FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Current Report
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): April 1, 2000
CAROLINA POWER & LIGHT COMPANY
(Exact name of registrant as specified in its charter)
North Carolina 1-3382 56-0165465
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
411 Fayetteville Street, Raleigh, North Carolina 27601-1748
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(Address of principal executive offices)
Registrant's telephone number, including area code: (919) 546-6111
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ITEM 5. OTHER EVENTS
(a) UNDERWRITING AGREEMENT. The Registrant has entered into an
Underwriting Agreement, dated April 5, 2000, with Chase Securities Inc. and Banc
One Capital Markets, Inc., as Representative of several Underwriters, in
connection with the offering of Senior Notes, 7.50% Series Due April 1, 2005
(the "Senior Notes Due 2005"), registered with the Securities and Exchange
Commission on Form S-3 (Reg. No. 333-69237). A copy of the Underwriting
Agreement is filed herewith as Exhibit 1.
(b) SENIOR NOTE INDENTURE. The Registrant entered into an Indenture
(For Senior Notes), dated as of March 1, 1999, and a Second Supplemental Senior
Note Indenture, dated as of April 1, 2000, with The Bank of New York, as
Trustee, in connection with the offering of the Senior Notes Due 2005. A copy of
the Second Supplemental Senior Note Indenture is filed herewith as Exhibit 4(a).
(c) SIXTY-EIGHTH SUPPLEMENTAL INDENTURE TO THE MORTGAGE. The Registrant
has entered into a Sixty-eighth Supplemental Indenture, dated as of April 1,
2000, to its Mortgage and Deed of Trust, dated May 1, 1940 (the "Mortgage"),
with The Bank of New York and Douglas J. MacInnes, as Trustees, in connection
with the issuance of the Registrant's First Mortgage Bonds, 7.50% Senior Note
Series due April 1, 2005, which are being delivered as security for the Senior
Notes Due 2005. A copy of the Sixty-eighth Supplemental Indenture to the
Mortgage is filed herewith as Exhibit 4(b).
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS
(c) EXHIBITS.
1 Underwriting Agreement, dated April 5, 2000, between
Carolina Power & Light Company and Chase Securities,
Inc. and Banc One Capital Markets, Inc., as
Representative of several Underwriters.
4(a) Second Supplemental Senior Note Indenture, dated as
of April 1, 2000, between Carolina Power & Light
Company and The Bank of New York, as Trustee.
4(b) Sixty-eighth Supplemental Indenture, dated as of
April 1, 2000, to Carolina Power & Light Company's
Mortgage and Deed of Trust, dated May 1, 1940,
between Carolina Power & Light Company and The Bank
of New York and Douglas J. MacInnes, as Trustees.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
CAROLINA POWER & LIGHT COMPANY
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Registrant
By: /s/ Robert B. McGehee
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Robert B. McGehee
Executive Vice President
Date: April 20, 2000
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EXHIBIT INDEX
1 Underwriting Agreement, dated April 5, 2000, between Carolina Power &
Light Company and Chase Securities, Inc. and Banc One Capital Markets,
Inc., as Representative of several Underwriters.
4(a) Second Supplemental Senior Note Indenture, dated as of April 1, 2000,
between Carolina Power & Light Company and The Bank of New York, as
Trustee.
4(b) Sixty-eighth Supplemental Indenture, dated as of April 1, 2000, to
Carolina Power & Light Company's Mortgage and Deed of Trust, dated May
1, 1940, between Carolina Power & Light Company and The Bank of New
York and Douglas J. MacInnes, as Trustees.
Exhibit 1
CAROLINA POWER & LIGHT COMPANY
Senior Notes, 7.50% Series Due April 1, 2005
UNDERWRITING AGREEMENT
April 5, 2000
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 Notes. The Company proposes to issue and sell its
Senior Notes of the designation, with the terms and in the amount specified in
Schedule I hereto (the "Notes") in one or more new series under a governing
indenture (together with any supplements, the "Senior Note Indenture") each
between the Company and The Bank of New York, as trustee (the "Senior Note
Trustee"), in substantially the form heretofore delivered to the Representative.
Until the Release Date (as defined in the Senior Note Indenture), the Notes will
be secured by one or more series of Senior Note First Mortgage Bonds (as defined
in the Senior Note Indenture) issued and delivered by the Company to the Senior
Note Trustee. On the Release Date, the Notes will cease to be secured by the
Senior Note First Mortgage Bonds and will become unsecured obligations of the
Company. The Senior Note First Mortgage Bonds securing the Notes will be issued
under the Company's 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
(Douglas J. MacInnes, successor) as Mortgage Trustees, as supplemented and as it
will be supplemented by a supplemental indenture relating to the Senior Note
First Mortgage Bonds (the "Sixty-eighth Supplemental Indenture" and together
with the Mortgage and Deed of Trust as supplemented, the "Mortgage") in
substantially the form heretofore delivered to the Representative.
3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
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(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a Registration Statement on Form S-3 (No.
333-69237) (the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), for the registration of up to
an aggregate of $1,500,000,000 principal amount of the Company's First
Mortgage Bonds, Senior Notes and Debt Securities (collectively, the
"Registered Securities") in unallocated amounts, as each is defined in
the Registration Statement. As of the date hereof, the Company has sold
an aggregate of $900,000,000 principal amount of Registered Securities.
The Registration Statement has been declared effective by the
Commission, and the Mortgage and Senior Note Indenture have each been
qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). The term "Registration Statement" shall be deemed to include all
amendments to the date hereof and all documents incorporated by
reference therein (the "Incorporated Documents"). The prospectus
included in the Registration Statement, as it is to be supplemented by
a prospectus supplement, dated on or about the date hereof,
substantially in the form delivered to the Representative prior to the
execution hereof, relating to the Notes (the "Prospectus Supplement"),
and all prior amendments or supplements thereto (other than amendments
or supplements relating to securities of the Company other than the
Notes), 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 Notes by the
Underwriters, and any references herein to the terms "Registration
Statement" or "Prospectus" at a date after the filing of the Prospectus
Supplement shall be deemed to refer to the Registration Statement or
the Prospectus, as the case may be, as each may be amended or
supplemented prior to such date.
(b) Prior to the termination of the offering of the Notes, 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 the
Underwriter(s) or their counsel acting 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, the Senior Note Indenture 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, 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
Prospectus or to any statements in or omissions from the Statements of
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Eligibility (Forms T-1 and T-2) of the trustees under the Mortgage and
the Senior Note 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 Notes 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, financial condition
or prospects of the Company and its subsidiaries considered as a whole,
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 arising 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 Notes, 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 Senior Note First Mortgage Bonds, 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; provided,
however, that certain remedies, waivers and other provisions of the
Senior Note First Mortgage Bonds may not be enforceable, but such
unenforceability will not render the Senior Note First Mortgage Bonds
invalid as a whole or affect the judicial enforcement of (i) the
obligation of the Company to repay the principal, together with the
interest thereon as provided in the Senior Note First Mortgage Bonds or
(ii) the right of the Mortgage Trustees to exercise their right to
foreclose under the Mortgage.
(h) 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
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default under, the Charter, the Company's by-laws, applicable law or
any indenture, mortgage, deed of trust or other agreement or instrument
to which the Company is now a party or any judgment, order, writ or
decree of any government or governmental authority or agency or court
having jurisdiction over the Company or any of its subsidiaries or any
of their assets, properties or operations.
(i) The summaries of the terms of the Notes and the Senior
Note First Mortgage Bonds contained in the Registration Statement and
Prospectus fairly describe the provisions thereof required to be
described by the registration statement form.
(j) The Company does not have any significant subsidiaries as
defined in Rule 1-02 of Regulation S-X promulgated under the Securities
Act.
(k) Neither the Company nor any of its subsidiaries is an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended (the "1940 Act").
(l) Except as described in or contemplated by the Prospectus,
there are no pending actions, suits or proceedings against or affecting
the Company or any of its subsidiaries or properties which are likely
in the aggregate, to result in any material adverse change in the
business, property, financial condition or prospects of the Company and
its subsidiaries considered as a whole or which are likely in the
aggregate to materially and adversely affect the consummation of this
Agreement, the Senior Note Indenture, the Mortgage, the Notes, the
Senior Note First Mortgage Bonds or the transactions contemplated
herein or therein.
(m) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder in connection
with the offering, issuance or sale of the Securities hereunder or the
consummation of the transactions herein contemplated or for the due
execution, delivery or performance of the Senior Note Indenture and the
Mortgage by the Company, except such as have been already obtained or
as may be required under the Securities Act or state securities laws
and except for the qualification of the Indenture under the 1939 Act.
(n) The Senior Note Indenture and the Mortgage (A) have been
duly authorized, executed and delivered by the Company, and, assuming
due authorization, execution and delivery by the Trustee and the
Mortgage Trustees, respectively, constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or similar
laws affecting creditor's rights generally and (ii) general principles
of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity and except the effect on enforceability
of federal or state law limiting, delaying or prohibiting the making of
payments outside the United States); and (B) conform in all material
respects to the descriptions thereof in the Prospectus.
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 Notes set forth
opposite the name of such Underwriter in Schedule II hereto at the purchase
price set forth in Schedule I hereto.
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5. Reoffering by Underwriters. The Underwriters agree to make promptly
a bona fide public offering of the Notes 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 Notes shall be made at the place, time and
date specified in Schedule I hereto against delivery of the Notes at
the office of The Bank of New York, 101 Barclay Street, New York, New
York 10286, 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 Notes
shall be by wire transfer of immediately available funds against
delivery of the Notes to The Depository Trust Company or to The Bank of
New York, as custodian for The Depository Trust Company, in fully
registered global form registered in the name of Cede & Co., for the
respective accounts specified by the Representative not later than the
close of business on the business day prior to the Closing Date or such
other date and time not later than the Closing Date as agreed by The
Depository Trust Company or The Bank of New York. For the purpose of
expediting the checking of the certificates by the Representative, the
Company agrees to make the Notes 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 Notes 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 Notes 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
Notes to be purchased by 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 Notes set forth opposite their
respective names in Schedule II hereto) the principal amount of the
Notes 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 Notes 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 Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase. If any unpurchased Notes
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 Notes 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
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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 (i) neither the non-defaulting Underwriters nor the
Company has arranged for the purchase of such unpurchased Notes by
another party or parties as above provided and (ii) the Company and the
non-defaulting Underwriters have not mutually agreed to offer and sell
the Notes other than the unpurchased Notes, 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 Notes 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
Notes. The Company will promptly deliver to the Representative and to
counsel for the Underwriters, to the extent not previously delivered,
one fully executed copy or one conformed copy, certified by an officer
of the Company, of the Registration Statement, as originally filed, and
of all amendments thereto, heretofore or hereafter made, (other than
those relating solely to securities other than the Notes), 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 Notes 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 opinion of the
Company's counsel or the Underwriters' counsel 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 Notes, 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.
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(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 earning 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 Notes.
(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 Notes
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.
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 Notes 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 Notes 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, (vii) the
preparation, execution, filing and recording by the Company of the Sixty-eighth
Supplemental Indenture (such filing and recordation to be promptly made, after
execution and delivery of such Sixty-eighth Supplemental Indenture to the
Mortgage 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 Notes and the filing
and recordation of the Sixty-eighth Supplemental Indenture, and (viii) any
filings required in order to perfect the interests of the Senior Note Trustee in
the Senior Note First Mortgage Bonds and the proceeds thereof.
The fees and disbursements of Underwriters' counsel shall be paid by
the Underwriters (subject, however, to the provisions of the preceding paragraph
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 fees and
disbursements of Underwriters' counsel. The Company shall not be required to pay
any amount for any expenses of the Representative or of any other of the
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Underwriters except as provided in paragraph 7 and in this 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.
9. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters to purchase and pay for the Notes shall be subject to the
accuracy of the representations and warranties on the part of the Company as of
the date hereof and the Closing Date, 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, no
proceedings for that purpose shall be pending before, or, to the
knowledge of the Company, threatened by, the Commission on the Closing
Date; and the Representative shall have received, prior to payment for
the Notes, 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) At the time of execution 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 Notes and the Senior Note First Mortgage Bonds, 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 counsel for the
Underwriters, contains any such unacceptable provision).
(c) At the Closing Date, the Representative shall receive
favorable opinions from: (1) Hunton & Williams, counsel to the Company,
which opinion shall be satisfactory in form and substance to counsel
for the Underwriters, and (2) Winthrop, Stimson, Putnam & Roberts,
counsel for the Underwriters, in each of which opinions (except as to
subdivisions (viii) (as to documents incorporated by reference, at the
time they were filed with the Commission) and (x) of this subparagraph
(c), as to which Winthrop, Stimson, Putnam & Roberts need express no
opinion) said counsel (except Hunton & Williams as to North Carolina
law) may rely as to all matters of North Carolina and South Carolina
law upon the opinions of William D. Johnson, Esq., Senior Vice
President and Corporate Secretary for the Company, and Nelson Mullins
Riley & Scarborough, L.L.P., respectively, to the effect that:
(i) The Senior Note 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 obligation 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 and any implied covenant of
good faith and fair dealing; provided, however, that certain
remedies, waivers and other provisions of the Senior Note
Indenture may not be enforceable, but such unenforceability
will not render the Senior Note Indenture invalid as a whole
or affect the judicial enforcement of (i) the obligation of
the Company to repay the principal, together with the interest
thereon as provided in the Notes or (ii) the right of the
Trustee to collect amounts due under the Senior Note First
Mortgage Bonds;
(ii) The Mortgage has been duly and validly
authorized by all necessary corporate action (with this
opinion required in the Hunton & Williams opinion as to only
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<PAGE>
the original Mortgage, the Sixty-fourth Supplemental
Indenture, and subsequent Supplemental Indentures), has been
duly and validly executed and delivered by the Company (with
this opinion required in the Hunton & Williams opinion as to
only the Sixty-fourth Supplemental Indenture and subsequent
Supplemental Indentures), 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 and any implied covenant of good faith
and fair dealing; provided, however, that certain remedies,
waivers and other provisions of the Mortgage may not be
enforceable, but such unenforceability will not render the
Mortgage invalid as a whole or affect the judicial enforcement
of (i) the obligation of the Company to repay the principal,
together with the interest thereon as provided in the Senior
Note First Mortgage Bonds or (ii) the right of the Mortgage
Trustees to exercise their right to foreclose under the
Mortgage;
(iii) The Mortgage and the Senior Note Indenture have been
duly qualified under the 1939 Act;
(iv) The Notes have been duly and validly authorized,
executed and delivered by the Company and, assuming
authentication by the Trustee (as defined in the Senior Note
Indenture) in accordance with the Senior Note Indenture and
delivery to and payment for the Notes by the Underwriters, as
provided in this Agreement, the Notes 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, and the Notes are
entitled to the benefits of the security afforded by the
Senior Note Indenture and will be secured equally and ratably
with all other notes which may be issued under the Senior Note
Indenture except insofar as any sinking or other fund may
afford additional security for the notes of any particular
series;
(v) The Senior Note First Mortgage Bonds have been
duly and validly authorized, executed and delivered by the
Company and, assuming authentication by the Corporate Trustee
(as defined in the Mortgage) in accordance with the Mortgage
and delivery to and payment for the Notes by the Underwriters,
as provided in this Agreement, the Senior Note First Mortgage
Bonds 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,
and the Senior Note First Mortgage Bonds are entitled to the
benefits 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;
(vi) The statements made in the Prospectus under the
captions "Description of First Mortgage Bonds" and
"Description of Senior Notes" and in the Prospectus Supplement
under the caption "Description of the Notes" insofar as they
purport to constitute summaries of the documents referred to
therein, are correct in all material respects;
(vii) This Agreement has been duly and validly authorized,
executed and delivered by the Company;
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<PAGE>
(viii) 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 effective under the Securities Act and, to the best of
the knowledge of said counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued
and not withdrawn and no proceedings for a stop order with
respect thereto are threatened or pending under Section 8 of
the Securities Act;
(ix) 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
(x) Orders have been entered by the North Carolina
Utilities Commission and the South Carolina Public Service
Commission authorizing the issuance and sale of the Notes and
the Senior Note First Mortgage Bonds, 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 (except such as have
been obtained under the Securities Act and as may be required
under the state securities or Blue Sky laws of any
jurisdiction) is legally required for the consummation of the
transactions contemplated in this Agreement.
(d) At the Closing Date, the Representative shall receive from
William D. Johnson, Esq., Senior Vice President and Corporate Secretary
for the Company, a favorable opinion in form and substance satisfactory
to counsel for the Underwriters, to the same effect with respect to the
matters enumerated in subdivisions (i) through (vii) and subdivisions
(ix) and (x) 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 duly qualified to do
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<PAGE>
business as an electrical utility 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 and subsisting
franchises, licenses and permits free from burdensome
restrictions and adequate for the conduct of its business;
(iv) The Company has good and marketable title, with
minor exceptions, restrictions and reservations in
conveyances, and defects, which are of the nature ordinarily
found in properties of similar character and magnitude, and
which, in his opinion, cannot in any substantial way impair
the security afforded by the Mortgage, to all the properties
described in the granting clauses of the Mortgage and upon
which the Mortgage purports to create a lien, except certain
rights-of-way over private property on which are located
transmission and distribution lines formerly owned by the Tide
Water Power Company (merged into the Company on February 29,
1952), title to which can be perfected by condemnation
proceedings. The description in the Mortgage of the
above-mentioned properties (including those formerly owned by
Tide Water Power Company) is legally sufficient to constitute
the Mortgage a lien upon said properties. 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;
(v) The Company's Mortgage and Deed of Trust dated as
of May 1, 1940 and the First through the Sixty-seventh
Supplemental Indentures thereto have been recorded and filed
in such manner and in such places as may be required by law in
order fully to preserve and protect the security of the
bondholders and all rights of the Mortgage Trustees
thereunder; and the Sixty-eighth Supplemental Indenture
relating to the Senior Note First Mortgage Bonds 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
(except as any therein or in the
11
<PAGE>
Mortgage are expressly excepted) described therein or in the
Mortgage as subject to the lien of the Mortgage is located;
(vi) 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 (ii) of
subparagraph (c) above;
(vii) The issuance and sale of the Notes and the
issuance and delivery of the Senior Note First Mortgage Bonds
have been duly authorized by all necessary corporate action on
the part of the Company;
(viii) Except as described in or contemplated by the
Prospectus, there are no pending actions, suits or proceedings
against or affecting the Company or any of its subsidiaries or
properties which are likely, in the aggregate, to result in
any material adverse change in the business, property,
financial condition, earnings, business affairs, or business
prospects of the Company and its subsidiaries considered as a
whole or which are likely, in the aggregate, to materially and
adversely affect the consummation of this Agreement, the
Senior Note Indenture, the Notes or the transactions
contemplated herein or therein; and
(ix) 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, the Charter, the Company's
by-laws, applicable law or any indenture, mortgage, deed of
trust or other agreement or instrument to which the Company is
now a party or any judgment, order, writ or decree of any
government or governmental authority or agency or court having
jurisdiction over the Company or any of its subsidiaries or
any of their assets, properties or operations.
In said opinion such counsel may rely as to all matters of South Carolina law
(except as to subdivisions (iii), (iv) and (vi) of this subparagraph (d)) on the
opinion of Nelson Mullins Riley & Scarborough, L.L.P., and as to all matters of
New York law on the opinion of Hunton & Williams.
(e) At the Closing Date, the Representative shall receive
from Nelson Mullins Riley & Scarborough, L.L.P., a favorable opinion
in form and substance satisfactory to counsel for the Underwriters, to
the effect that:
(i) The Company is an electrical utility engaged in
the business of generating, transmitting, distributing and
selling electric power to the general public in the States of
South Carolina and North Carolina. The Company conducts its
South Carolina retail operations subject to the jurisdiction
of the South Carolina Public Service Commission pursuant to
South Carolina Code Annotated, Sections 58-27-10 et seq. (1976
as amended);
(ii) The Company is duly qualified to transact business
in the State of South Carolina;
(iii) The Company's Mortgage and Deed of Trust dated
as of May 1, 1940 and the First through the Sixty-seventh
Supplemental Indentures thereto have been
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<PAGE>
recorded and filed in such manner and in such places as may
be required by law, in the State of South Carolina, in order
fully to preserve and protect the security of the bondholders
and all rights of the Mortgage Trustees thereunder;
(iv) The Sixty-eighth Supplemental Indenture relating
to the Senior Note First Mortgage Bonds is in proper form for
filing for record both as a real estate mortgage and as a
security interest in all counties in the State of South
Carolina in which any of the property (except as any therein
or in the Mortgage, are expressly excepted) described therein
or in the Mortgage as subject to the lien of the Mortgage is
located;
(v) They have reviewed the opinion letter of even
date therewith addressed to you by William D. Johnson, Esq.,
Senior Vice President and Corporate Secretary for the Company,
and they concur, insofar as they relate to the laws of the
State of South Carolina, with the opinions that he has
expressed therein corresponding with subdivisions (ii) and (x)
of subparagraph (c) of this paragraph 9, and subdivisions (i)
and (vi) of subparagraph (d) of this paragraph 9; and
(f) At the Closing Date, the Representative shall have
received from Deloitte & Touche LLP a letter, dated 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 accounting
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 three business days prior to the date of the 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 the 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
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<PAGE>
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 Notes shall have been satisfactory in form and
substance to 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 Notes and the Senior Note First Mortgage Bonds 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 Notes and the
Senior Note First Mortgage Bonds, 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
(when and as incurred) 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
14
<PAGE>
and in conformity with information furnished herein or in writing to
the Company by any Underwriter through the Representative expressly
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 Mortgage Trustees under the Mortgage and the
Senior Note Trustee under the Senior Note 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
Notes 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, unless such Prospectus
failed to correct the omission or misstatement. 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 Notes.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, its officers and directors,
and each person who controls the Company 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 (when and as incurred) 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 and in conformity with information
furnished herein or in writing to the Company by such Underwriter
through the Representative 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 Notes.
(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 Company and each of the Underwriters
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 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
15
<PAGE>
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, as such expenses are
incurred; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and
counsel for the indemnified party shall have reasonably concluded that
there may be a conflict of interest involved in the representation by
one 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).
(d) If the indemnification provided for in subparagraphs (a)
or (b) above is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities,
claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, from the offering of the Notes
pursuant to this Agreement or (ii) if the allocation provided by clause
(i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company, on the one
hand, and of the Underwriters, on the other hand, in connection with
the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the
one hand, and the Underwriters, on the other hand, in connection with
the offering of the Notes pursuant to this Agreement shall be deemed to
be in the same respective proportions as the total net proceeds from
the offering of the Notes pursuant to this Agreement (before deducting
expenses) received by the Company and the total underwriting discount
received by the Underwriters, in each case as set forth on the cover of
the Prospectus, bear to the aggregate initial public offering price of
the Notes as set forth on such cover. The relative fault of the
Company, on the one hand, and the Underwriters, on the other hand,
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this paragraph (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this
paragraph (d). No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if
any, who controls an Underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act shall have the
16
<PAGE>
same rights to contribution as such Underwriter, and each director of
the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the Company.
The Underwriters' respective obligations to contribute pursuant to this
paragraph (d) are several in proportion to the number of Notes set
forth opposite their respective names in Schedule II hereto and not
joint.
(e) For purposes of this paragraph 11, it is understood and
agreed that the only information provided by the Underwriters for
inclusion in the Prospectus were the following parts of the section of
the Prospectus Supplement titled "Underwriting": the last three
sentences of the second paragraph, the third sentence of the third
paragraph, and all of the fourth paragraph.
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 on or after the
date of this Agreement but 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 Notes, 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 Notes and the delivery of the Notes by the several Underwriters
at the initial public offering price or (d) there shall have been any
downgrading or any notice of any intended or potential downgrading in the rating
accorded the Company's securities by any "nationally recognized statistical
rating organization" as that term is defined by the Commission for the purposes
of Securities Act Rule 436(g)(2), or any such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of the Notes, the Senior Note First Mortgage Bonds or
any of the Company's other outstanding debt, the effect of which in the
reasonable judgment of the Representative, makes it impracticable or inadvisable
to consummate the sale of the Notes and the delivery of the Notes 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 Notes. 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.
17
<PAGE>
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 Notes from any of the several Underwriters.
14. Notices. All communications hereunder shall be in writing or by
telefax 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 Mark F. Mulhern, 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.
16. Defined Terms. Unless otherwise defined herein, capitalized terms
used in this Underwriting Agreement shall have the meanings assigned to them in
the Registration Statement.
[The remainder of this page has been intentionally left blank.]
18
<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: /s/ Mark F. Mulhhern
--------------------------------------
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.
CHASE SECURITIES INC.
By: /S/ Robert Gelnaw
---------------------------------------
Authorized Representative
BANC ONE CAPITAL MARKETS, INC.
By: /S/ Katherine Cokic
---------------------------------------
Authorized Representative
19
<PAGE>
SCHEDULE I
Underwriting Agreement dated April 5, 2000
Registration Statement No. 333-69237
Representative and Addresses:
Chase Securities Inc.
270 Park Avenue, 8th Floor
New York, New York 10017-2070
Attention: Peter Madonia
with a copy of any notice pursuant to Section 11(a) to:
One Chase Manhattan Plaza
26th Floor
New York, New York 10081
Attention: Legal Department
Banc One Capital Markets, Inc.
1 Bank One Plaza, IL1-0595
Chicago, Illinois 60670
Attention: Evonne Taylor
Designation: Senior Notes, 7.50% Series Due April 1, 2005
Principal Amount: $300,000,000
Secured by: First Mortgage Bonds, 7.50% Senior Note Series Due
April 1, 2005
Indenture: Indenture (For Senior Notes) dated as of March 1,
1999, as previously supplemented, and Second
Supplemental Indenture, dated as of April 1, 2000,
to Indenture (For Senior Notes)
Date of Maturity: April 1, 2005
Interest Rate: 7.50% per annum, payable April 1 and October 1 of
each year, commencing October 1, 2000.
Record Dates: March 15 and September 15, commencing September 15,
2000.
Purchase Price: 99.187% of the principal amount thereof.
Public Offering Price: 99.787% of the principal amount thereof.
Redemption Terms: Redeemable prior to maturity at the option of
the Company at the greater of (i) the outstanding
principal amount or (ii) the present value of the
remaining payments, computed by discounting at the
Treasury Yield plus 25 basis points (as defined, and
described in further detail, in the Prospectus
Supplement).
20
<PAGE>
Closing Date and Location:
April 11, 2000
Hunton & Williams
One Hannover Square, 14th Floor
Raleigh, North Carolina 27601
21
<PAGE>
SCHEDULE II
Underwriters Principal Amount
------------ ----------------
Banc One Capital Markets, Inc. $ 82,500,000
Chase Securities Inc. $ 82,500,000
First Union Securities, Inc. $ 45,000,000
J.P. Morgan Securities Inc. $ 45,000,000
Wachovia Securities, Inc. $ 45,000,000
TOTAL............... $300,000,000
============
22
Exhibit 4(a)
COUNTERPART 1
OF 20 COUNTERPARTS
--------------------------------------------------
CAROLINA POWER & LIGHT COMPANY
TO
THE BANK OF NEW YORK,
TRUSTEE
------------
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF APRIL 1, 2000
TO
INDENTURE
(FOR SENIOR NOTES)
DATED AS OF MARCH 1, 1999
--------------------------------------------------
SENIOR NOTES, 7.50% SERIES DUE APRIL 1, 2005
<PAGE>
THIS SECOND SUPPLEMENTAL INDENTURE, dated as of April 1, 2000, between
CAROLINA POWER & LIGHT COMPANY, a corporation duly organized and existing under
the laws of the State of North Carolina (herein called the "Company"), having
its principal office at 411 Fayetteville Street, Raleigh, North Carolina
27601-1748, and THE BANK OF NEW YORK, a banking corporation of the State of New
York, having its principal office at 101 Barclay Street, New York, New York,
10286, as Trustee (herein called the "Trustee") under the Indenture (For Senior
Notes) dated as of March 1, 1999 between the Company and the Trustee (the
"Indenture").
RECITALS OF THE COMPANY
A. The Company has executed and delivered the Indenture to the Trustee
to provide for the issuance from time to time of its Senior Notes (the "Notes"),
said Notes to be issued in one or more series as in the Indenture provided.
B. The Company has executed and delivered to the Trustee the following
indenture supplemental to the Indenture: a First Supplemental Indenture, dated
as of March 1, 1999, which established the form and terms of a series of Notes.
C. Pursuant to the terms of the Indenture, the Company desires to
establish a new series of its Notes to be known as its Senior Notes, 7.50%
Series Due April 1, 2005 (herein called the "Senior Notes Due 2005"), the form
and substance of such Senior Notes Due 2005 and the terms, provisions, and
conditions thereof to be set forth as provided in the Indenture and this Second
Supplemental Indenture.
D. All things necessary to make this Second Supplemental Indenture a
valid agreement of the Company, and to make the Senior Notes Due 2005, when
executed by the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company, have been done.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Senior
Notes Due 2005 by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Senior Notes Due 2005
and the terms, provisions, and conditions thereof, it is mutually agreed, for
the equal and proportionate benefit of all Holders of the Senior Notes Due 2005,
as follows:
ARTICLE I
GENERAL TERMS AND CONDITIONS OF THE SENIOR NOTES DUE 2005
SECTION 101. There is hereby established a series of Notes designated
the "Senior Notes, ____% Series Due April 1, 2005." The Notes of such series
shall be initially authenticated and delivered from time to time upon delivery
to the Trustee of the documents required by Section 303 of the Indenture
including, among other things, a Company Order for the authentication and
delivery of Senior Notes Due 2005.
<PAGE>
SECTION 102. (a) The Senior Notes Due 2005 shall be issued in
registered form without coupons and shall be issued initially in the form of one
or more Global Notes (each such Global Note, a "Senior Note Due 2005 Global
Note") to or on behalf of The Depository Trust Company ("DTC"), as Depositary
therefor, and registered in the name of such Depositary or its nominee. Any
Senior Notes Due 2005 to be issued or transferred to, or to be held by or on
behalf of DTC as such Depositary or such nominee (or any successor of such
nominee) for such purpose shall bear the depositary legends in substantially the
form set forth at the top of the form of Senior Notes Due 2005 in Article III
hereof, unless otherwise agreed by the Company, and in the case of a successor
Depositary, such legend or legends as such Depositary and/or the Company shall
require and to which they shall agree, in each case such agreement to be
confirmed in writing to the Trustee. Principal of, and premium, if any, and
interest on the Senior Notes Due 2005 will be payable, the transfer of Senior
Notes Due 2005 will be registrable and Senior Notes Due 2005 will be
exchangeable for Senior Notes Due 2005 bearing identical terms and provisions,
at the office or agency of the Company in the Borough of Manhattan, The City and
State of New York; PROVIDED, HOWEVER, that payment of interest may be made at
the option of the Company by check mailed to the registered Holders thereof at
such address as shall appear in the Note Register; and FURTHER PROVIDED,
HOWEVER, that with respect to a Senior Note Due 2005 Global Note, the Company
may make payments of principal of, and premium, if any, and interest on such
Senior Note Due 2005 Global Note pursuant to and in accordance with such
arrangements as are agreed upon by the Company and the Depositary for such
Senior Note Due 2005 Global Note. The Senior Notes Due 2005 shall have the terms
set forth in the form of the Senior Notes Due 2005 set forth in Article III
hereof.
(b) Notwithstanding any other provision of this Section
102 or of Section 305 of the Indenture, except as contemplated by the provisions
of paragraph (c) below, a Senior Note Due 2005 Global Note may be transferred,
in whole but not in part and in the manner provided in Section 305 of the
Indenture, only to a nominee of the Depositary for such Senior Note Due 2005
Global Note, or to the Depositary, or to a successor Depositary for such Senior
Note Due 2005 Global Note selected or approved by the Company, or to a nominee
of such successor Depositary.
(c) (1) If at any time the Depositary for a Senior Note
Due 2005 Global Note notifies the Company that it is unwilling or unable to
continue as the Depositary for such Senior Note Due 2005 Global Note or if at
any time the Depositary for a Senior Note Due 2005 Global Note shall no longer
be eligible or in good standing under the Exchange Act, or other applicable
statute or regulation, the Company shall appoint a successor Depositary with
respect to such Senior Note Due 2005 Global Note. If a successor Depositary for
such Global Note is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Company
will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of Senior Notes Due 2005 in the form of definitive
certificates in exchange for such Senior Note Due 2005 Global Note, will
authenticate and deliver Senior Notes Due 2005 in the form of definitive
certificates of like tenor and terms in an aggregate principal amount equal to
the principal amount of the Senior Note Due 2005 Global Note in exchange for
such Senior Note Due 2005 Global Note. Such Senior Notes Due 2005 will be issued
to and registered in the name of such Person or Persons as are specified by the
Depositary.
(2) The Company may at any time and in its sole
discretion determine that any Senior Notes Due 2005 issued or issuable in the
form of one or more Senior Note Due 2005 Global Notes shall no longer be
represented by such Global Note or Notes. In any such event the Company will
execute, and the Trustee, upon receipt of a Company Request for the
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<PAGE>
authentication and delivery of Senior Notes Due 2005 in the form of definitive
certificates in exchange in whole or in part for such Senior Note Due 2005
Global Note or Notes, will authenticate and deliver without service charge, to
each Person specified by the Depositary, Senior Notes Due 2005 in the form of
definitive certificates of like tenor and terms in an aggregate principal amount
equal to the principal amount of such Senior Note Due 2005 Global Note or the
aggregate principal amount of such Senior Note Due 2005 Global Notes in exchange
for such Senior Note Due 2005 Global Note or Notes.
(3) If the Company so elects in an Officer's
Certificate, the Depositary may surrender Senior Notes Due 2005 issued in the
form of a Global Note in exchange in whole or in part for Senior Notes Due 2005
in the form of definitive certificates of like tenor and terms on such terms as
are acceptable to the Company and such Depositary. Thereupon the Company shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(A) to each Person specified by such Depositary a new Senior Note Due 2005 or
Senior Notes Due 2005 of like tenor and terms and any authorized denomination as
requested by such Person in aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Note; and (B) to such
Depositary a new Senior Note Due 2005 Global Note of like tenor and terms and in
an authorized denomination equal to the difference, if any, between the
principal amount of the surrendered Global Note and the aggregate principal
amount of Notes delivered to Holders thereof.
(4) In any exchange provided for in any of the
preceding three subparagraphs, the Company shall execute and the Trustee shall
authenticate and deliver Senior Notes Due 2005 in the form of definitive
certificates in authorized denominations. Upon the exchange of the entire
principal amount of a Senior Note Due 2005 Global Note for Senior Notes Due 2005
in the form of definitive certificates, such Senior Note Due 2005 Global Note
shall be canceled by the Trustee. Except as provided in the immediately
preceding subparagraph, Senior Notes Due 2005 issued in exchange for a Senior
Note Due 2005 Global Note pursuant to this Section 102 shall be registered in
such names and in such authorized denominations as the Depositary for such
Senior Note Due 2005 Global Note, acting pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee.
Provided that the Company and the Trustee have so agreed, the Trustee shall
deliver such Senior Notes Due 2005 to the Persons in whose names the Senior
Notes Due 2005 are so to be registered.
(5) Any endorsement of a Senior Note Due 2005 Global
Note to reflect the principal amount thereof, or any increase or decrease in
such principal amount, shall be made in such manner and by such Person or
Persons as shall be specified in or pursuant to any applicable letter of
representations or other arrangement entered into with, or procedures of, the
Depositary with respect to such Senior Note Due 2005 Global Note or in the
Company Order delivered or to be delivered pursuant to Section 303 of the
Indenture with respect thereto. Subject to the provisions of Section 303 of the
Indenture, the Trustee shall deliver and redeliver any such Global Note in the
manner and upon instructions given by the Person or Persons specified in or
pursuant to any applicable letter of representations or other arrangement
entered into with, or procedures of, the Depositary with respect to such Senior
Note Due 2005 Global Note or in any applicable Company Order. If a Company Order
pursuant to Section 303 of the Indenture is so delivered, any instructions by
the Company with respect to such Senior Note Due 2005 Global Note contained
therein shall be in writing but need not be accompanied by or contained in an
Officer's Certificate and need not be accompanied by an Opinion of Counsel.
3
<PAGE>
(6) The Depositary or, if there be one, its nominee,
shall be the Holder of a Senior Note Due 2005 Global Note for all purposes under
the Indenture and the Senior Notes Due 2005 and beneficial owners with respect
to such Global Note shall hold their interests pursuant to applicable procedures
of such Depositary. The Company, the Trustee and the Note Registrar shall be
entitled to deal with such Depositary for all purposes of the Indenture relating
to such Global Note (including the payment of principal, premium, if any, and
interest and the giving of instructions or directions by or to the beneficial
owners of such Global Note as the sole Holder of such Global Note and shall have
no obligations to the beneficial owners thereof (including any direct or
indirect participants in such Depositary. None of the Company, the Trustee, any
Paying Agent or the Note Registrar shall have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of a in or pursuant to any applicable letter of
representations or other arrangement entered into with, or procedures of, the
Depositary with respect to such Senior Note Due 2005 Global Note Global Note or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
SECTION 103. The Company may, at its option, redeem, at any time, all,
or, from time to time, any part of the Senior Notes Due 2005, upon notice as
provided in the Indenture (not less than 30 nor more than 60 days prior to a
date fixed for redemption (the "Redemption Date")) at a redemption price equal
to the greater of (i) 100% of their principal amount or (ii) the sum of the
present values of the remaining scheduled payments of principal and interest
thereon from the Redemption Date to the maturity date, computed by discounting
such payments, in each case, to the Redemption Date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Yield plus 25 basis points (.25%), plus in each case accrued interest on the
principal amount thereof to the Redemption Date (the "Redemption Price"), such
Redemption Price to be set forth in an Officer's Certificate delivered to the
Trustee on or before the Redemption Date and upon which the Trustee may
conclusively rely.
For purposes of this Section 103, the following terms shall have the
following meanings:
"Treasury Yield" means, with respect to any Redemption Date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker having a maturity comparable to the
remaining term of the Senior Notes Due 2005 that would be utilized, at the time
of selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the Senior Notes Due 2005. "Independent Investment Banker" means Chase
Securities Inc. or, if such firm is unwilling or unable to select the Comparable
Treasury Issue, an independent investment banking institution of national
standing selected by the Company and appointed by the Trustee.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such
4
<PAGE>
release (or any successor release) is not published or does not contain such
prices on such business day, the average of the Reference Treasury Dealer
Quotations for such Redemption Date.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third business day preceding such Redemption Date. The Company shall furnish the
Trustee a notice in writing at least five business days and not more than ten
business days prior to such Redemption Date of (a) the name of each Reference
Treasury Dealer, (b) the Redemption Date, and (c) the third business day
preceding the Redemption Date.
"Reference Treasury Dealer" means each of Banc One Capital Markets,
Inc., Chase Securities Inc. and J.P. Morgan Securities Inc., and their
respective successors; provided, however, that if any of the foregoing shall
cease to be a primary U.S. Government Securities dealer in New York City (a
"Primary Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer.
The Company shall deliver to the Trustee the Officer's Certificate
referred to above in this Section 103 setting forth the Company's calculation of
the Redemption Price applicable to any such redemption promptly after the
calculation thereof but, in any event, prior to the Redemption Date of any such
Senior Notes Due 2005. Except with respect to the obligations of the Trustee
expressly set forth in the foregoing definition of "Reference Treasury Dealer
Quotations," the Trustee shall be under no duty to inquire into, may presume the
correctness of, and shall be fully protected in acting upon the Company's
calculation of any Redemption Price of the Senior Notes Due 2005.
SECTION 104. The Company has issued pursuant to the Sixty-eighth
Supplemental Indenture to the First Mortgage, and hereby delivers to the Trustee
for the benefit of the Holders of all Notes from time to time Outstanding under
the Indenture, a series of Senior Note First Mortgage Bonds designated the
"First Mortgage Bonds, 7.50% Senior Note Series Due 2005." Such Senior Note
First Mortgage Bonds have the same rate or rates of interest (or interest
calculated in the same manner) (including interest payable following a default
on the Senior Notes Due 2005), interest payment dates, maturity and redemption
provisions, and have been issued in the same aggregate principal amount, as the
Senior Notes Due 2005.
SECTION 105. When the obligation of the Company to make payments with
respect to the principal of, and premium, if any, and interest on all or any
part of the Senior Note First Mortgage Bonds delivered pursuant to Section 104
of this Second Supplemental Indenture shall be satisfied or deemed satisfied
pursuant to Section 403, Section 801 or Section 802 of the Indenture or pursuant
to Section 103 of this Second Supplemental Indenture, the Trustee shall, upon
written request of the Company and the receipt of the certificate of the Expert
described in Section 404(b) of the Indenture (if such certificate is then
required by Section 404(b) of the Indenture), deliver to the Company without
charge therefor all of the Senior Note First Mortgage Bonds so satisfied or
deemed satisfied, together with such appropriate instruments of transfer or
release as may be reasonably requested by the Company. All Senior Note First
Mortgage Bonds delivered to the Company in accordance with this Section 105
shall be delivered by the Company to the Mortgage Trustee for cancellation.
5
<PAGE>
SECTION 106. The Senior Notes Due 2005 shall be defeasible pursuant to
Section 801 of the Indenture.
ARTICLE II
ADDITIONAL COVENANTS
SECTION 201. (a) From and after the Release Date and so long as any
Senior Notes Due 2005 are Outstanding, the Company will not issue, assume, or
guarantee (including any contingent obligation to purchase) any Debt secured by
any mortgage, security interest, pledge, or lien (herein referred to as a
"Lien") of or upon any Operating Property of the Company, whether owned at the
date of the Indenture or thereafter acquired, and will not permit to exist any
Debt secured by a Lien on any Operating Property created on or prior to the
Release Date, without in any such case effectively securing, on the later to
occur of the issuance, assumption, or guarantee of any such Debt or the Release
Date, the Outstanding Senior Notes Due 2005 (together with, if the Company shall
so determine, any other Note or Debt of or guaranteed by the Company ranking
equally with, the Senior Notes Due 2005) equally and ratably with such Debt;
provided, however, that the foregoing restriction shall not apply to Debt
secured by any of the following:
(1) Liens on any Operating Property existing
at the time of acquisition thereof and not created in contemplation of such
acquisition;
(2) Liens on Operating Property of a
corporation existing at the time such corporation is merged into or consolidated
with the Company, or at the time of a sale, lease, or other disposition of the
properties of such corporation or a division thereof as an entirety or
substantially as an entirety to the Company, provided that such Lien as a result
of such merger, consolidation, sale, lease, or other disposition is not extended
to property owned by the Company immediately prior thereto and is not created in
contemplation of such merger, consolidation, sale, lease or other disposition;
(3) Liens on Operating Property to secure
all or part of the cost of acquiring, constructing, developing, or substantially
repairing, altering, or improving such property, or to secure indebtedness
incurred to provide funds for any such purpose or for reimbursement of funds
previously expended for any such purpose, provided such Liens are created or
assumed contemporaneously with, or within eighteen (18) months after, such
acquisition or completion of construction, development, or substantial repair,
alteration, or improvement or within six (6) months thereafter pursuant to a
commitment for financing arranged with a lender or investor within such eighteen
(18) month period;
(4) Liens in favor of the United States of
America or any State thereof, or any department, agency, or instrumentality or
political subdivision of the United States of America or any State thereof, or
for the benefit of holders of securities issued by any such entity, to secure
any Debt incurred for the purpose of financing all or any part of the purchase
price or the cost of constructing, developing, or substantially repairing,
altering, or improving the property subject to such Liens; or
(5) any extension, renewal or replacement
(or successive extensions, renewals, or replacements), in whole or in part, of
any Lien referred to in the foregoing clauses (1) to (4), inclusive; provided,
however, that the principal amount of Debt secured thereby
6
<PAGE>
and not otherwise authorized by said clauses (1) to (4), inclusive, shall not
exceed the principal amount of Debt, plus any premium or fee payable in
connection with any such extension, renewal, or replacement, so secured at the
time of such extension, renewal, or replacement.
(b) Notwithstanding the provisions of Section 201(a),
from and after the Release Date and so long as any Senior Notes Due 2005 are
Outstanding, the Company may issue, assume, or guarantee Debt, or permit to
exist Debt, secured by Liens which would otherwise be subject to the
restrictions of Section 201(a) up to an aggregate principal amount that,
together with the principal amount of all other Debt of the Company secured by
Liens (other than Liens permitted by Section 201(a) that would otherwise be
subject to the foregoing restrictions) and the Value of all Sale and Lease-Back
Transactions in existence at such time (other than (i) any Sale and Lease-Back
Transaction that, if such Sale and Lease-Back Transaction had been a Lien, would
have been permitted by Section 201(a), (ii) Sale and Lease-Back Transactions
permitted by Section 202 because the commitment by or on behalf of the purchaser
was obtained no later than eighteen (18) months after the later of events
described in (i) or (ii) of Section 202, and (iii) Sale and Lease-Back
Transactions as to which application of amounts has been made in accordance
with clause (z) of Section 202), does not at the time exceed the greater of ten
percent (10%) of Net Tangible Assets or ten percent (10%) of Capitalization.
(c) If at any time the Company shall issue, assume,
or guarantee any Debt secured by any Lien and if Section 201(a) requires that
the Outstanding Senior Notes Due 2005 be secured equally and ratably with such
Debt, the Company will promptly execute, at its expense, any instruments
necessary to so equally and ratably secure the Outstanding Senior Notes Due
2005 and deliver the same to the Trustee along with:
(1) an Officers' Certificate stating that
the covenant of the Company contained in Section 201(a) has been complied with;
and
(2) an Opinion of Counsel to the effect
that the Company has complied with the covenant contained in Section 201(a),
and that any instrument executed by the Company in the performance of such
covenant complies with the requirements of such covenant.
In the event that the Company shall hereafter secure
Outstanding Senior Notes Due 2005 equally and ratably with any other obligation
or indebtedness (including other Notes) pursuant to the provisions of this
Section 201, the Trustee is hereby authorized to enter into an indenture or
agreement supplemental hereto and to take such action, if any, as it may, in its
sole and absolute discretion, deem advisable to enable it to enforce effectively
the rights of the Holders of Outstanding Senior Notes Due 2005 so secured,
equally and ratably with such other obligation or indebtedness.
SECTION 202. From and after the Release Date and so long as any Senior
Notes Due 2005 are outstanding, the Company will not enter into any Sale and
Lease-Back Transaction with respect to any Operating Property and will not
permit to remain in effect any Sale and Lease-Back Transaction entered into on
or prior to the Release Date with respect to any Operating Property if, in any
case, the commitment by or on behalf of the purchaser is or was obtained more
than eighteen (18) months after the later of (i) the completion of the
acquisition, construction, or development of such Operating Property or (ii) the
placing in operation of such Operating Property or of such Operating Property as
constructed, developed, or substantially repaired, altered, or improved, unless
7
<PAGE>
(x) the Company would be entitled pursuant to Section 201(a) to issue, assume,
or guarantee Debt secured by a Lien on such Operating Property without equally
and ratably securing the Senior Notes Due 2005 or (y) the Company would be
entitled pursuant to Section 201(b), after giving effect to such Sale and
Lease-Back Transaction, to incur $1.00 of additional Debt secured by Liens
(other than Liens permitted by Section 201(a)) or (z) the Company shall apply or
cause to be applied, in the case of a sale or transfer for cash, an amount equal
to the net proceeds thereof (but not less than the fair value (as determined by
the Company's Chief Financial Officer) of such Operating Property at the date of
such sale or transfer) and, in the case of a sale or transfer otherwise than for
cash, an amount equal to the fair value (as determined by the Board of
Directors) of the Operating Property so leased, to the retirement, within one
hundred eighty (180) days after the later to occur of the effective date of such
Sale and Lease-Back Transaction or the Release Date, of Notes or other Debt of
the Company ranking equally with, the Senior Notes Due 2005; PROVIDED, HOWEVER,
that any such retirement of Notes shall be in accordance with the terms and
provisions of the Indenture and the Senior Notes Due 2005; PROVIDED, FURTHER,
that the amount to be applied to such retirement of Notes or other Debt shall be
reduced by an amount equal to the sum of (a) an amount equal to the redemption
price with respect to Notes delivered within such one hundred eighty (180)-day
period to the Trustee for retirement and cancellation and (b) the principal
amount, plus any premium or fee paid in connection with any redemption in
accordance with the terms of other Debt voluntarily retired by the Company
within such one hundred eighty (180)-day period, excluding in each case
retirements pursuant to mandatory sinking fund or prepayment provisions and
payments at maturity.
SECTION 203. DEFINITIONS
For purposes of Section 201 and Section 202 of this Second Supplemental
Indenture, the following terms shall have the following meanings:
"Capitalization" means the total of all the following items appearing
on, or included in, the consolidated balance sheet of the Company: (i)
liabilities for indebtedness maturing more than twelve (12) months from the date
of determination; and (ii) common stock, preferred stock, premium on capital
stock, capital surplus, capital in excess of par value, and retained earnings
(however the foregoing may be designated), less, to the extent not otherwise
deducted, the cost of shares of capital stock of the Company held in its
treasury.
Subject to the foregoing, Capitalization shall be determined in
accordance with generally accepted accounting principles and practices
applicable to the type of business in which the Company is engaged and that are
approved by independent accountants regularly retained by the Company, and may
be determined as of a date not more than (sixty) 60 days prior to the happening
of an event for which such determination is being made.
The term "Debt" means any outstanding debt for money borrowed evidenced
by notes, debentures, bonds, or other securities, or guarantees of any debt.
The term "Net Tangible Assets" means the amount shown as total assets
on the consolidated balance sheet of the Company, less the following: (i)
intangible assets including, but without limitation, such items as goodwill,
trademarks, trade names, patents, and unamortized debt discount and expense and
other regulatory assets carried as an asset on the Company's consolidated
balance sheet; and (ii) appropriate adjustments, if any, on account of minority
interests.
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<PAGE>
Net Tangible Assets shall be determined in accordance with generally
accepted accounting principles and practices applicable to the type of business
in which the Company is engaged and that are approved by the independent
accountants regularly retained by the Company, and may be determined as of a
date not more than (sixty) 60 days prior to the happening of the event for which
such determination is being made.
The term "Operating Property" means (i) any interest in real property
owned by the Company and (ii) any asset owned by the Company that is depreciable
in accordance with generally accepted accounting principles, excluding in either
case, any interest of the Company as lessee under any lease (except for a lease
that results from a Sale and Lease-Back Transaction) which has been or would be
capitalized on the books of the lessee in accordance with generally accepted
accounting principles.
The term "Sale and Lease-Back Transaction" means any arrangement with
any person providing for the leasing to the Company of any Operating Property
(except for temporary leases for a term, including any renewal or potential
renewal thereof, of not more than forty-eight (48) months), which Operating
Property has been or is to be sold or transferred by the Company to such person;
PROVIDED, HOWEVER, Sale and Lease-Back Transaction shall not include any
arrangement first entered into prior to the date hereof, and shall not include
any transaction pursuant to which the Company sells Operating Property to, and
thereafter purchases energy or services from, any entity if such transaction is
ordered or authorized by any regulatory authority having jurisdiction over the
Company or its operations or is entered into pursuant to any plan or program of
industry restructuring ordered or authorized by any regulatory authority.
The term "Value" means, with respect to a Sale and Lease-Back
Transaction, as of any particular time, the amount equal to the greater of (1)
the net proceeds to the Company from the sale or transfer of the property leased
pursuant to such Sale and Lease-Back Transaction or (2) the net book value of
such property, as determined in accordance with generally accepted accounting
principles by the Company at the time of entering into such Sale and Lease-Back
Transaction, in either case multiplied by a fraction, the numerator of which
shall be equal to the number of full years of the term of the lease that is part
of such Sale and Lease-Back Transaction remaining at the time of determination
and the denominator of which shall be equal to the number of full years of such
term, without regard, in any case, to any renewal or extension options contained
in such lease.
ARTICLE III
FORM OF
SENIOR NOTES DUE 2005
SECTION 301. The Senior Notes Due 2005 and the Trustee's certificate of
authentication to appear thereon are to be substantially in the following forms:
[Form of Face of Senior Notes Due 2005]
[Insert applicable depositary legend or legends, which initially shall be the
following: THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN
9
<PAGE>
SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO CAROLINA POWER
& LIGHT COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SENIOR NOTE DUE 2005 MAY, AS PROVIDED IN THE INDENTURE, BE
EXCHANGED FOR SENIOR NOTES DUE 2005 IN THE FORM OF DEFINITIVE CERTIFICATES OF
LIKE TENOR AND OF AN EQUAL AGGREGATE PRINCIPAL AMOUNT, IN AUTHORIZED
DENOMINATIONS, REGISTERED IN THE NAMES OF SUCH PERSONS AS THE DEPOSITARY SHALL
INSTRUCT THE TRUSTEE, IF (I) THE DEPOSITARY GIVES NOTICE TO THE COMPANY OR TO
THE TRUSTEE THAT IT IS UNWILLING OR UNABLE TO CONTINUE AS DEPOSITARY AND A
SUCCESSOR DEPOSITARY IS NOT APPOINTED BY THE COMPANY WITHIN 90 DAYS, (II) THE
DEPOSITARY CEASES TO BE ELIGIBLE UNDER THE INDENTURE AND A SUCCESSOR DEPOSITARY
IS NOT APPOINTED BY THE COMPANY WITHIN 90 DAYS OR (III) THE COMPANY DECIDES TO
DISCONTINUE USE OF THE SYSTEM OF BOOK-ENTRY TRANSFERS THROUGH THE DEPOSITARY OR
ITS SUCCESSOR. ANY SUCH EXCHANGE SHALL BE MADE UPON RECEIPT BY THE TRUSTEE OF AN
OFFICER'S CERTIFICATE THEREFOR AND A WRITTEN INSTRUCTION FROM THE DEPOSITARY
SETTING FORTH THE NAME OR NAMES IN WHICH THE TRUSTEE IS TO REGISTER SUCH SENIOR
NOTES DUE 2005 IN THE FORM OF DEFINITIVE CERTIFICATES. ]
CAROLINA POWER & LIGHT COMPANY
Senior Notes, 7.50% Series Due April 1, 2005
No. ___ $___________
CUSIP No. _________
Carolina Power & Light Company, a corporation duly organized and
existing under the laws of the State of North Carolina (herein called the
"Company," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_____________, or registered assigns, the principal sum of _____________________
and No/100 Dollars ($_______________) on April 1, 2005, and to pay interest
thereon from April 11, 2000 or from the most recent Interest Payment Date with
respect to which interest has been paid or duly provided for, semi-annually on
April 1 and October 1 in each year (each an "Interest Payment Date"), commencing
October 1, 2000, at the rate of 7.50% per annum, until the principal hereof is
paid or made available for payment, PROVIDED that any principal and premium, and
any such installment of interest, which is overdue shall bear interest at the
rate of 7.50% per annum (to the extent that the payment of such interest shall
be legally enforceable), from the dates such amounts are due until they are paid
or made available for payment, and such interest shall be payable on demand. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest, which shall be March
15 or September 15 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this Note
(or one or more Predecessor Notes) is registered at the close of business on
10
<PAGE>
a Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Notes of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes of this series may be listed, and upon
such notice as may be required by such exchange, all as more fully provided in
said Indenture.
Payment of the principal of (and premium if any) and such interest on
this Note will be made at the office or agency of the Company maintained for
that purpose in The City of New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; PROVIDED, HOWEVER, that at the option of the Company
payment of such interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Note Register.
The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. Interest will accrue from each
prior Interest Payment Date to, but not including, the relevant payment date. In
the event that any date on which interest is payable on the Notes of this series
is not a Business Day at any Place of Payment, then payment of interest or
principal and premium, if any, need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, and, if such payment is made or
duly provided for on such Business Day, no interest shall accrue on the amount
so payable for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be, to such Business Day. A "Business
Day" means when used with respect to a Place of Payment or any other particular
location specified in the Indenture, means any day, other than a Saturday or
Sunday, which is not a day on which banking institutions or trust companies in
such Place of Payment or other location are generally authorized or required by
law, regulation or executive order to remain closed.
Reference is hereby made to the further provisions of this Note set
forth below, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to below by manual signature, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
CAROLINA POWER & LIGHT COMPANY
By: ____________________________________
[SEAL] [Name]
[Title]
Attest:
_____________________________________
[Name]
[Title]
[Form of Reverse of Senior Notes Due 2005]
11
<PAGE>
This Note is one of a duly authorized issue of securities of the
Company (herein called the "Notes"), issued and to be issued in one or more
series under an Indenture (For Senior Notes), dated as of March 1, 1999 (herein,
together with any indenture supplemental thereto, including the Second
Supplemental Indenture dated as of April 1, 2000, called the "Indenture," which
term shall have the meaning assigned to it in such instrument), between the
Company and The Bank of New York, as Trustee (herein called the "Trustee," which
term includes any successor trustee under the Indenture), and reference is
hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Notes and of the terms upon which the Notes are,
and are to be, authenticated and delivered. This Note is one of the series
designated on the face hereof.
Prior to the Release Date (as hereinafter defined), this Note will be
secured by first mortgage bonds (the "Senior Note First Mortgage Bonds")
delivered by the Company to the Trustee for the benefit of all Holders of Notes
from time to time Outstanding, issued under the Mortgage and Deed of Trust,
dated as of May 1, 1940, from the Company to Irving Trust Company (now The Bank
of New York) and Frederick G. Herbst (Douglas J. MacInnes, successor), as
trustees (the "Mortgage Trustees"), as supplemented and amended (the "First
Mortgage"). Reference is made to the First Mortgage for a description of
property mortgaged and pledged, the nature and extent of the security, the
rights of the holders of the first mortgage bonds under the First Mortgage and
of the Mortgage Trustees in respect thereof, the duties and immunities of the
Mortgage Trustees and the terms and conditions upon which the Senior Note First
Mortgage Bonds are secured and the circumstances under which additional first
mortgage bonds may be issued.
FROM AND AFTER SUCH TIME AS ALL FIRST MORTGAGE BONDS, OTHER THAN FIRST
MORTGAGE BONDS WHICH DO NOT IN AGGREGATE PRINCIPAL AMOUNT EXCEED THE GREATER OF
FIVE PERCENT (5%) OF NET TANGIBLE ASSETS OR FIVE PERCENT (5%) OF CAPITALIZATION,
HAVE BEEN RETIRED THROUGH PAYMENT, REDEMPTION OR OTHERWISE (INCLUDING THOSE
FIRST MORTGAGE BONDS THE PAYMENT FOR WHICH HAS BEEN PROVIDED FOR IN ACCORDANCE
WITH THE FIRST MORTGAGE) AT, BEFORE OR AFTER THE MATURITY THEREOF, PROVIDED THAT
NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING (THE "RELEASE
DATE"), THE SENIOR NOTE FIRST MORTGAGE BONDS SHALL CEASE TO SECURE THE NOTES IN
ANY MANNER.
The Notes of this series are subject to redemption by the Company, at
its option, in whole, at any time, or in part, from time to time, upon notice as
provided in the Indenture (not less than 30 nor more than 60 days prior to a
date fixed for redemption (the "Redemption Date")) at a redemption price equal
to the greater of (i) 100% of their principal amount or (ii) the sum of the
present values of the remaining scheduled payments of principal and interest
thereon from the Redemption Date to the maturity date, computed by discounting
such payments, in each case, to the Redemption Date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Yield plus 25 basis points (.25%), plus in each case accrued interest on the
principal amount thereof to the Redemption Date (the "Redemption Price"), such
Redemption Price to be set forth in an Officer's Certificate delivered to the
Trustee on or before the Redemption Date and upon which the Trustee may
conclusively rely.
If notice has been given as provided in the Indenture and funds for the
redemption of any Notes (or any portion thereof) called for redemption shall
have been made available on the redemption date referred to in such notice, such
Notes (or any portion thereof) will cease to bear interest on the date fixed for
such redemption specified in such notice and the only right of the Holders of
such Notes will be to receive payment of the Redemption Price.
Notice of any optional redemption of Notes of this series (or any
portion thereof) will be given to Holders at their addresses, as shown in the
Note Register for such Notes, not more than 60 nor less than 30 days prior to
the date fixed for redemption. The notice of redemption will specify, among
other items, the method of calculation of the Redemption Price and the principal
amount of the Notes held by such Holder to
12
<PAGE>
be redeemed. If less than all of the Notes are to be redeemed at the option of
the Company, the Trustee shall select, in such manner as it shall deem fair and
appropriate, the portion of such Note to be redeemed in whole or in part.
As used herein:
"Treasury Yield" means, with respect to any Redemption Date,
the rate per annum equal to the semiannual equivalent yield to maturity
of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker having a maturity
comparable to the remaining term of the Notes of this series that would
be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the Notes of this
series. "Independent Investment Banker" means Chase Securities Inc. or,
if such firm is unwilling or unable to select the Comparable Treasury
Issue, an independent investment banking institution of national
standing selected by the Company and appointed by the Trustee.
"Comparable Treasury Price" means, with respect to any
Redemption Date, (i) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) on the third Business Day preceding such
Redemption Date, as set forth in the daily statistical release (or any
successor release) published by the Federal Reserve Bank of New York
and designated "Composite 3:30 p.m. Quotations for U.S. Government
Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, the
average of the Reference Treasury Dealer Quotations for such Redemption
Date.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. on the third Business Day
preceding such Redemption Date. The Company shall furnish the Trustee a
notice in writing at least five Business Days and not more than ten
Business Days prior to such Redemption Date of (a) the name of each
Reference Treasury Dealer, (b) the Redemption Date, and (c) the third
Business Day preceding the Redemption Date.
"Reference Treasury Dealer" means each of Banc One Capital
Markets, Inc., Chase Securities Inc. and J.P. Morgan Securities Inc.,
and their respective successors; provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government Securities dealer
in New York City (a "Primary Treasury Dealer"), the Company shall
substitute therefor another Primary Treasury Dealer.
The Notes of this series will not be subject to any sinking fund.
In the event of redemption of this Note in part only, a new Note or
Notes of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Note upon compliance with certain conditions set
forth in the Indenture.
If an Event of Default with respect to Notes of this series shall occur
and be continuing, the principal of the Notes may be declared due and payable in
the manner and with the effect provided in the
13
<PAGE>
Indenture and, upon such declaration, the Trustee shall demand the acceleration
of the payment of principal of the Senior Note First Mortgage Bonds as provided
in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes to be affected under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of specified percentages of the Notes Outstanding. The Indenture also
contains provisions permitting the Holders of specified percentages in principal
amount of the Notes at the time Outstanding, on behalf of the Holders of all
Notes, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange therefor or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes of this series, the Holders of not less than a majority in aggregate
principal amount of the Notes of all series at the time Outstanding in respect
of which an Event of Default shall have occurred and be continuing shall have
made written request to the Trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee reasonable indemnity, and
the Trustee shall not have received from the Holders of a majority in principal
amount of Notes of all series at the time Outstanding in respect of which an
Event of Default shall have occurred and be continuing a direction inconsistent
with such request, and shall have failed to institute any such proceeding, for
60 days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Note for
the enforcement of any payment of principal hereof or any premium or interest
hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in any place where the principal of and any premium and interest on
this Note are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Note Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes of this series are exchangeable for a like aggregate principal amount of
Notes of this series and of like tenor of a different authorized denomination,
as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the
14
<PAGE>
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
[Form of Certificate of Authentication]
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein referred to
in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK,
as Trustee
By:______________________________________
Authorized Signatory
ARTICLE IV
ORIGINAL ISSUE OF SENIOR NOTES DUE 2005
SECTION 401. Senior Notes Due 2005 may, upon execution of this Second
Supplemental Indenture, and from time to time thereafter, be executed by the
Company by an Authorized Officer and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Senior Notes Due 2005 in accordance with and in such aggregate principal amounts
as shall be specified in a Company Order therefor without any further action by
the Company.
ARTICLE V
PAYING AGENT AND REGISTRAR
SECTION 501. The Bank of New York will be the Paying Agent and Note
Registrar for the Senior Notes Due 2005.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 601. Except as otherwise expressly provided in this Second
Supplemental Indenture or in the form of Senior Notes Due 2005 or otherwise
clearly required by the context hereof or thereof, all terms used herein or in
said form of Senior Notes Due 2005 that are defined in the Indenture shall have
the several meanings respectively assigned to them thereby.
SECTION 602. The Indenture, as heretofore supplemented and as further
supplemented by this Second Supplemental Indenture, is in all respects ratified
and confirmed, and this Second Supplemental Indenture shall be deemed part of
the Indenture in the manner and to the extent herein and therein provided.
15
<PAGE>
SECTION 603. The Trustee hereby accepts the trusts herein declared,
provided, created, supplemented, or amended and agrees to perform the same upon
the terms and conditions herein and in the Indenture set forth and upon the
following terms and conditions:
The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Second
Supplemental Indenture or for or in respect of the recitals contained
herein, all of which recitals are made by the Company solely. In
general, each and every term and condition contained in Article VIII of
the Indenture shall apply to and form part of this Second Supplemental
Indenture with the same force and effect as if the same were herein set
forth in full with such omissions, variations, and insertions, if any,
as may be appropriate to make the same conform to the provisions of
this Second Supplemental Indenture.
----------------------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
16
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
CAROLINA POWER & LIGHT COMPANY
By:_____________________________________
[SEAL] Mark F. Mulhern
Vice President and Treasurer
ATTEST:
______________________________________
Patricia Kornegay-Timmons
Assistant Secretary
(TRUSTEE'S SIGNATURE PAGE FOLLOWS)
17
<PAGE>
TRUSTEE'S SIGNATURE PAGE
SECOND SUPPLEMENTAL INDENTURE, DATED AS OF APRIL 1, 2000, TO
INDENTURE (FOR SENIOR NOTES), DATED AS OF MARCH 1, 1999
THE BANK OF NEW YORK, as Trustee
By:____________________________________
[SEAL] Michael Culhane
Vice President
ATTEST:
______________________________________
Suzanne J. MacDonald
Vice President and Assistant Secretary
18
Exhibit 4(b)
COUNTERPART ___
OF 110 COUNTERPARTS
================================================================================
CAROLINA POWER & LIGHT COMPANY
TO
THE BANK OF NEW YORK
(formerly Irving Trust Company)
AND
DOUGLAS J. MacINNES
(successor to Frederick G. Herbst, Richard H. West, J.A. Austin, E.J. McCabe,
G. White, D.W. May, J.A. Vaughan, Joseph J. Arney, Wafaa Orfy and
W.T. Cunningham)
as Trustees under Carolina Power &
Light Company's Mortgage and Deed
of Trust, dated as of May 1, 1940
----------------
Sixty-eighth Supplemental Indenture
Providing among other things for
First Mortgage Bonds, 7.50% Senior Note Series Due April 1, 2005
(Seventieth Series)
-----------------
Dated as of April 1, 2000
================================================================================
Prepared by and Return to:
Hunton & Williams (TSG)
Post Office Box 109
Raleigh, North Carolina 27602
<PAGE>
SIXTY-EIGHTH SUPPLEMENTAL INDENTURE
INDENTURE, dated as of April 1, 2000, by and between CAROLINA POWER &
LIGHT COMPANY, a corporation of the State of North Carolina, whose post office
address is 411 Fayetteville Street, Raleigh, North Carolina 27601-1768
(hereinafter sometimes called the Company), and THE BANK OF NEW YORK (formerly
Irving Trust Company), a corporation of the State of New York, whose post office
address is 101 Barclay Street, New York, New York 10286 (hereinafter sometimes
called the Corporate Trustee), and DOUGLAS J. MACINNES (successor to Frederick
G. Herbst, Richard H. West, J.A. Austin, E.J. McCabe, G. White, D.W. May, J.A.
Vaughan, Joseph J. Arney, Wafaa Orfy and W.T. Cunningham), whose post office
address is 1784 W. McGalliard Avenue, Hamilton, New Jersey 08610 (the Corporate
Trustee and the Individual Trustee being hereinafter together sometimes called
the Trustees), as Trustees under the Mortgage and Deed of Trust, dated as of May
1, 1940 (hereinafter called the Mortgage), which Mortgage was executed and
delivered by the Company to Irving Trust Company (now The Bank of New York) and
Frederick G. Herbst to secure the payment of bonds issued or to be issued under
and in accordance with the provisions of the Mortgage, reference to which
Mortgage is hereby made, this Indenture (hereinafter sometimes called the
Sixty-eighth Supplemental Indenture) being supplemental thereto:
WHEREAS, the Mortgage was recorded in various Counties in the States
of North Carolina and South Carolina; and
WHEREAS, the Mortgage was indexed and cross-indexed in the real and
chattel mortgage records in various Counties in the States of North Carolina and
South Carolina; and
WHEREAS, an instrument, dated as of June 25, 1945, was executed by the
Company appointing Richard H. West as Individual Trustee in succession to said
Frederick G. Herbst (deceased) under the Mortgage, and by Richard H. West
accepting said appointment, which instrument was recorded in various Counties in
the States of North Carolina and South Carolina; and
WHEREAS, an instrument, dated as of December 12, 1957, was executed by
the Company appointing J.A. Austin as Individual Trustee in succession to said
Richard H. West (resigned) under the Mortgage, and by J.A. Austin accepting said
appointment, which instrument was recorded in various Counties in the States of
North Carolina and South Carolina; and
WHEREAS, an instrument, dated as of April 15, 1966, was executed by the
Company appointing E.J. McCabe as Individual Trustee in succession to said J.A.
Austin (resigned) under the Mortgage, and by E.J. McCabe accepting said
appointment, which instrument was recorded in various Counties in the States of
North Carolina and South Carolina; and
WHEREAS, by the Seventeenth Supplemental Indenture mentioned below, the
Company, among other things, appointed G. White as Individual Trustee in
succession to said E.J. McCabe (resigned), and G. White accepted said
appointment; and
WHEREAS, by the Nineteenth Supplemental Indenture mentioned below, the
Company, among other things, appointed D.W. May as Individual Trustee in
succession to said G. White (resigned), and D.W. May accepted said appointment;
and
WHEREAS, by the Thirty-fifth Supplemental Indenture mentioned below,
the Company, among other things, appointed J.A. Vaughan as Individual Trustee in
succession to said D.W. May (resigned), and J.A. Vaughan accepted said
appointment; and
WHEREAS, an instrument, dated as of June 27, 1988, was executed by the
Company appointing Joseph J. Arney as Individual Trustee in succession to said
J.A. Vaughan (resigned) under the Mortgage, and by Joseph J. Arney accepting
said appointment, which instrument was recorded in various Counties in the
States of North Carolina and South Carolina; and
<PAGE>
2
WHEREAS, by the Forty-fifth Supplemental Indenture mentioned below, the
Company, among other things, appointed Wafaa Orfy as Individual Trustee in
succession to said Joseph J. Arney (resigned), and Wafaa Orfy accepted said
appointment; and
WHEREAS, by the Forty-ninth Supplemental Indenture mentioned below, the
Company, among other things, appointed W.T. Cunningham as Individual Trustee in
succession to said Wafaa Orfy (resigned), and W.T. Cunningham accepted said
appointment; and
WHEREAS, by the Sixty-sixth Supplemental Indenture mentioned below, the
Company, among other things, appointed Douglas J. MacInnes as Individual Trustee
in succession to said W.T. Cunningham (resigned), and Douglas J. MacInnes
accepted said appointment; and
WHEREAS, such instruments were indexed and cross-indexed in the real
and chattel mortgage records in various Counties in the States of North Carolina
and South Carolina; and
WHEREAS, by the Mortgage, the Company covenanted that it would execute
and deliver such supplemental indenture or indentures and such further
instruments and do such further acts as might be necessary or proper to carry
out more effectually the purposes of the Mortgage and to make subject to the
lien of the Mortgage any property thereafter acquired intended to be subject to
the lien thereof; and
WHEREAS, for said purposes, among others, the Company executed and
delivered to the Trustees the following supplemental indentures:
Designation Dated as of
----------- -----------
First Supplemental Indenture...................... January 1, 1949
Second Supplemental Indenture..................... December 1, 1949
Third Supplemental Indenture...................... February 1, 1951
Fourth Supplemental Indenture..................... October 1, 1952
Fifth Supplemental Indenture...................... March 1, 1958
Sixth Supplemental Indenture...................... April 1, 1960
Seventh Supplemental Indenture.................... November 1, 1961
Eighth Supplemental Indenture..................... July 1, 1964
Ninth Supplemental Indenture...................... April 1, 1966
Tenth Supplemental Indenture...................... October 1, 1967
Eleventh Supplemental Indenture................... October 1, 1968
Twelfth Supplemental Indenture.................... January 1, 1970
Thirteenth Supplemental Indenture................. August 1, 1970
Fourteenth Supplemental Indenture................. January 1, 1971
Fifteenth Supplemental Indenture.................. October 1, 1971
Sixteenth Supplemental Indenture.................. May 1, 1972
Seventeenth Supplemental Indenture................ May 1, 1973
Eighteenth Supplemental Indenture................. November 1, 1973
Nineteenth Supplemental Indenture................. May 1, 1974
Twentieth Supplemental Indenture.................. December 1, 1974
Twenty-first Supplemental Indenture............... April 15, 1975
Twenty-second Supplemental Indenture.............. October 1, 1977
Twenty-third Supplemental Indenture............... June 1, 1978
Twenty-fourth Supplemental Indenture.............. May 15, 1979
Twenty-fifth Supplemental Indenture............... November 1, 1979
Twenty-sixth Supplemental Indenture............... November 1, 1979
Twenty-seventh Supplemental Indenture............. April 1, 1980
Twenty-eighth Supplemental Indenture.............. October 1, 1980
Twenty-ninth Supplemental Indenture............... October 1, 1980
<PAGE>
3
Designation Dated as of
----------- -----------
Thirtieth Supplemental Indenture................. December 1, 1982
Thirty-first Supplemental Indenture.............. March 15, 1983
Thirty-second Supplemental Indenture............. March 15, 1983
Thirty-third Supplemental Indenture.............. December 1, 1983
Thirty-fourth Supplemental Indenture............. December 15, 1983
Thirty-fifth Supplemental Indenture.............. April 1, 1984
Thirty-sixth Supplemental Indenture.............. June 1, 1984
Thirty-seventh Supplemental Indenture............ June 1, 1984
Thirty-eighth Supplemental Indenture............. June 1, 1984
Thirty-ninth Supplemental Indenture.............. April 1, 1985
Fortieth Supplemental Indenture.................. October 1, 1985
Forty-first Supplemental Indenture............... March 1, 1986
Forty-second Supplemental Indenture.............. July 1, 1986
Forty-third Supplemental Indenture............... January 1, 1987
Forty-fourth Supplemental Indenture.............. December 1, 1987
Forty-fifth Supplemental Indenture............... September 1, 1988
Forty-sixth Supplemental Indenture............... April 1, 1989
Forty-seventh Supplemental Indenture............. August 1, 1989
Forty-eighth Supplemental Indenture.............. November 15, 1990
Forty-ninth Supplemental Indenture............... November 15, 1990
Fiftieth Supplemental Indenture.................. February 15, 1991
Fifty-first Supplemental Indenture............... April 1, 1991
Fifty-second Supplemental Indenture.............. September 15, 1991
Fifty-third Supplemental Indenture............... January 1, 1992
Fifty-fourth Supplemental Indenture.............. April 15, 1992
Fifty-fifth Supplemental Indenture............... July 1, 1992
Fifty-sixth Supplemental Indenture............... October 1, 1992
Fifty-seventh Supplemental Indenture............. February 1, 1993
Fifty-eighth Supplemental Indenture.............. March 1, 1993
Fifty-ninth Supplemental Indenture............... July 1, 1993
Sixtieth Supplemental Indenture.................. July 1, 1993
Sixty-first Supplemental Indenture............... August 15, 1993
Sixty-second Supplemental Indenture.............. January 15, 1994
Sixty-third Supplemental Indenture............... May 1, 1994
Sixty-fourth Supplemental Indenture.............. August 15, 1997
Sixty-fifth Supplemental Indenture............... April 1, 1998
Sixty-sixth Supplemental Indenture............... March 1, 1999
Sixty-seventh Supplemental Indenture............. March 1, 2000
which supplemental indentures (other than said Sixty-fifth Supplemental
Indenture and said Sixty-seventh Supplemental Indenture) were recorded in
various Counties in the States of North Carolina and South Carolina, and were
indexed and cross-indexed in the real and chattel mortgage or security interest
records in various Counties in the States of North Carolina and South Carolina;
and
WHEREAS, no recording or filing of said Sixty-fifth Supplemental
Indenture in any manner or place is required by law in order to fully preserve
and protect the security of the bondholders and all rights of the Trustees or is
necessary to make effective the lien intended to be created by the Mortgage or
said Sixty-fifth Supplemental Indenture; and said Sixty-seventh Supplemental
Indenture was recorded only in Rowan County, North Carolina to make subject to
the lien of the Mortgage, as supplemented, certain property of the Company
located in said County intended to be subject to the lien of the Mortgage, as
supplemented, all in accordance with Section 42 of the Mortgage; and
<PAGE>
4
WHEREAS, the Mortgage and said First through Sixty-seventh Supplemental
Indentures (other than said Sixty-fifth and said Sixty-seventh Supplemental
Indentures) were or are to be recorded in all Counties in the States of North
Carolina and South Carolina in which this Sixty-eighth Supplemental Indenture is
to be recorded; and
WHEREAS, in addition to the property described in the Mortgage, as
heretofore supplemented, the Company has acquired certain other property, rights
and interests in property; and
WHEREAS, the Company has heretofore issued, in accordance with the
provisions of the Mortgage, as supplemented, the following series of First
Mortgage Bonds:
Principal Principal
Amount Amount
Series Issued Outstanding
------ --------- -----------
3-3/4% Series due 1965..........................$ 46,000,000 None
3-1/8% Series due 1979.......................... 20,100,000 None
3-1/4% Series due 1979.......................... 43,930,000 None
2-7/8% Series due 1981.......................... 15,000,000 None
3-1/2% Series due 1982.......................... 20,000,000 None
4-1/8% Series due 1988.......................... 20,000,000 None
4-7/8% Series due 1990.......................... 25,000,000 None
4-1/2% Series due 1991.......................... 25,000,000 None
4-1/2% Series due 1994.......................... 30,000,000 None
5-1/8% Series due 1996.......................... 30,000,000 None
6-3/8% Series due 1997.......................... 40,000,000 None
6-7/8% Series due 1998.......................... 40,000,000 None
8-3/4% Series due 2000.......................... 40,000,000 None
8-3/4% Series due August 1, 2000................ 50,000,000 None
7-3/8% Series due 2001.......................... 65,000,000 None
7-3/4% Series due October 1, 2001............... 70,000,000 None
7-3/4% Series due 2002.......................... 100,000,000 None
7-3/4% Series due 2003.......................... 100,000,000 None
8-1/8% Series due November 1, 2003.............. 100,000,000 None
9-3/4% Series due 2004........................ 125,000,000 None
11-1/8% Series due 1994....................... 50,000,000 None
11% Series due April 15, 1984................. 100,000,000 None
8-1/2% Series due October 1, 2007............. 100,000,000 None
9-1/4% Series due June 1, 2008................ 100,000,000 None
10-1/2% Series due May 15, 2009............... 125,000,000 None
12-1/4% Series due November 1, 2009........... 100,000,000 None
Pollution Control Series A.................... 63,000,000 None
14-1/8% Series due April 1, 1987.............. 125,000,000 None
Pollution Control Series B.................... 50,000,000 None
Pollution Control Series C.................... 6,000,000 None
11-5/8% Series due December 1, 1992........... 100,000,000 None
Pollution Control Series D.................... 48,485,000 $ 48,485,000
Pollution Control Series E.................... 5,970,000 5,970,000
12-7/8% Series due December 1, 2013........... 100,000,000 None
Pollution Control Series F.................... 34,700,000 34,700,000
13-3/8% Series due April 1, 1994.............. 100,000,000 None
Pollution Control Series G.................... 122,615,000 None
Pollution Control Series H.................... 70,000,000 None
Pollution Control Series I.................... 70,000,000 None
<PAGE>
5
Principal Principal
Amount Amount
Series Issued Outstanding
------ --------- -----------
Pollution Control Series J.................... 6,385,000 1,795,000
Pollution Control Series K.................... 2,580,000 2,580,000
Extendible Series due April 1, 1995........... 125,000,000 None
11-3/4% Series due October 1, 2015............ 100,000,000 None
8-7/8% Series due March 1, 2016............... 100,000,000 None
8-1/8% Series due July 1, 1996................ 125,000,000 None
8-1/2% Series due January 1, 2017............. 100,000,000 None
9.174% Series due December 1, 1992............ 100,000,000 None
9% Series due September 1, 1993............... 100,000,000 None
9.60% Series due April 1, 1991................ 100,000,000 None
Secured Medium-Term Notes, Series A........... 200,000,000 None
8-1/8% Series due November 15, 1993........... 100,000,000 None
Secured Medium-Term Notes, Series B........... 100,000,000 None
8-7/8% Series due February 15, 2021........... 125,000,000 None
9% Series due April 1, 2022................... 100,000,000 None
8-5/8% Series due September 15, 2021.......... 100,000,000 100,000,000
5.20% Series due January 1, 1995.............. 125,000,000 None
7-7/8% Series due April 15, 2004.............. 150,000,000 150,000,000
8.20% Series due July 1, 2022................. 150,000,000 150,000,000
6-3/4% Series due October 1, 2002............. 100,000,000 100,000,000
6-1/8% Series due February 1, 2000............ 150,000,000 None
7-1/2% Series due March 1, 2023............... 150,000,000 150,000,000
5-3/8% Series due July 1, 1998................ 100,000,000 None
Secured Medium-Term Notes, Series C........... 200,000,000 None
6-7/8% Series due August 15, 2023............. 100,000,000 100,000,000
5-7/8% Series due January 15, 2004............ 150,000,000 150,000,000
Pollution Control Series L.................... 72,600,000 72,600,000
Pollution Control Series M.................... 50,000,000 50,000,000
6.80% Series due August 15, 2007.............. 200,000,000 200,000,000
5.95% Senior Note Series due March 1, 2009.... 400,000,000 400,000,000
which bonds are sometimes called bonds of the First through Sixty-ninth Series,
respectively; and
WHEREAS, Section 8 of the Mortgage provides that the form of each
series of bonds (other than the First Series) issued thereunder and of the
coupons to be attached to coupon bonds of such series shall be established by
Resolution of the Board of Directors of the Company and that the form of such
series, as established by said Board of Directors, shall specify the descriptive
title of the bonds and various other terms thereof, and may also contain such
provisions not inconsistent with the provisions of the Mortgage as said Board of
Directors may, in its discretion, cause to be inserted therein expressing or
referring to the terms and conditions upon which such bonds are to be issued
and/or secured under the Mortgage; and
WHEREAS, Section 120 of the Mortgage provides, among other things, that
any power, privilege or right expressly or impliedly reserved to or in any way
conferred upon the Company by any provision of the Mortgage, whether such power,
privilege or right is in any way restricted or is unrestricted, may be in whole
or in part waived or surrendered or subjected to any restriction if at the time
unrestricted or to additional restriction if already restricted, and the Company
may enter into any further covenants, limitations or restrictions for the
benefit of any one or more series of bonds issued thereunder, or the Company may
cure any ambiguity contained therein, or in any supplemental indenture, or may
establish the terms and provisions of any series of bonds other than said First
Series, by an instrument in writing executed and acknowledged by the Company in
such manner as would be necessary to entitle a conveyance of real estate to
record in all of the states in which any property at the time subject to the
lien of the Mortgage shall be situated; and
<PAGE>
6
WHEREAS, the Company now desires to create a new series of bonds and to
add to its covenants and agreements contained in the Mortgage, as heretofore
supplemented, certain other covenants and agreements to be observed by it and to
alter and amend in certain respects the covenants and provisions contained in
the Mortgage, as heretofore supplemented; and
WHEREAS, the execution and delivery by the Company of this
Sixty-eighth Supplemental Indenture, and the terms of the bonds of the
Seventieth Series, hereinafter referred to, have been duly authorized by the
Board of Directors of the Company by appropriate resolutions of said Board of
Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the Company, in consideration of the premises and of One Dollar to
it duly paid by the Trustees at or before the ensealing and delivery of these
presents, the receipt whereof is hereby acknowledged, and in further evidence of
assurance of the estate, title and rights of the Trustees and in order further
to secure the payment of both the principal of and interest and premium, if any,
on the bonds from time to time issued under the Mortgage, according to their
tenor and effect and the performance of all the provisions of the Mortgage
(including any instruments supplemental thereto and any modification made as in
the Mortgage provided) and of said bonds, hereby grants, bargains, sells,
releases, conveys, assigns, transfers, mortgages, pledges, sets over and
confirms (subject, however, to Excepted Encumbrances as defined in Section 6 of
the Mortgage) unto The Bank of New York and Douglas J. MacInnes, as Trustees
under the Mortgage, and to their successor or successors in said trust, and to
said Trustees and their successors and assigns forever, all the following
described properties of the Company:
All electric generating plants, stations, transmission lines,
and electric distribution systems, including permanent improvements,
extensions or additions to or about such electrical plants, stations,
transmission lines and distribution systems of the Company; all dams,
power houses, power sites, buildings, generators, reservoirs, pipe
lines, flumes, structures and works; all substations, transformers,
switchboards, towers, poles, wires, insulators, and other appliances
and equipment, and the Company's rights or interests in the land upon
which the same are situated, and all other property, real or personal,
forming a part of or appertaining to, or used, occupied or enjoyed in
connection with said generating plants, stations, transmission lines,
and distribution systems; together with all rights of way, easements,
permits, privileges, franchises and rights for or related to the
construction, maintenance, or operation thereof, through, over, under
or upon any public streets or highways, or the public lands of the
United States, or of any State or other lands; and all water
appropriations and water rights, permits and privileges; including all
property, real, personal, and mixed, acquired by the Company after the
date of the execution and delivery of the Mortgage, in addition to
property covered by the above-mentioned supplemental indentures (except
any herein or in the Mortgage, as heretofore supplemented, expressly
excepted), now owned or, subject to the provisions of Section 87 of the
Mortgage, hereafter acquired by the Company and wheresoever situated,
including (without in anywise limiting or impairing by the enumeration
of the same the scope and intent of the foregoing or of any general
description contained in this Sixty-eighth Supplemental Indenture) all
lands, power sites, flowage rights, water rights, flumes, raceways,
dams, rights of way and roads; all steam and power houses, gas plants,
street lighting systems, standards and other equipment incidental
thereto, telephone, radio and television systems, air-conditioning
systems and equipment incidental thereto, water works, steam heat and
hot water plants, lines, service and supply systems, bridges, culverts,
tracts, ice or refrigeration plants and equipment, street and
interurban railway systems, offices, buildings and other structures and
the equipment thereof; all machinery, engines, boilers, dynamos,
electric and gas machines, regulators, meters, transformers,
generators, motors, electrical, gas and mechanical appliances,
conduits, cables, water, steam heat, gas or other pipes, gas mains and
pipes, service pipes, fittings, valves and connections, pole and
transmission lines, wires, cables, tools, implements, apparatus,
furniture, chattels and choses in action; all municipal and other
franchises, consents or permits; all lines for the transmission and
distribution of electric current, gas, steam heat or water for any
purpose including poles, wires, cables, pipes, conduits, ducts and all
apparatus for use in connection therewith; all real estate, lands,
easements, servitudes, licenses, permits, franchises, privileges,
rights of way and other rights in or relating to real estate or the
occupancy of the same and (except as herein or in the Mortgage, as
heretofore supplemented, expressly excepted) all the right, title and
interest of the Company in and to all other property of any kind or
nature appertaining to and/or used and/or occupied and/or enjoyed in
connection with any property hereinbefore or in the Mortgage, as
heretofore supplemented, described.
<PAGE>
TOGETHER WITH all and singular the tenements, hereditaments and
appurtenances belonging or in anywise appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder and remainders
and (subject to the provisions of Section 57 of the Mortgage) the tolls, rents,
revenues, issues, earnings, income, product and profits thereof, and all the
estate, right, title and interest and claim whatsoever, at law as well as in
equity, which the Company now has or may hereafter acquire in and to the
aforesaid property and franchises and every part and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the provisions of
Section 87 of the Mortgage, all the property, rights and franchises acquired by
the Company after the date hereof (except any herein or in the Mortgage, as
heretofore supplemented, expressly excepted) shall be and are as fully granted
and conveyed hereby and as fully embraced within the lien hereof and the lien of
the Mortgage as if such property, rights and franchises were now owned by the
Company and were specifically described herein and conveyed hereby.
PROVIDED THAT the following are not and are not intended to be now or
hereafter granted, bargained, sold, released, conveyed, assigned, transferred,
mortgaged, pledged, set over or confirmed hereunder and are hereby expressly
excepted from the lien and operation of this Sixty-eighth Supplemental Indenture
and from the lien and operation of the Mortgage, namely: (1) cash, shares of
stock and obligations (including bonds, notes and other securities) not
hereafter specifically pledged, paid, deposited or delivered under the Mortgage
or covenanted so to be; (2) merchandise, equipment, materials or supplies held
for the purpose of sale in the usual course of business and fuel, oil and
similar materials and supplies consumable in the operation of any properties of
the Company; rolling stock, buses, motor coaches, vehicles and automobiles; (3)
bills, notes and accounts receivable, and all contracts, leases and operating
agreements not specifically pledged under the Mortgage, as heretofore
supplemented, or this Sixty-eighth Supplemental Indenture or covenanted so to
be; (4) electric energy and other materials or products generated, manufactured,
produced or purchased by the Company for sale, distribution or use in the
ordinary course of its business; and (5) any property and rights heretofore
released from the lien of the Mortgage; provided, however, that the property and
rights expressly excepted from the lien and operation of the Mortgage and this
Sixty-eighth Supplemental Indenture in the above subdivisions (2) and (3) shall
(to the extent permitted by law) cease to be so excepted in the event and as of
the date that either or both of the Trustees or a receiver or trustee shall
enter upon and take possession of the Mortgaged and Pledged Property in the
manner provided in Article XII of the Mortgage by reason of the occurrence of a
Default as defined in said Article XII.
TO HAVE AND TO HOLD all such properties, real, personal and mixed,
granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged,
pledged, set over or confirmed by the Company as aforesaid, or intended so to
be, unto the Trustees, their successors and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the same terms,
trusts and conditions and subject to and with the same provisos and covenants as
are set forth in the Mortgage, as heretofore supplemented, this Sixty-eighth
Supplemental Indenture being supplemental to the Mortgage.
AND IT IS HEREBY COVENANTED by the Company that all the terms,
conditions, provisos, covenants and provisions contained in the Mortgage, as
heretofore supplemented, shall affect and apply to the property hereinbefore
described and conveyed and to the estate, rights, obligations and duties of the
Company and the Trustees and the beneficiaries of the trust with respect to said
property, and to the Trustees and their successors as Trustees of said property
in the same manner and with the same effect as if the said property had been
owned by the Company at the time of the execution of the Mortgage and had been
specifically and at length described in and conveyed to the Trustees by the
Mortgage as a part of the property therein stated to be conveyed.
The Company further covenants and agrees to and with the Trustees and
their successor or successors in such trust under the Mortgage as follows:
ARTICLE I
SEVENTIETH SERIES OF BONDS
SECTION 1. There shall be a series of bonds designated "7.50% Senior
Note Series Due April 1, 2005" (herein sometimes referred to as the "Seventieth
Series"), each of which shall also bear the descriptive title "First
<PAGE>
8
Mortgage Bond", and the form thereof, which shall be established by Resolution
of the Board of Directors of the Company, shall contain suitable provisions with
respect to the matters hereinafter in this Section specified. Bonds of the
Seventieth Series shall be initially issued in the aggregate principal amount of
$300,000,000, mature on April 1, 2005, bear interest at the rate of 7.50% per
annum, payable from April 11, 2000, if the date of said bonds is prior to
October 1, 2000, or, if the date of said bonds is after October 1, 2000, from
the April or October next preceding the date of said bonds, and thereafter
semi-annually on April 1 and October 1 of each year, be issued as fully
registered bonds in the denominations of One Thousand Dollars and, at the option
of the Company, in any multiple or multiples of One Thousand Dollars (the
exercise of such option to be evidenced by the execution and delivery thereof)
and be dated as in Section 10 of the Mortgage provided, the principal of and
interest on each said bond to be payable at the office or agency of the Company
in the Borough of Manhattan, The City of New York, in such coin or currency of
the United States of America as at the time of payment is legal tender for
public and private debts.
At the option of the registered owner, any bonds of the Seventieth
Series, upon surrender thereof for cancellation at the office or agency of the
Company in the Borough of Manhattan, The City of New York, shall be exchangeable
for a like aggregate principal amount of bonds of the same series of other
authorized denominations. The bonds of the Seventieth Series may bear such
legends as may be necessary to comply with any law or with any rules or
regulations made pursuant thereto or with the rules or regulations of any stock
exchange or to conform to usage or agreement with respect thereto.
Bonds of the Seventieth Series will not be transferable except (i) as
required to effect an assignment to a successor trustee under the Indenture (For
Senior Notes) dated as of March 1, 1999, between the Company and The Bank of New
York, as trustee (said trustee or any successor trustee under said Senior Note
Indenture being hereinafter referred to as the "Senior Note Trustee"), as the
same may be supplemented from time to time (the "Senior Note Indenture") or as
otherwise provided in Sections 407 and 409 of the Senior Note Indenture, or (ii)
in compliance with a final order of a court of competent jurisdiction in
connection with any bankruptcy or reorganization proceeding of the Company.
Upon any exchange or transfer of bonds of the Seventieth Series, the
Company may make a charge therefor sufficient to reimburse it for any tax or
taxes or other governmental charge required to be paid by the Company, as
provided in Section 12 of the Mortgage, but the Company hereby waives any right
to make a charge in addition thereto for any exchange or transfer of bonds of
said Series.
The Company's obligation to make payments with respect to the principal
of, premium, if any, and or interest on, the bonds of the Seventieth Series
shall be fully or partially satisfied and discharged to the extent that, at the
time any such payment shall be due, the corresponding amount then due of
principal of, and/or premium, if any, and/or interest then due on, the Company's
Senior Notes, 7.50% Series Due April 1, 2005 (hereinafter called the "Senior
Notes"), issued contemporaneously with the bonds of the Seventieth Series, shall
have been fully or partially paid (other than by the application of the proceeds
of a payment in respect of the bonds of the Seventieth Series), as the case may
be, or there shall have been deposited with the Senior Note Trustee pursuant to
the Senior Note Indenture trust funds sufficient under such indenture to fully
or partially pay, as the case may be, the corresponding amount then due of
principal of, and/or premium, if any and/or interest on, the Senior Notes (other
than by the application of the proceeds of a payment in respect of the bonds of
the Seventieth Series).
SECTION 2. Except as otherwise provided in Section 406 of the Senior
Note Indenture, the registered owner of all bonds of the Seventieth Series shall
be the Senior Note Trustee.
SECTION 3. Upon payment of the principal of, and premium if any, and
interest due on the Senior Notes, whether at maturity or prior to maturity by
acceleration, redemption or otherwise, or upon provision for the payment thereof
having been made in accordance with the Senior Note Indenture (other than by the
application of the proceeds of a payment in respect of the bonds of the
Seventieth Series), bonds of the Seventieth Series in a principal amount equal
to the principal amount of Senior Notes so paid or for which such provision for
payment has been made shall be deemed fully paid, satisfied and discharged and
the obligations of the Company thereunder shall be terminated and the bonds of
the Seventieth Series shall be canceled by the Corporate Trustee in accordance
with Section 56 of the Mortgage, except as otherwise provided in the Senior Note
Indenture. From and after the Release Date (as defined in the Senior Note
Indenture, the "Release Date"), the bonds of the Seventieth Series shall be
deemed fully paid, satisfied
<PAGE>
9
and discharged and the obligation of the Company thereunder shall be terminated.
On the Release Date, the bonds of the Seventieth Series shall be canceled by
the Corporate Trustee in accordance with Section 56 of the Mortgage.
The bonds of the Seventieth Series are subject to redemption by the
Company, at its option, in whole, at any time, or in part, from time to time,
upon notice as provided in the Mortgage (not less than 30 nor more than 60 days
prior to a date fixed for redemption (the "Redemption Date")) at a redemption
price equal to the greater of (i) 100% of their principal amount or (ii) the sum
of the present values of the remaining scheduled payments of principal and
interest thereon from the Redemption Date to the maturity date, computed by
discounting such payments, in each case, to the Redemption Date on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Yield (as defined in the Second Supplemental Indenture, dated as of
April 1, 2000, supplemental to the Senior Note Indenture) plus 25 basis points
(.25%), plus in each case accrued interest on the principal amount thereof to
the Redemption Date (the "Redemption Price"), such Redemption Price to be set
forth in a Treasurer's Certificate delivered to the Corporate Trustee on or
before the Redemption Date and upon which the Trustees may conclusively rely.
At any time the Senior Notes or any portion thereof have become due and
payable in accordance with Section 505 of the Senior Note Indenture, the bonds
of the Seventieth Series will thereupon automatically become due and payable
pursuant to the redemption provisions of the preceding paragraph.
The Company covenants and agrees that, prior to the Release Date, it
will not take any action that would cause the outstanding principal amount of
the bonds of the Seventieth Series to be less than the then outstanding
principal amount of the Senior Notes.
The Corporate Trustee may conclusively presume that the obligation of
the Company to pay the principal of, and premium, if any, and interest on the
bonds of the Seventieth Series as the same shall become due and payable shall
have been fully satisfied and discharged unless and until it shall received a
written notice from the Senior Note Trustee, signed by its President, a Vice
President or a Trust Officer, stating that the corresponding payment of
principal of or interest on the Senior Notes has become due and payable and has
not been fully paid and, with respect to principal and premium, if any, of the
Senior Notes, specifying the principal of, and premium, if any, on the Senior
Notes then due and payable and the amount of funds required to make such
payment, and, with respect to interest on the Senior Note, specifying the last
date to which interest has been paid and the amount of funds required to make
such payment.
ARTICLE II
DIVIDEND COVENANT
SECTION 4. The Company covenants and agrees that, so long as any of the
bonds of the Seventieth Series remain Outstanding, the Company will not declare
or pay any dividends upon its common stock (other than dividends in common
stock) or make any other distributions on its common stock or purchase or
otherwise retire any shares of its common stock, unless immediately after such
declaration, payment, purchase, retirement or distribution (hereinafter in this
Section referred to as "Restricted Payments"), and giving effect thereto, the
amount arrived at by adding
(a) the aggregate amount of all such Restricted Payments
(other than the dividend of fifty cents ($.50) per share declared on
December 8, 1948 and paid on February 1, 1949 to holders of Common
Stock) made by the Company during the period from December 31, 1948, to
and including the effective date of the Restricted Payment in respect
of which the determination is being made, plus
(b) an amount equal to the aggregate amount of cumulative
dividends for such period (whether or not paid) on all preferred stock
of the Company from time to time outstanding during such period, at the
rate or rates borne by such preferred stock, plus
(c) an amount equal to the amount, if any, by which fifteen
per centum (15%) of the Gross Operating Revenues of the Company for
such period shall exceed the aggregate amount during such period
expended and/or accrued on its books for maintenance and/or
appropriated on its books out of income for property retirement, in
each case in respect of the Mortgaged and Pledged Property and/or
automotive equipment used primarily in the electric utility business of
the Company (but excluding any provisions for
<PAGE>
10
amortization of any amounts included in utility plant acquisition
adjustment accounts or utility plant adjustment accounts),
will not exceed the amount of the aggregate net income of the Company for said
period available for dividends (computed and ascertained in accordance with
sound accounting practice, on a cumulative basis, including the making of proper
deductions for any deficits occurring during any part of such period), plus
$3,000,000.
The Company further covenants and agrees that not later than May 1 of
each year beginning with the year 2000 it will furnish to the Corporate Trustee
a Treasurer's Certificate stating whether or not the Company has fully observed
the restrictions imposed upon it by the covenant contained in this Section 4.
ARTICLE III
CERTAIN PROVISIONS WITH RESPECT TO FUTURE ADVANCES
SECTION 5. Upon the filing of this Sixty-eighth Supplemental Indenture
for record in all counties in which the Mortgaged and Pledged Property is
located, and until a further indenture or indentures supplemental to the
Mortgage shall be executed and delivered by the Company to the Trustees pursuant
to authorization by the Board of Directors of the Company and filed for record
in all counties in which the Mortgaged and Pledged Property is located further
increasing or decreasing the amount of future advances which may be secured by
the Mortgage, as supplemented, the Mortgage, as supplemented, may secure future
advances and other indebtedness and sums not to exceed in the aggregate
$750,000,000, in addition to $2,016,130,000 in aggregate principal amount of
bonds to be Outstanding at the time of such filing, and all such advances and
other indebtedness and sums shall be secured by the Mortgage, as supplemented,
equally, to the same extent and with the same priority, as the amount originally
advanced on the security of the Mortgage, namely, $46,000,000, and such advances
and other indebtedness and sums may be made or become owing and may be repaid
and again made or become owing and the amount so stated shall be considered only
as the total amount of such advances and other indebtedness and sums as may be
outstanding at one time.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 6. Subject to any amendments provided for in this Sixty-eighth
Supplemental Indenture, the terms defined in the Mortgage, as heretofore
supplemented, shall, for all purposes of this Sixty-eighth Supplemental
Indenture, have the meanings specified in the Mortgage, as heretofore
supplemented.
SECTION 7. The Trustees hereby accept the trusts herein declared,
provided, created or supplemented and agree to perform the same upon the terms
and conditions herein and in the Mortgage, as heretofore supplemented, set forth
and upon the following terms and conditions:
The Trustees shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Sixty-eighth
Supplemental Indenture or for or in respect of the recitals contained
herein, all of which recitals are made by the Company solely. In
general each and every term and condition contained in Article XVI of
the Mortgage shall apply to and form part of this Sixty-eighth
Supplemental Indenture with the same force and effect as if the same
were herein set forth in full with such omissions, variations and
insertions, if any, as may be appropriate to make the same conform to
the provisions of this Sixty-eighth Supplemental Indenture.
SECTION 8. Subject to the provisions of Article XV and Article XVI of
the Mortgage, whenever in this Sixty-eighth Supplemental Indenture either of the
parties hereto is named or referred to, this shall be deemed to include the
successors or assigns of such party, and all the covenants and agreements in
this Sixty-eighth Supplemental Indenture contained by or on behalf of the
Company or by or on behalf of the Trustees shall bind and inure to the benefit
of the respective successors and assigns of such parties whether so expressed or
not.
<PAGE>
11
SECTION 9. Nothing in this Sixty-eighth Supplemental Indenture,
expressed or implied, is intended, or shall be construed, to confer upon, or to
give to, any person, firm or corporation, other than the parties hereto and the
holders of the Outstanding bonds and coupons, any right, remedy or claim under
or by reason of this Sixty-eighth Supplemental Indenture or any covenant,
condition, stipulation, promise or agreement hereof, and all the covenants,
conditions, stipulations, promises and agreements in this Sixty-eighth
Supplemental Indenture contained by or on behalf of the Company shall be for the
sole and exclusive benefit of the parties hereto, and of the holders of the
Outstanding bonds and coupons.
SECTION 10. This Sixty-eighth Supplemental Indenture shall be executed
in several counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
<PAGE>
12
IN WITNESS WHEREOF, Carolina Power & Light Company has caused its
corporate name to be hereunto affixed, and this instrument to be signed and
sealed by its President or one of its Vice Presidents or its Treasurer and its
corporate seal to be attested by its Secretary or one of its Assistant
Secretaries, and The Bank of New York has caused its corporate name to be
hereunto affixed, and this instrument to be signed and sealed by one of its Vice
Presidents or Assistant Vice Presidents, and its corporate seal to be attested
by one of its Assistant Vice Presidents or Assistant Secretaries and Douglas J.
MacInnes has hereunto set his hand and affixed his seal, all as of the day and
year first above written.
CAROLINA POWER & LIGHT COMPANY
By /s/ Mark F. Mulhhern
-----------------------------------------
Mark F. Mulhhern, President and Treasurer
ATTEST:
/s/ Patricia Kornegay-Timmons
- ----------------------------------------------
Patricia Kornegay-Timmons, Assistant Secretary
Executed, sealed and delivered by
CAROLINA POWER & LIGHT COMPANY
in the presence of:
/s/ Sarah C. Nelson
- ----------------------------------------------
Sarah C. Nelson
/s/ Kimberley C. Cross
- ----------------------------------------------
Kimberley C. Cross
(Trustees' Signature Page Follows)
<PAGE>
13
Trustees' Signature Page
Sixty-eighth Supplemental Indenture, dated as of April 1, 2000,
to Mortgage and Deed of Trust, dated as of May 1, 1940
THE BANK OF NEW YORK, as Trustee
By:/s/ Michael Culhane
-----------------------------------
Michael Culhane, Vice President
ATTEST:
/s/ Suzanne J. MacDonald
- --------------------------------------
Suzanne J. MacDonald,
Vice President and Assistant Secretary
/s/ Douglas J. MacInnes(L.S.)
-------------------------------
Douglas J. MacInnes
Executed, sealed and delivered
by THE BANK OF NEW YORK,and
DOUGLAS J. MACINNES
in the presence of:
/s/ Sherma Thomas
- ---------------------------------------
Sherma Thomas
/s/ Patrick J. O'Leary
- ---------------------------------------
Patrick J. O'Leary
<PAGE>
STATE OF NORTH CAROLINA )
) SS.:
COUNTY OF WAKE )
This 1st day of April, A.D. 2000, personally came before me, DIANE T.
PARRISH, a Notary Public for Wake County, MARK F. MULHERN, who, being by me duly
sworn, says that he is the Vice President and Treasurer of CAROLINA POWER &
LIGHT COMPANY, and that the seal affixed to the foregoing instrument in writing
is the corporate seal of said company, and that said writing was signed and
sealed by him in behalf of said corporation by its authority duly given. And the
said MARK F. MULHERN acknowledged the said writing to be the act and deed of
said corporation.
On the 1st day of April, in the year of 2000, before me personally came
MARK F. MULHERN, to me known, who, being by me duly sworn, did depose and say
that he resides at 109 Deer Valley Drive, Apex, North Carolina 27502, State of
North Carolina; that he is the Vice President and Treasurer of CAROLINA POWER &
LIGHT COMPANY, one of the corporations described in and which executed the above
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation, and that he signed his name thereto by
like order.
/s/ Diane T. Parrish
-------------------------------------------
DIANE T. PARRISH
Notary Public, State of North Carolina
Wake County
My Commission Expires: July 7, 2003
STATE OF NORTH CAROLINA )
) SS.:
COUNTY OF WAKE )
Personally appeared before me SARAH C. NELSON, who being duly sworn,
says that she saw the corporate seal of CAROLINA POWER & LIGHT COMPANY affixed
to the above written instrument, and that she also saw MARK F. MULHERN, the Vice
President and Treasurer, with PATRICIA KORNEGAY-TIMMONS, an Assistant Secretary,
of said CAROLINA POWER & LIGHT COMPANY, sign and attest the same, and that she,
deponent, with KIMBERLEY C. CROSS, witnessed the execution and delivery thereof
as the act and deed of said CAROLINA POWER & LIGHT COMPANY.
/s/ Sarah C. Nelson
-------------------------------------
Sarah C. Nelson
Sworn to before me this
1st day of April, 2000
/s/ Diane T. Parrish
- ----------------------------------------
DIANE T. PARRISH
Notary Public, State of North Carolina
Wake County
My Commission Expires: July 7, 2003
<PAGE>
15
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
This 4th day of April, A.D. 2000, personally came before me, WILLIAM J.
CASSELS, a Notary Public in and for the County aforesaid, MICHAEL CULHANE, who,
being by me duly sworn, says that he is a Vice President of THE BANK OF NEW
YORK, and that the seal affixed to the foregoing instrument in writing is the
corporate seal of said company, and that said writing was signed and sealed by
him in behalf of said corporation by its authority duly given. And the said
MICHAEL CULHANE acknowledged the said writing to be the act and deed of said
corporation.
On the 4th day of April, in the year 2000, before me personally came
MICHAEL CULHANE, to me known, who, being by me duly sworn, did depose and say
that he resides in Bay Ridge, New York; that he is a Vice President of THE BANK
OF NEW YORK, one of the corporations described in and which executed the above
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation, and that he signed his name thereto by
like order.
I, WILLIAM J. CASSELS, a Notary Public in and for the County aforesaid,
do hereby certify that DOUGLAS J. MACINNES personally appeared before me this
day and acknowledged the due execution by him as successor Individual Trustee of
the foregoing instrument.
On the 4th day of April, 2000, before me personally came DOUGLAS J.
MACINNES , to me known to be the person described in and who executed the
foregoing instrument and acknowledged that he, as successor Individual Trustee,
executed the same.
WITNESS my hand and official seal this 4th day of April, 2000.
/s/ William J. Cassels
------------------------------------
WILLIAM J. CASSELS
Notary Pubic, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate filed in New York County
Commission Expires May 16, 2000
<PAGE>
16
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
Personally appeared before me SHERMA THOMAS, who, being duly sworn,
says that she saw the corporate seal of THE BANK OF NEW YORK affixed to the
above written instrument and that she also saw MICHAEL CULHANE, a Vice
President, with SUZANNE J. MACDONALD, a Vice President and Assistant Secretary,
of said THE BANK OF NEW YORK, sign and attest the same, and that she, deponent,
with PATRICK J. O'LEARY, witnessed the execution and delivery thereof as the act
and deed of said THE BANK OF NEW YORK.
Personally appeared before me SHERMA THOMAS, who, being duly sworn,
says that she saw the within named DOUGLAS J. MACINNES, as successor Individual
Trustee, sign, seal and as his act and deed deliver the foregoing instrument for
the purposes therein mentioned, and that she, deponent, with PATRICK J. O'LEARY,
witnessed the execution thereof.
/s/ Sherma Thomas
-----------------------------------
SHERMA THOMAS
Sworn to before me this
4th day of April, 2000
/s/ William J. Cassels
- ----------------------------------------------
WILLIAM J. CASSELS
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate filed in New York County
Commission Expires May 16, 2000
17
