Copy
attached).
EXHIBIT 8 - Not Applicable
EXHIBIT 9 - Not Applicable
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Bankers Trust Company, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 23rd
day of February, 1995.
BANKERS TRUST COMPANY
By Scott Thiel
----------------------
Scott Thiel
Assistant Treasurer
<PAGE>
Legal Title of Bank:
Bankers Trust Company Call Date: 3/31/94 ST-BK: 36-4840 FFIEC 031
130 Liberty Street Page RC-1
New York, NY 10006 Vendor ID: D CERT: 00623
Transit Number: 21001033 11
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1995
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of
the quarter.
SCHEDULE RC--BALANCE SHEET
C400
Dollar Amounts in Thousands
--------------------------------------------------------------------------
ASSETS
1. Cash and balances due from depository RCFD
institutions (from Schedule RC-A): ----
a. Noninterest-bearing balances and
currency and coin <F1>__________________ 0081.. 2,023,000 1.a
b. Interest-bearing balances <F2>__________ 0071.. 3,680,000 1.b
2. Securities:
a. Held-to-maturity securities (from
Schedule RC-B, column A)________________ 1754.. 0 2.a
b. Available-for-sale securities (from
Schedule RC-B, column D)________________ 1773.. 3,934,000 2.b
3. Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal funds sold______________________ 0276.. 5,382,000 3.a
b. Securities purchased under agreements to
resell__________________________________ 0277.. 133,000 3.b
4. Loans and lease financing receivables:
a. Loans and leases,
net of unearned income RCFD
----
(from Schedule RC-C)____ 2122.. 17,269,000 . . . . . . . 4.a
b. LESS: Allowance for
loan and lease losses___ 3123.. 1,178,000 . . . . . . . 4.b
c. LESS: Allocated trans-
fer risk reserve________ 3128.. 0 . . . . . . . 4.c
d. Loans and leases, net of unearned income,
allowance, and reserve
(item 4.a minus 4.b and 4.c)____________ 2125.. 16,091,000 4.d
5. Assets held in trading accounts____________ 3545.. 34,364,000 5.
6. Premises and fixed assets
(including capitalized leases)_____________ 2145.. 872,000 6.
7. Other real estate owned
(from Schedule RC-M)_______________________ 2150.. 272,000 7.
8. Investments in unconsolidated
subsidiaries and associated companies
(from Schedule RC-M)_______________________ 2130.. 209,000 8.
9. Customers' liability to this bank on
acceptances outstanding____________________ 2155.. 378,000 9.
10. Intangible assets
(from Schedule RC-M)_______________________ 2143.. 9,000 10.
11. Other assets (from Schedule RC-F)__________ 2160.. 7,473,000 11.
12. Total assets (sum of items
1 through 11)______________________________ 2170.. 74,820,000 12.
------------
[FN]
<F1> Includes cash items in process of collection and unposted debits.
<F2> Includes time certificates of deposit not held in trading accounts.
<PAGE>
SCHEDULE RC - CONTINUED
--------------------------------------------------------------------------
LIABILITIES
13. Deposits:
a. In domestic offices (sum of RCON
----
totals of columns A and C from
Schedule RC-E, part I)__________________ 2200.. 8,291,000 13.a
RCON
----
(1) Noninterest-bearing<F1> 6631.. 3,454,000 . . . . . . 13.a.1
(2) Interest-bearing 6636.. 4,837,000 . . . . . . 13.a.2
RCFN
----
b. In foreign offices, Edge and
Agreement subsidiaries, and IBFs
(from Schedule RC-E, part II)____________2200.. 18,191,000 13.b
RCFN
----
(1) Noninterest-bearing<F1> 6631.. 555,000 . . . . . . 13.b.1
(2) Interest-bearing 6636.. 17,636,000 . . . . . . 13.b.2
14. Federal funds purchased and securities
sold under agreements to repurchase in
domestic offices of the bank and of
its Edge and Agreement subsidiaries,
and in IBFs:_______________________________ RCFD
----
a. Federal funds purchased_________________ 0278.. 4,394,000 14.a
b. Securities sold under agreements to
repurchase 0279.. 384,000 14.b
RCON
----
15. a. Demand notes issued to the U.S.
Treasury________________________________ 2840.. 0 15.a
RCFD
----
b. Trading liabilities_____________________ 3548.. 20,461,000 15.b
16. Other borrowed money:
a. With original maturity of
one year or less________________________ 2332.. 8,527,000 16.a
b. With original maturity of
more than one year______________________ 2333.. 1,995,000 16.b
17. Mortgage indebtedness and
obligations under capitalized leases_______ 2910.. 36,000 17.
18. Bank's liability on acceptances
executed and outstanding___________________ 2920.. 379,000 18.<PAGE>
19. Subordinated notes and debentures__________ 3200.. 1,220,000 19.
20. Other liabilities (from Schedule RC-G)_____ 2930.. 6,792,000 20.
21. Total liabilities
(sum of items 13 through 20)_______________ 2948.. 70,670,000 21.
22. Limited-life preferred stock
and related surplus________________________ 3282.. 0 22.
EQUITY CAPITAL
RCFD
----
23. Perpetual preferred stock and
related surplus____________________________ 3838.. 250,000 23.
24. Common stock_______________________________ 3230.. 852,000 24.
25. Surplus (exclude all surplus related
to preferred stock)________________________ 3839.. 498,000 25.
26. a. Undivided profits and capital reserves__ 3632.. 2,875,000 26.a
b. Net unrealized holding gains (losses)
on available-for-sale securities________ 8434.. 19,000 26.b
27. Cumulative foreign currency translation
adjustments________________________________ 3284.. (344,000) 27.
28. Total equity capital
(sum of items 23 through 27)_______________ 3210.. 4,150,000 28.
29. Total liabilities, limited-life preferred
stock, and equity capital
(sum of items 21, 22, and 28)______________ 3300.. 74,820,000 29.
MEMORANDUM
TO BE REPORTED ONLY WITH THE MARCH REPORT
OF CONDITION.
1. Indicate in the box at the right the number
of the statement below that best describes the
most comprehensive level of auditing work
performed for the bank by independent RCFD Number
external auditors as of any date ---- ------
during 1993________________________________ 6724.. N/A M.1
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated
holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
______________________
[FN]
<F1> Including total demand deposits and noninterest-bearing time and
savings deposits.
Exhibit 25(c)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM T-2
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF AN INDIVIDUAL
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
-------------
-----------------
W.T. CUNNINGHAM
(Name of Trustee)
###-##-####
(Social Security Number)
101 Barclay Street
New York, New York 10286
(Business Address, Street, City, State) (Zip Code)
-----------------
CAROLINA POWER & LIGHT COMPANY
(Exact name of obligor as specified in its charter)
North Carolina 56-0165465
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
411 Fayetteville Street
Raleigh, North Carolina 27601-1748
(Address of principal executive offices) (Zip Code)
-----------------
First Mortgage Bonds*
(Title of the indenture securities)
*Specific title(s) to be determined in connection with sale(s)
of Bonds
<PAGE>
Item 1. Affiliations with Obligor
If the obligor is an affiliate of the trustee, describe
each such affiliation.
None.*
Item 11. List of Exhibits
List below all exhibits filed as a part of this
statement of eligibility.
None.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act
of 1939, I, W.T. Cunningham, have signed this statement of
eligibility in The City of New York and State of New York, on the
9th day of February, 1995.
W.T. CUNNINGHAM
--------------------
W.T. Cunningham
________________
*Pursuant to General Instruction B, the Trustee has
responded only to Items 1 and 11 of this form since to the best
of the knowledge of the Trustee the obligor is not in default
under any indenture under which the Trustee is a trustee.
