EXHIBIT 4(C)
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CAROLINA POWER & LIGHT COMPANY
TO
THE BANK OF NEW YORK
(FORMERLY IRVING TRUST COMPANY)
AND
X.X. XXXXXXXXXX
(SUCCESSOR TO XXXXXXXXX X. XXXXXX, XXXXXXX X. XXXX, X.X. XXXXXX, X.X. XXXXXX,
G. XXXXX, X.X. MAY, X.X. XXXXXXX, XXXXXX X. XXXXX AND XXXXX XXXX)
AS TRUSTEES UNDER CAROLINA POWER & LIGHT
COMPANY'S MORTGAGE AND DEED OF TRUST, DATED
AS OF MAY 1, 1940
----------------
____________ SUPPLEMENTAL INDENTURE
PROVIDING AMONG OTHER THINGS FOR
[FIRST MORTGAGE BONDS, _% SERIES DUE _____________]
[FIRST MORTGAGE BONDS, DESIGNATED SECURED MEDIUM-TERM NOTES, SERIES ___]
(___________ SERIES)
-----------------
DATED AS OF _____________
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____________ SUPPLEMENTAL INDENTURE
INDENTURE, dated as of _____________, by and between CAROLINA POWER &
LIGHT COMPANY, a corporation of the State of North Carolina, whose post office
address is 000 Xxxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000-0000
(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 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter sometimes
called the Corporate Trustee), and X.X. XXXXXXXXXX (successor to Xxxxxxxxx X.
Xxxxxx, Xxxxxxx X. Xxxx, X.X. Xxxxxx, X.X. XxXxxx, G. Xxxxx, X.X. May, X.X.
Xxxxxxx, Xxxxxx X. Xxxxx and Xxxxx Xxxx), whose post office address is 0
Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (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 Xxxxxxxxx X.
Xxxxxx to secure the payment of bonds issued or to be issued under and in
accordance with the provisions of the Mortgage, reference to which Mortgage is
hereby made, this Indenture (hereinafter sometimes called the ____________
Supplemental Indenture) being supplemental thereto:
WHEREAS, the Mortgage was recorded in various Counties in the States of
North Carolina and South Carolina; and
WHEREAS, the Mortgage was indexed and cross-indexed in the real and
chattel mortgage records in various Counties in the States of North Carolina and
South Carolina; and
WHEREAS, an instrument, dated as of June 25, 1945, was executed by the
Company appointing Xxxxxxx X. Xxxx as Individual Trustee in succession to said
Xxxxxxxxx X. Xxxxxx (deceased) under the Mortgage, and by Xxxxxxx X. Xxxx
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 X.X. Xxxxxx as Individual Trustee in succession to said
Xxxxxxx X. Xxxx (resigned) under the Mortgage, and by X.X. Xxxxxx 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 X.X. XxXxxx as Individual Trustee in succession to said X.X.
Xxxxxx (resigned) under the Mortgage, and by X.X. XxXxxx 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 X. Xxxxx as Individual Trustee in
succession to said X.X. XxXxxx (resigned), and X. Xxxxx 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 X. Xxxxx (resigned), and D.W. May accepted said appointment;
and
WHEREAS, by the Thirty-fifth Supplemental Indenture mentioned below, the
Company, among other things, appointed X.X. Xxxxxxx as Individual Trustee in
succession to said D.W. May (resigned), and X.X. Xxxxxxx accepted said
appointment; and
WHEREAS, an instrument, dated as of June 27, 1988, was executed by the
Company appointing Xxxxxx X. Xxxxx as Individual Trustee in succession to said
X.X. Xxxxxxx (resigned) under the Mortgage, and by Xxxxxx X. Xxxxx
2
accepting said appointment, which instrument was recorded in various Counties in
the States of North Carolina and South Carolina; and
WHEREAS, by the Forty-fifth Supplemental Indenture mentioned below, the
Company, among other things, appointed Xxxxx Xxxx as Individual Trustee in
succession to said Xxxxxx X. Xxxxx (resigned), and Xxxxx Xxxx accepted said
appointment; and
WHEREAS, by the Forty-ninth Supplemental Indenture mentioned below, the
Company, among other things, appointed X.X. Xxxxxxxxxx as Individual Trustee in
succession to said Xxxxx Xxxx (resigned), and X.X. Xxxxxxxxxx accepted said
appointment; and
WHEREAS, such instruments were indexed and cross-indexed in the real and
chattel mortgage records in various Counties in the States of North Carolina and
South Carolina; and
WHEREAS, by the Mortgage, the Company covenanted that it would execute and
deliver such supplemental indenture or indentures and such further instruments
and do such further acts as might be necessary or proper to carry out more
effectually the purposes of the Mortgage and to make subject to the lien of the
Mortgage any property thereafter acquired intended to be subject to the lien
thereof; and
WHEREAS, for said purposes, among others, the Company executed and
delivered to the Trustees the following supplemental indentures:
DESIGNATION DATED AS OF
----------- -----------
First Supplemental Indenture.................... January 1, 1949
Second Supplemental Indenture................... December 1, 1949
Third Supplemental Indenture.................... February 1, 1951
Fourth Supplemental Indenture................... October 1, 1952
Fifth Supplemental Indenture.................... March 1, 1958
Sixth Supplemental Indenture.................... April 1, 1960
Seventh Supplemental Indenture.................. November 1, 1961
Eighth Supplemental Indenture................... July 1, 1964
Ninth Supplemental Indenture.................... April 1, 1966
Tenth Supplemental Indenture.................... October 1, 1967
Eleventh Supplemental Indenture................. October 1, 1968
Twelfth Supplemental Indenture.................. January 1, 1970
Thirteenth Supplemental Indenture............... August 1, 1970
Fourteenth Supplemental Indenture............... January 1, 1971
Fifteenth Supplemental Indenture................ October 1, 1971
Sixteenth Supplemental Indenture................ May 1, 1972
Seventeenth Supplemental Indenture.............. May 1, 1973
Eighteenth Supplemental Indenture............... November 1, 1973
Nineteenth Supplemental Indenture............... May 1, 1974
Twentieth Supplemental Indenture................ December 1, 1974
Twenty-first Supplemental Indenture............. April 15, 1975
Twenty-second Supplemental Indenture............ October 1, 1977
Twenty-third Supplemental Indenture............. June 1, 1978
Twenty-fourth Supplemental Indenture............ May 15, 1979
Twenty-fifth Supplemental Indenture............. November 1, 1979
Twenty-sixth Supplemental Indenture............. November 1, 1979
Twenty-seventh Supplemental Indenture........... April 1, 1980
Twenty-eighth Supplemental Indenture............ October 1, 1980
Twenty-ninth Supplemental Indenture............. October 1, 1980
Thirtieth Supplemental Indenture................ December 1, 1982
Thirty-first Supplemental Indenture............. March 15, 1983
3
DESIGNATION DATED AS OF
----------- -----------
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
1
which supplemental indentures (other than the Sixty-Fifth Supplemental
Indenture) were recorded in various Counties in the States of North Carolina and
South Carolina, and were indexed and cross-indexed in the real and chattel
mortgage or security interest records in various Counties in the States of North
Carolina and South Carolina; and
WHEREAS, the Mortgage and the First through Sixty-Fourth Supplemental
Indentures were or are to be recorded in all Counties in the States of North
Carolina and South Carolina in which this ____________ 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:
--------------------
1 Here will be inserted additional executed supplemental indentures.
4
PRINCIPAL PRINCIPAL
AMOUNT AMOUNT
SERIES ISSUED OUTSTANDING
------ ------ -----------
3-3/4% Series due 1965......................$ 46,000,000 None
3-1/8% Series due 1979....................... 20,100,000 None
3-1/4% Series due 1979....................... 43,930,000 None
2-7/8% Series due 1981....................... 15,000,000 None
3-1/2% Series due 1982....................... 20,000,000 None
4-1/8% Series due 1988....................... 20,000,000 None
4-7/8% Series due 1990....................... 25,000,000 None
4-1/2% Series due 1991....................... 25,000,000 None
4-1/2% Series due 1994....................... 30,000,000 None
5-1/8% Series due 1996....................... 30,000,000 None
6-3/8% Series due 1997....................... 40,000,000 None
6-7/8% Series due 1998....................... 40,000,000 None
8-3/4% Series due 2000..................... 40,000,000 None
8-3/4% Series due August 1, 2000............. 50,000,000 None
7-3/8% Series due 2001....................... 65,000,000 None
7-3/4% Series due October 1, 2001............ 70,000,000 None
7-3/4% Series due 2002.......................100,000,000 None
7-3/4% Series due 2003.......................100,000,000 None
8-1/8% Series due November 1, 2003...........100,000,000 None
9-3/4% Series due 2004.......................125,000,000 None
11-1/8% Series due 1994...................... 50,000,000 None
11% Series due April 15, 1984................100,000,000 None
8-1/2% Series due October 1, 2007............100,000,000 None
9-1/4% Series due June 1, 2008...............100,000,000 None
10-1/2% Series due May 15, 2009..............125,000,000 None
12-1/4% Series due November 1, 2009..........100,000,000 None
Pollution Control Series A................... 63,000,000 None
14-1/8% Series due April 1, 1987.............125,000,000 None
Pollution Control Series B................... 50,000,000 None
Pollution Control Series C................... 6,000,000 None
11-5/8% Series due December 1, 1992..........100,000,000 None
Pollution Control Series D................... 48,485,000 $48,485,000
Pollution Control Series E................... 5,970,000 5,970,000
12-7/8% Series due December 1, 2013..........100,000,000 None
Pollution Control Series F................... 34,700,000 34,700,000
13-3/8% Series due April 1, 1994.............100,000,000 None
Pollution Control Series G...................122,615,000 None
Pollution Control Series H................... 70,000,000 None
Pollution Control Series I................... 70,000,000 None
Pollution Control Series J................... 6,385,000 1,795,000
Pollution Control Series K................... 2,580,000 2,580,000
Extendible Series due April 1, 1995..........125,000,000 None
11-3/4% Series due October 1, 2015...........100,000,000 None
8-7/8% Series due March 1, 2016..............100,000,000 None
8-1/8% Series due July 1, 1996...............125,000,000 None
8-1/2% Series due January 1, 2017............100,000,000 None
9.174% Series due December 1, 1992...........100,000,000 None
9% Series due September 1, 1993..............100,000,000 None
9.60% Series due April 1, 1991...............100,000,000 None
5
PRINCIPAL PRINCIPAL
AMOUNT AMOUNT
SERIES ISSUED OUTSTANDING
------ ------ -----------
Secured Medium-Term Notes, Series A..........200,000,000 None
8-1/8% Series due November 15, 1993..........100,000,000 None
Secured Medium-Term Notes, Series B..........100,000,000 50,000,000
8-7/8% Series due February 15, 2021......... 125,000,000 None
9% Series due April 1, 2022..................100,000,000 None
8-5/8% Series due September 15, 2021.........100,000,000 100,000,000
5.20% Series due January 1, 1995.............125,000,000 None
7-7/8% Series due April 15, 2004.............150,000,000 150,000,000
8.20% Series due July 1, 2022................150,000,000 150,000,000
6-3/4% Series due October 1, 2002............100,000,000 100,000,000
6-1/8% Series due February 1, 2000...........150,000,000 150,000,000
7-1/2% Series due March 1, 2023..............150,000,000 150,000,000
5-3/8% Series due July 1, 1998...............100,000,000 None
Secured Medium-Term Notes, Series C..........200,000,000 None
6-7/8% Series due August 15, 2023............100,000,000 100,000,000
5-7/8% Series due January 15, 2004...........150,000,000 150,000,000
Pollution Control Series L................... 72,600,000 72,600,000
Pollution Control Series M................... 50,000,000 50,000,000
6.80% Series due August 15, 2007.............200,000,000 200,000,000
2
which bonds are also hereinafter sometimes called bonds of the First through
Sixty-eighth Series, respectively; and
WHEREAS, Section 8 of the Mortgage provides that the form of each series
of bonds (other than the First Series) issued thereunder and of the coupons to
be attached to coupon bonds of such series shall be established by Resolution of
the Board of Directors of the Company and that the form of such series, as
established by said Board of Directors, shall specify the descriptive title of
the bonds and various other terms thereof, and may also contain such provisions
not inconsistent with the provisions of the Mortgage as said Board of Directors
may, in its discretion, cause to be inserted therein expressing or referring to
the terms and conditions upon which such bonds are to be issued and/or secured
under the Mortgage; and
WHEREAS, Section 120 of the Mortgage provides, among other things, that
any power, privilege or right expressly or impliedly reserved to or in any way
conferred upon the Company by any provision of the Mortgage, whether such power,
privilege or right is in any way restricted or is unrestricted, may be in whole
or in part waived or surrendered or subjected to any restriction if at the time
unrestricted or to additional restriction if already restricted, and the Company
may enter into any further covenants, limitations or restrictions for the
benefit of any one or more series of bonds issued thereunder, or the Company may
cure any ambiguity contained therein, or in any supplemental indenture, or may
establish the terms and provisions of any series of bonds other than said First
Series, by an instrument in writing executed and acknowledged by the Company in
such manner as would be necessary to entitle a conveyance of real estate to
record in all of the states in which any property at the time subject to the
lien of the Mortgage shall be situated; and
WHEREAS, the Company now desires to create __ 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
-----------------
2 Here will be inserted additional outstanding Series.
6
WHEREAS, the execution and delivery by the Company of this ____________
Supplemental Indenture, and the terms of the bonds of the ___________ Series,
hereinafter referred to, have been duly authorized by the Board of Directors of
the Company by appropriate resolutions of said Board of Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the Company, in consideration of the premises and of One Dollar to it
duly paid by the Trustees at or before the ensealing and delivery of these
presents, the receipt whereof is hereby acknowledged, and in further evidence of
assurance of the estate, title and rights of the Trustees and in order further
to secure the payment of both the principal of and interest and premium, if any,
on the bonds from time to time issued under the Mortgage, according to their
tenor and effect and the performance of all the provisions of the Mortgage
(including any instruments supplemental thereto and any modification made as in
the Mortgage provided) and of said bonds, hereby grants, bargains, sells,
releases, conveys, assigns, transfers, mortgages, pledges, sets over and
confirms (subject, however, to Excepted Encumbrances as defined in Section 6 of
the Mortgage) unto The Bank of New York and X.X. Xxxxxxxxxx, as Trustees under
the Mortgage, and to their successor or successors in said trust, and to said
Trustees and their successors and assigns forever, all the following described
properties of the Company:
All electric generating plants, stations, transmission lines, and
electric distribution systems, including permanent improvements,
extensions or additions to or about such electrical plants, stations,
transmission lines and distribution systems of the Company; all dams,
power houses, power sites, buildings, generators, reservoirs, pipe lines,
flumes, structures and works; all substations, transformers, switchboards,
towers, poles, wires, insulators, and other appliances and equipment, and
the Company's rights or interests in the land upon which the same are
situated, and all other property, real or personal, forming a part of or
appertaining to, or used, occupied or enjoyed in connection with said
generating plants, stations, transmission lines, and distribution systems;
together with all rights of way, easements, permits, privileges,
franchises and rights for or related to the construction, maintenance, or
operation thereof, through, over, under or upon any public streets or
highways, or the public lands of the United States, or of any State or
other lands; and all water appropriations and water rights, permits and
privileges; including all property, real, personal, and mixed, acquired by
the Company after the date of the execution and delivery of the Mortgage,
in addition to property covered by the above-mentioned supplemental
indentures (except any herein or in the Mortgage, as heretofore
supplemented, expressly excepted), now owned or, subject to the provisions
of Section 87 of the Mortgage, hereafter acquired by the Company and
wheresoever situated, including (without in anywise limiting or impairing
by the enumeration of the same the scope and intent of the foregoing or of
any general description contained in this ____________ Supplemental
Indenture) all lands, power sites, flowage rights, water rights, flumes,
raceways, dams, rights of way and roads; all steam and power houses, gas
plants, street lighting systems, standards and other equipment incidental
thereto, telephone, radio and television systems, air-conditioning systems
and equipment incidental thereto, water works, steam heat and hot water
plants, lines, service and supply systems, bridges, culverts, tracts, ice
or refrigeration plants and equipment, street and interurban railway
systems, offices, buildings and other structures and the equipment
thereof; all machinery, engines, boilers, dynamos, electric and gas
machines, regulators, meters, transformers, generators, motors,
electrical, gas and mechanical appliances, conduits, cables, water, steam
heat, gas or other pipes, gas mains and pipes, service pipes, fittings,
valves and connections, pole and transmission lines, wires, cables, tools,
implements, apparatus, furniture, chattels and choses in action; all
municipal and other franchises, consents or permits; all lines for the
transmission and distribution of electric current, gas, steam heat or
water for any purpose including poles, wires, cables, pipes, conduits,
ducts and all apparatus for use in connection therewith; all real estate,
lands, easements, servitudes, licenses, permits, franchises, privileges,
rights of way and other rights in or relating to real estate or the
occupancy of the same and (except as herein or in the Mortgage, as
heretofore supplemented, expressly excepted) all the right, title and
interest of the Company in and to all other property of any kind or nature
appertaining to and/or used and/or occupied and/or enjoyed in connection
with any property hereinbefore or in the Mortgage, as heretofore
supplemented, described.
TOGETHER WITH all and singular the tenements, hereditaments and
appurtenances belonging or in anywise appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder and remainders
and (subject to the provisions of Section 57 of the Mortgage) the tolls, rents,
revenues, issues, earnings, income, product
7
and profits thereof, and all the estate, right, title and interest and claim
whatsoever, at law as well as in equity, which the Company now has or may
hereafter acquire in and to the aforesaid property and franchises and every part
and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the provisions of
Section 87 of the Mortgage, all the property, rights and franchises acquired by
the Company after the date hereof (except any herein or in the Mortgage, as
heretofore supplemented, expressly excepted) shall be and are as fully granted
and conveyed hereby and as fully embraced within the lien hereof and the lien of
the Mortgage as if such property, rights and franchises were now owned by the
Company and were specifically described herein and conveyed hereby.
PROVIDED THAT the following are not and are not intended to be now or
hereafter granted, bargained, sold, released, conveyed, assigned, transferred,
mortgaged, pledged, set over or confirmed hereunder and are hereby expressly
excepted from the lien and operation of this ____________ Supplemental Indenture
and from the lien and operation of the Mortgage, namely: (1) cash, shares of
stock and obligations (including bonds, notes and other securities) not
hereafter specifically pledged, paid, deposited or delivered under the Mortgage
or covenanted so to be; (2) merchandise, equipment, materials or supplies held
for the purpose of sale in the usual course of business and fuel, oil and
similar materials and supplies consumable in the operation of any properties of
the Company; rolling stock, buses, motor coaches, vehicles and automobiles; (3)
bills, notes and accounts receivable, and all contracts, leases and operating
agreements not specifically pledged under the Mortgage, as heretofore
supplemented, or this ____________ Supplemental Indenture or covenanted so to
be; (4) electric energy and other materials or products generated, manufactured,
produced or purchased by the Company for sale, distribution or use in the
ordinary course of its business; and (5) any property and rights heretofore
released from the lien of the Mortgage; provided, however, that the property and
rights expressly excepted from the lien and operation of the Mortgage and this
____________ Supplemental Indenture in the above subdivisions (2) and (3) shall
(to the extent permitted by law) cease to be so excepted in the event and as of
the date that either or both of the Trustees or a receiver or trustee shall
enter upon and take possession of the Mortgaged and Pledged Property in the
manner provided in Article XII of the Mortgage by reason of the occurrence of a
Default as defined in said Article XII.
TO HAVE AND TO HOLD all such properties, real, personal and mixed,
granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged,
pledged, set over or confirmed by the Company as aforesaid, or intended so to
be, unto the Trustees, their successors and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the same terms,
trusts and conditions and subject to and with the same provisos and covenants as
are set forth in the Mortgage, as heretofore supplemented, this ___________
Supplemental Indenture being supplemental to the Mortgage.
AND IT IS HEREBY COVENANTED by the Company that all the terms, conditions,
provisos, covenants and provisions contained in the Mortgage, as heretofore
supplemented, shall affect and apply to the property hereinbefore described and
conveyed and to the estate, rights, obligations and duties of the Company and
the Trustees and the beneficiaries of the trust with respect to said property,
and to the Trustees and their successors as Trustees of said property in the
same manner and with the same effect as if the said property had been owned by
the Company at the time of the execution of the Mortgage and had been
specifically and at length described in and conveyed to the Trustees by the
Mortgage as a part of the property therein stated to be conveyed.
The Company further covenants and agrees to and with the Trustees and
their successor or successors in such trust under the Mortgage as follows:
8
ARTICLE I
___________ SERIES OF BONDS
SECTION 1. There shall be a series of bonds designated "_% Series due
_____________" (herein sometimes referred to as the "___________ Series"), each
of which shall also bear the descriptive title "First Mortgage Bond", and the
form thereof, which shall be established by Resolution of the Board of Directors
of the Company, shall contain suitable provisions with respect to the matters
hereinafter in this Section specified. Bonds of the ___________ Series shall be
initially issued in the aggregate principal amount of $__________, mature on
_____________, bear interest at the rate of _% per annum, payable from _______,
199_, if the date of said bonds is prior to _________, 199_, or, if the date of
said bonds is after __________ 199_, from the _______ or _________ next
preceding the date of said bonds, and thereafter semi-annually on _________ and
_______ of each year, be issued as fully registered bonds in the denominations
of One Thousand Dollars and, at the option of the Company, in any multiple or
multiples of One Thousand Dollars (the exercise of such option to be evidenced
by the execution and delivery thereof) and be dated as in Section 10 of the
Mortgage provided, the principal of and interest on each said bond to be payable
at the office or agency of the Company in the Borough of Manhattan, The City of
New York, in such coin or currency of the United States of America as at the
time of payment is legal tender for public and private debts.
(3) [SECTION 1. There shall be a series of bonds designated "Secured
Medium-Term Notes, Series _" (herein sometimes referred to as the "____________
Series"), each of which shall also bear the descriptive title "First Mortgage
Bond", and the form thereof, which shall be established by Resolution of the
Board of Directors of the Company, shall contain suitable provisions with
respect to the matters hereinafter in this Section specified. Bonds of the
____________ Series shall be issued from time to time in an aggregate principal
amount not to exceed $___________, be issued as fully registered bonds in the
denominations of One Thousand Dollars and, at the option of the Company, in any
multiple or multiples of One Thousand Dollars (the exercise of such option to be
evidenced by the execution and delivery thereof) and be dated as in Section 10
of the Mortgage provided; each bond of the ____________ Series shall mature on
such date not less than nine months nor more than 30 years from date of issue,
shall bear interest at such rate or rates (which may be either fixed or
variable) and have such other terms and provisions not inconsistent with the
Mortgage as the Board of Directors may determine in accordance with a Resolution
filed with the Corporate Trustee referring to this ____________ Supplemental
Indenture; the principal of and interest on each said bond to be payable at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, in such coin or currency of the United States of America as at the time of
payment is legal tender for public and private debts. Interest on bonds of the
____________ Series which bear interest at a fixed rate shall be payable
semiannually on _______ and _______ of each year and at maturity (each an
interest payment date). Interest on bonds of the ____________ Series which bear
interest at a variable rate shall be payable on the dates (each an interest
payment date) established on the Issue Date hereinafter specified with respect
to such bonds and shall be set forth in such bonds. Notwithstanding the
foregoing, so long as there is no existing default in the payment of interest on
the bonds of the ____________ Series, all bonds of the ____________ Series
authenticated by the Corporate Trustee after the Record Date hereinafter
specified for any interest payment date, and prior to such interest payment date
(unless the Issue Date is after such Record Date), shall be dated the date of
authentication, but shall bear interest from such interest payment date, and the
person in whose name any bond of the ____________ Series is registered at the
close of business on any Record Date with respect to any interest payment date
shall be entitled to receive the interest payable on such interest payment date,
notwithstanding the cancellation of such bond of the ____________ Series, upon
any transfer or exchange thereof subsequent to the Record Date and on or prior
to such interest payment date. If the Issue Date of the bonds of the
____________ Series of a designated interest rate and maturity is after such
Record Date, such bonds shall bear interest from the Issue Date (unless some
other date is determined by the Board of Directors in accordance with a
Resolution filed with the Corporate Trustee referring to this ____________
Supplemental Indenture) but payment of interest shall commence on the second
interest payment date succeeding the Issue Date. "Record Date" for bonds of the
____________ Series which bear interest at a fixed rate shall mean ______ for
interest payable _________ and __________ for interest payable __________,
-----------------------
(3) These provisions will be inserted in lieu of the first paragraph of
Section 1 above in any supplemental indenture relating to the issuance of
First Mortgage Bonds which are designated "Secured Medium-Term Notes,
Series ______".
9
and __________ for bonds of the _____________ Series which bear interest at a
variable rate, the date 15 calendar days prior to any interest payment date,
provided that, interest payable on the maturity date will be payable to the
person to whom the principal thereof shall be payable. "Issue Date" with respect
to bonds of the ____________ Series of a designated interest rate and maturity
shall mean the date of first authentication of bonds of such designated interest
rate and maturity.]
(I) Bonds of the ___________ Series shall be redeemable after ________,
____ at the option of the Company or by the application (either at the option of
the Company or pursuant to the requirements of the Mortgage) of cash deposited
with the Corporate Trustee pursuant to any of the provisions of Section 38,
Section 39 or Section 64 of the Mortgage or with the Proceeds of Released
Property in whole at any time, or in part from time to time, prior to maturity,
upon notice as provided in Sections 52 and 54 of the Mortgage (given by mail at
least 30 days and not more than 90 days prior to the date fixed for redemption),
at the following general redemption prices, expressed in percentages of the
principal amount of the bonds to be redeemed:
GENERAL REDEMPTION PRICES
If redeemed during 12 months period ending _________,
together, in each case, with accrued interest on the principal amount thereof to
the date fixed for redemption.
(4)[(I) Bonds of the ____________ Series shall be redeemable at the option
of the Company or by the application (either at the option of the Company or
pursuant to the requirements of the Mortgage) of cash deposited with the
Corporate Trustee pursuant to any of the provisions of Section 38, Section 39 or
Section 64 of the Mortgage or with the Proceeds of Released Property in whole at
any time, or in part from time to time, prior to maturity, upon notice as
provided in Sections 52 and 54 of the Mortgage (given by mail at least 30 days
and not more than 90 days prior to the date fixed for redemption), as the Board
of Directors may determine in accordance with a Resolution filed with the
Corporate Trustee referring to this ____________ Supplemental Indenture.]
(5)[(I) The bonds of the ____________ Series shall be redeemable at the
option of the Company or by the application (either at the option of the Company
or pursuant to the requirements of the Mortgage) of cash deposited with the
Corporate Trustee pursuant to any of the provisions of Sections 38, 39 or 64 of
the Mortgage or with the Proceeds of Released Property in whole at any time, or
in part from time to time, prior to maturity, upon notice as provided in
Sections 52 and 54 of the Mortgage (given by mail at least 30 days and not more
than 90 days prior to the date fixed for redemption (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 10 basis points, plus in each case accrued interest on
the principal amount thereof to the Redemption Date.
---------------
(4) This provision will be inserted in lieu of clause (I) of Section 1 above
in any supplemental indenture relating to the issuance of First Mortgage
Bonds which are designated "Secured Medium-Term Notes, Series ___".
(5) This provision may be inserted in lieu of clause (I) of Section 1 above.
10
"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 bonds of the ____________ 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 bonds of the ____________ Series. "Independent Investment
Banker" means _________________________________ 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 Corporate 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, (A) the average
of the Reference Treasury Dealer Quotations for such Redemption Date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(B) if the Company obtains fewer than four Reference Treasury Dealer Quotations,
the average of all such Quotations.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Corporate 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 Corporate 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 Corporate 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 ________________________,
_____________________, and _____________________, 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 Corporate Trustee before any Redemption
Date for the bonds of the ____________ Series its calculation of the redemption
price applicable to such redemption. Except with respect to the obligations of
the Corporate Trustee expressly set forth in the foregoing definitions of
"Comparable Treasury Issue" and "Reference Treasury Dealer Quotations," the
Corporate 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 bonds of the ____________ Series.
In lieu of stating the redemption price, notices of redemption of the
bonds of the ____________ Series shall state substantially the following: "The
redemption price of the bonds to be redeemed shall equal the greater of (i) 100%
of the principal amount of such bonds 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
____________ Supplemental Indenture) plus 10 basis points, plus in each case
accrued interest on the principal amount thereof to the Redemption Date.]
Except as provided herein, Article X of the Mortgage, as heretofore
supplemented, shall apply to redemptions of bonds of the ____________ Series.
(II) At the option of the registered owner, any bonds of the ___________
Series, upon surrender thereof for cancellation at the office or agency of the
Company in the Borough of Manhattan, The City of New York, shall be exchangeable
for a like aggregate principal amount of bonds of the same series of other
authorized denominations
11
(6)[which have the same Issue Date, maturity date, interest rate or rates, and
redemption provisions, if any]. The bonds of the ___________ Series may bear
such legends as may be necessary to comply with any law or with any rules or
regulations made pursuant thereto or with the rules or regulations of any stock
exchange or to conform to usage or agreement with respect thereto.
Bonds of the ___________ Series shall be transferable upon the surrender
thereof for cancellation, together with a written instrument of transfer in form
approved by the registrar duly executed by the registered owner or by his duly
authorized attorney, at the office or agency of the Company in the Borough of
Manhattan, The City of New York.
[Bonds of the __________, 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 _____________ __, ______, between the Company and
_______________ as Trustee (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.](7)
Upon any exchange or transfer of bonds of the ___________ Series, the
Company may make a charge therefor sufficient to reimburse it for any tax or
taxes or other governmental charge required to be paid by the Company, as
provided in Section 12 of the Mortgage, but the Company hereby waives any right
to make a charge in addition thereto for any exchange or transfer of bonds of
said Series.
[The Company's obligation to make payments with respect to the principal
of, premium, if any, and or interest on, the Bonds of the __________ 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 Senior
Notes shall have been fully or partially paid (other than by the application of
the proceeds of a payment in respect of such Bonds of the ____ Series), as the
case may be, or there shall have been deposited with the Senior Note Trustee
pursuant to the Senior Note Indenture trust funds sufficient under such
indenture to fully or partially pay, as the case may be, the corresponding
amount then due of principal of, and/or premium, if any and/or interest on, the
Senior Notes (other than by the application of the proceeds of a payment in
respect of such Bonds of the ____ Series)(8)
(9)SECTION 2. Except as otherwise provided in this Section, the registered
owner of all bonds of the ____________ Series shall be Cede & Co., as nominee of
The Depository Trust Company ("DTC"). Payment of interest for any bonds of the
____________ Series registered in the name of Cede & Co. shall be made by wire
transfer to the account of Cede & Co. on the interest payment date for such
bonds of the ____________ Series at the address indicated for Cede & Co. in the
registration books of the Company kept by the registrar, anything in the bonds
of the ____________ Series to the contrary notwithstanding.
The bonds of the ____________ Series shall initially be issued in the form
of one or more fully registered global bonds ("Global Bonds") which will have an
aggregate principal amount equal to the bonds of the ____________ Series
represented thereby. Upon initial issuance, the ownership of the bonds of the
____________ Series shall be registered in the registration books of the Company
kept by the registrar in the name of Cede & Co., as nominee of DTC. The
Corporate Trustee and the Company may treat DTC (or its nominee) as the sole and
exclusive owner of the bonds of the ____________ Series registered in its name
for the purposes of payment of the principal of, or premium, if any, or interest
on such bonds of the ____________ Series, giving any notice permitted or
required to be given to holders herein, registering the transfer of such bonds
of the ____________ Series, obtaining
------------------
(6) Bracketed language will be added in any supplemental indenture relating to
the issuance of First Mortgage Bonds which are designated "Secured
Medium-Term Notes, Series __".
(7) This paragraph will be included in lieu of the preceding paragraph in a
supplemental indenture relating to the issuance of Senior Notes.
(8) This paragraph will be included in a supplemental indenture relating to
the issuance of Senior Notes.
(9) This provision may be inserted in any supplemental indenture relating to
the issuance of First Mortgage Bonds which are to be "book-entry" bonds.
12
any consent or other action to be taken by holders and for all other purposes
whatsoever; and neither the Trustees nor the Company shall be affected by any
notice to the contrary. Neither the Trustees nor the Company shall have any
responsibility or obligation to any DTC participant, any person claiming a
beneficial ownership interest in bonds of the ____________ Series registered in
the name of Cede & Co. under or through DTC or any DTC participant, or any other
person not shown on the registration books of the Company kept by the registrar
as being a holder with respect to the accuracy of any records maintained by DTC,
Cede & Co., or any DTC participant; the payment by DTC or any DTC participant to
any beneficial owner of any amount in respect of the principal of, or premium,
if any, or interest on the bonds of the ____________ Series registered in the
name of Cede & Co.; the delivery to any DTC participant or any beneficial owner
of any notice which is permitted or required to be given to holders herein; the
selection by DTC or any DTC participant of any person to receive payment in the
event of a partial payment of any bonds of the _____________ Series registered
in the name of Cede & Co.; or any consent given or other action taken by DTC as
holder. All principal of, and premium, if any, and interest on any bonds of the
____________ Series registered in the name of Cede & Co., shall be paid only to
or upon the order of Cede & Co., as nominee of DTC, and all such payments shall
be valid and effective to fully satisfy and discharge the Company's obligations
with respect to the principal of, and premium, if any, and interest on such
bonds of the ____________ Series to the extent of the sum or sums so paid. Upon
delivery by DTC to the Corporate Trustee of written notice to the effect that
DTC had determined to substitute a nominee in place of Cede & Co., as registered
owner of any bonds of the ____________ Series, and subject to the provisions
herein with respect to record dates, the words "Cede & Co." herein shall refer
to such new nominee of DTC with respect to such bonds.
A Global Bond shall be exchangeable for definitive certificates registered
in the names of persons other than DTC or its nominee only if (i) DTC notifies
the Company that it is unwilling or unable to continue as a depository for such
Global Bond and no successor depository shall have been appointed, or if at any
time DTC ceases to be a clearing agency registered to act as such depository or
(ii) the Company in its sole discretion determines that such Global Bond shall
be so exchangeable. In any such event, the Company shall issue, register the
transfer of and exchange definitive certificates as requested by DTC in
appropriate amounts and the Company shall be obligated to prepare and deliver,
and the Corporate Trustee shall be obligated to authenticate, definitive
certificates.
So long as any bonds of the ____________ Series are registered in the name
of Cede & Co., as nominee of DTC, the Company and the Corporate Trustee are
hereby authorized to enter in any arrangements determined necessary or desirable
with DTC in order to effectuate this Section 2 and both of them shall act in
accordance with the Mortgage, as heretofore supplemented, and any such
arrangements. Without limiting the generality of the foregoing, any such
arrangements may alter the manner of effecting delivery of bonds of the
____________ Series, the transfer of funds for the payment of the bonds of the
____________ Series, and the delivery of notices to DTC.
In connection with any notice or other communication to be provided to
holders by the Company or the Corporate Trustee with respect to any consent or
other action to be taken by holders, so long as any bonds of the ____________
Series are registered in the name of Cede & Co., as nominee of DTC, the Company
shall establish a record date for such consent or other action and give DTC
notice of such record date not less than 15 calendar days in advance of such
record date. If a record date is fixed, those persons who were holders at such
record date (or their duly designated proxies), and only those persons, shall be
entitled in consent to such amendment, supplement or waiver or to revoke any
consent previously given, whether or not such persons continue to be holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
[SECTION 3. Upon payment of the principal of, and premium if any, and
interest due on the Senior Notes, whether at maturity or prior to maturity by
acceleration, redemption or otherwise, or upon provision for the payment thereof
having been made in accordance with the Senior Note Indenture (other than by the
application of the proceeds of a payment in respect of such Bonds of the ____
Series), Bonds of the _______________ Series in a principal amount equal to the
principal amount of Senior Notes so paid or for which such provision for payment
has been made shall be deemed fully paid, satisfied and discharged and the
obligations of the Company thereunder shall be terminated and such Bonds of the
________________ Series shall be surrendered to and canceled by the Trustees.
From and after the Release Date (as defined in the Senior Note Indenture), the
Bonds of the ____________ Series shall be deemed fully paid, satisfied and
discharged and the obligation of the Company
13
thereunder shall be terminated. On the Release Date, the Bonds of the
____________ Series shall be surrendered to and canceled by the Trustees.](10)
ARTICLE II
DIVIDEND COVENANT
(11)SECTION 4. The Company covenants and agrees that, so long as any of
the bonds of the ___________ Series remain Outstanding, the Company will not
declare or pay any dividends upon its common stock (other than dividends in
common stock) or make any other distributions on its common stock or purchase or
otherwise retire any shares of its common stock, unless immediately after such
declaration, payment, purchase, retirement or distribution (hereinafter in this
Section referred to as "Restricted Payments"), and giving effect thereto, the
amount arrived at by adding
(a) the aggregate amount of all such Restricted Payments (other than
the dividend of fifty cents ($.50) per share declared on December 8, 1948
and paid on February 1, 1949 to holders of Common Stock) made by the
Company during the period from December 31, 1948, to and including the
effective date of the Restricted Payment in respect of which the
determination is being made, plus
(b) an amount equal to the aggregate amount of cumulative dividends
for such period (whether or not paid) on all preferred stock of the
Company from time to time outstanding during such period, at the rate or
rates borne by such preferred stock, plus
(c) an amount equal to the amount, if any, by which fifteen per
centum (15%) of the Gross Operating Revenues of the Company for such
period shall exceed the aggregate amount during such period expended
and/or accrued on its books for maintenance and/or appropriated on its
books out of income for property retirement, in each case in respect of
the Mortgaged and Pledged Property and/or automotive equipment used
primarily in the electric utility business of the Company (but excluding
any provisions for amortization of any amounts included in utility plant
acquisition adjustment accounts or utility plant adjustment accounts),
will not exceed the amount of the aggregate net income of the Company for said
period available for dividends (computed and ascertained in accordance with
sound accounting practice, on a cumulative basis, including the making of proper
deductions for any deficits occurring during any part of such period), plus
$3,000,000.
The Company further covenants and agrees that not later than May 1 of each
year beginning with the year 199_ it will furnish to the Corporate Trustee a
Treasurer's Certificate stating whether or not the Company has fully observed
the restrictions imposed upon it by the covenant contained in this Section 3.
[SECTION 4. The Company covenants and agrees, that so long as any of the
bonds of the _____ Series remain Outstanding, the Company will declare and pay
dividends in cash or property on any shares of its common stock only either (1)
out of its Surplus or (2) in case there shall be no Surplus, out of its net
profits for the fiscal year in which the dividend is declared and/or the
preceding fiscal year. If the Capital of the Company shall have been diminished
by the depreciation in the value of its property, or by losses, or otherwise, to
an amount less than the aggregate amount of the Capital represented by the
issued and outstanding stock of all classes having a preference upon the
distribution of assets of the Company, the Board of Directors shall not declare
and pay out of such net profits any dividends upon any shares of its common
stock until the deficiency in the amount of Capital represented by the issued
and outstanding stock of all classes having a preference upon the distribution
of assets shall have been repaired.
------------------
(10) This Section will be included in a Supplemental Indenture relating to the
issuance of Senior Notes.
(11) At the option of the Company this Section may be replaced by the bracketed
Section.
14
The term "Capital" shall mean that part of the consideration received by
the Company for any shares of its capital stock which has been determined by a
Board Resolution to be capital, or, if the Board of Directors shall not have so
determined, "Capital" shall mean an amount equal to the aggregate par value of
shares having a par value, plus the amount of consideration for such shares
without par value.
The term "Surplus" shall mean the excess of the net assets of the Company
over its Capital.]
ARTICLE III
CERTAIN PROVISIONS WITH RESPECT TO FUTURE ADVANCES
SECTION 5. Upon the filing of this ____________ Supplemental Indenture for
record in all counties in which the Mortgaged and Pledged Property is located,
and until a further indenture or indentures supplemental to the Mortgage shall
be executed and delivered by the Company to the Trustees pursuant to
authorization by the Board of Directors of the Company and filed for record in
all counties in which the Mortgaged and Pledged Property is located further
increasing or decreasing the amount of future advances which may be secured by
the Mortgage, as supplemented, the Mortgage, as supplemented, may secure future
advances and other indebtedness and sums not to exceed in the aggregate
$___________, in addition to $_____________ in aggregate principal amount of
bonds to be Outstanding at the time of such filing, and all such advances and
other indebtedness and sums shall be secured by the Mortgage, as supplemented,
equally, to the same extent and with the same priority, as the amount originally
advanced on the security of the Mortgage, namely, $46,000,000, and such advances
and other indebtedness and sums may be made or become owing and may be repaid
and again made or become owing and the amount so stated shall be considered only
as the total amount of such advances and other indebtedness and sums as may be
outstanding at one time.
[ARTICLE IV
RESERVATION OF RIGHTS TO AMEND CERTAIN PROVISIONS
OF THE MORTGAGE
SECTION 6. The Company reserves the right, without any consent or other
action by holders of bonds of the _________ Series or of any subsequently
created series to amend the Mortgage, as heretofore amended and supplemented, as
follows:
To amend subdivision (b) of clause (B) of Section 4 of the Mortgage by
adding the following words at the beginning thereof:
"ten-sevenths of"
SECTION 7. The Company reserves the right, without any consent or other
action by holders of bonds of the __________ Series or of any subsequently
created series to amend the Mortgage, as heretofore amended and supplemented, as
follows:
To amend the second and third lines of clause (A) of Section 7 of the
Mortgage by replacing the phrase "within the fifteen (15) calendar months" with
the phrase "within the eighteen (18) calendar months".
SECTION 8. The Company reserves the right, without any consent or other
action by holders of bonds of the ___________ Series or any subsequently created
series to amend the Mortgage, as heretofore amended and supplemented, as
follows:
15
To amend the excepted property clause on page 121 of the Mortgage by
deleting the word "and" at the end of subdivision (3) and adding a subdivision
(5) immediately after the phrase "ordinary course of its business;" to read as
follows:
and "(5) any property which does not constitute Property
Additions, Funded Property or Funded Cash, as hereinafter defined;"
SECTION 9. The Company reserves the right, without any consent or other
action of holders of bonds of the __________ Series or of any subsequently
created series to amend the Mortgage, as heretofore amended and supplemented, as
follows:
To eliminate subsection III of Section 38.
SECTION 10. The Company reserves the right, without any consent or other
action by holders of bonds of the __________ Series or of any subsequently
created series, to amend the Mortgage, as heretofore amended and supplemented,
as follows:
To amend subsection 3(a) of Section 59 of the Mortgage to read as follows:
"(a) a Treasurer's Certificate describing in reasonable detail
the property to be released and requesting such release;
To amend subsection 3(b) of Section 59 of the Mortgage to read as follows:
"(b) (i) the Fair Value and (ii) the Cost (or as to Property
Additions constituting Funded Property of which the Fair Value to the
Company at the time the same became Funded Property was less than the Cost
as determined pursuant to Section 4 hereof, then such Fair Value in lieu
of Cost), in the opinion of the signers, of the property to be released;
and the Cost (or as to Property Additions constituting Funded Property of
which the Fair Value to the Company at the time the same became Funded
Property was less than the Cost as determined pursuant to Section 4
hereof, then such Fair Value in lieu of Cost), in the opinion of the
signers, of any portion thereof that is Funded Property;"
To amend the first six lines of subsection (4) of Section 59 of the
Mortgage to read as follows:
"(4) an amount in cash, to be held by the Corporate Trustee as part
of the Mortgaged and Pledged Property, equivalent to the amount, if any,
by which the Cost (or as to Property Additions constituting Funded
Property of which the Fair Value to the Company at the time the same
became Funded Property was less than the Cost as determined pursuant to
Section 4 hereof, then such Fair Value in lieu of Cost) of the property to
be released, as specified in the Engineer's Certificate provided for in
subdivision (3) above, exceeds the aggregate of the following items:"
To amend the first sentence of subsection (4)(c) of Section 59 of the
Mortgage by adding the following words at the beginning thereof:
"an amount equal to ten-sevenths of"
To amend Section 60 of the Mortgage by inserting "(I)" before the word
"Unless" in the first line thereof, and by adding the following subsection (II)
at the end of Section 60;
16
"(II) Unless the Company is in default in the payment of the
interest on any bonds then Outstanding hereunder or one or more of the
Defaults defined in Section 65 hereof shall have occurred and be
continuing, the Company may obtain the release of any of the Mortgaged and
Pledged Property that is not Funded Property, except cash then held by the
Corporate Trustee (provided, however, that Prior Xxxx Xxxxx deposited with
the Corporate Trustee shall not be released or surrendered except as
provided in Article IX hereof and obligations secured by purchase money
mortgage deposited with the Corporate Trustee shall not be released except
as provided in Section 61 hereof), and the Corporate Trustee shall release
all its right, title and interest in and to the same from the Lien hereof
upon application of the Company and receipt by the Corporate Trustee of
the following (in lieu of complying with the requirements of Section 59
hereof):
(1) a Treasurers' Certificate describing in reasonable detail the
property to be released and requesting such release, and stating:
(a) that the Company is not in default in the payment of
interest on any bonds then Outstanding hereunder and that no Default
has occurred and is continuing;
(b) that the property to be released is not Funded Property;
and
(c) that (except in any case where a governmental body or
agency has exercised a right to order the Company to divest itself
of such property) such release is in the opinion of the signers
desirable in the conduct of the business of the Company;
(2) an Engineer's Certificate, made and dated not more than ninety
(90) days prior to the date of such application, stating:
(a) a description of the property to be released;
(b) the Fair Value, in the opinion of the signers, of the
property (or securities) to be released;
(c) that in the opinion of the signers such release will not
impair the security under this Indenture in contravention of the
provisions hereof; and
(d) that the Company has Property Additions constituting
property that is not Funded Property (not including any Property
Additions then being released) of a Cost or Fair Value to the
Company (whichever is less) of not less than one dollar ($1) (after
making any deductions and any additions pursuant to the provisions
of Section 4 hereof) after deducting the Cost of the property then
being released; and
(3) an Opinion of Counsel stating the signer's opinion to the effect
that on the delivery to the corporate Trustee of the certificates, if any,
and documents specified in such Opinion of Counsel, the conditions
precedent provided for in this Indenture relating to the release of the
property in question have been complied with; and in case the Corporate
Trustee is requested to release any franchise, further stating that in
such signer's opinion such release will not impair to any material extent
the right of the Company to operate any of its remaining properties."
SECTION 11. The Company reserves the right, without action of holders of
bonds of _____ Series or of any subsequently created series to make such
amendments to the Mortgage as heretofore amended and supplemented, and as it may
be amended pursuant to the Thirteenth Supplemental Indenture, as shall be
necessary in order to amend the indicated Sections of the Mortgage, as such
Sections are then in effect, to read as follows:
"SECTION 112. The holders of (a) a majority in principal amount of
the bonds Outstanding hereunder when such meeting is held or (b) if the action
proposed at said meeting adversely affects solely the rights of
17
the holders of one or more, but less than all, series of bonds then Outstanding,
then only a majority in principal amount of those bonds then Outstanding so to
be adversely affected must be present at such meeting in person or by proxy in
order to constitute a quorum for the transaction of business, less than a
quorum, however, having power to adjourn.
"SECTION 113. Subject to the provisions of Section 80 hereof, any
modification or alteration of this Indenture (including any indentures
supplemental hereto) and/or of the rights and obligations of the Company and/or
the rights of the holders of bonds and/or coupons issued hereunder in any
particular (including but not limited to the waiver of any past Default, as
defined in Section 65 hereof, or other default, and its consequences), may be
made at a meeting of bondholders duly convened and held in accordance with the
provisions of this Article, by resolution duly adopted (a) by the affirmative
vote of the holders of a majority or more in principal amount of the bonds
Outstanding hereunder, or (b) if the rights of one or more, but less than all,
series of bonds then Outstanding are to be adversely affected by action taken at
such meeting, then only by affirmative vote of the holders of a majority in
principal amount of those bonds so to be adversely affected and Outstanding
hereunder when such meeting is held, considered as one class, and in every case
approved by Resolution of the Board of Directors of the Company, as herein
specified; provided, however, that no such modification or alteration shall,
without the consent of the holder of any bond issued hereunder affected thereby,
(1) impair or affect the right of such holder to receive payment of the
principal of (and premium, if any) and interest on such bond, on or after the
respective due dates expressed in such bond, or to institute suit for the
enforcement of any such payment on or after such respective dates, or (2) permit
the creation of any lien ranking prior to, or on a parity with, the Lien of this
Indenture with respect to any of the Mortgaged and Pledged Property, or (3)
permit the deprivation of any non-assenting bondholder of a lien upon the
Mortgaged and Pledged Property for the security of his bonds (subject only to
the lien of taxes, assessments or governmental charges not then delinquent and
to any mortgage or other liens existing upon such property which are prior
hereto at the date of the calling of any such bondholders' meeting), or (4)
permit the reduction of the percentage required by the provisions of this
Section for the taking of any action under this Section with respect to any bond
Outstanding hereunder. For all purposes of this Article, the Trustees, subject
to the provisions of Sections 88 and 89 hereof, shall be entitled to rely upon
an Opinion of Counsel with respect to the extent, if any, as to which any action
taken at such meeting affects the rights under this Indenture or under any
indenture supplemental hereto of any holders of bonds then Outstanding
hereunder.
"Except for the purpose of waiving any past Default, as defined in
Section 65 hereof, and its consequences, in which event the provisions of
Section 71 hereof shall be applicable, bonds owned and/or held by and/or for
account of and/or for the benefit or interest of the Company, or any corporation
of which the Company shall own twenty-five per centum (25%) or more of the
outstanding voting stock, shall not be deemed Outstanding for the purpose of any
vote or of any calculation of bonds Outstanding in this Article XVIII provided
for, except that, for the purpose of determining whether the Trustees shall be
protected in relying on any such vote or calculation, only bonds which the
Trustees, or either of them, know are so owned and/or held, shall be excluded.
"SECTION 116. (A) Anything in this Article contained to the contrary
notwithstanding, the Corporate Trustee shall accept the written consent (in any
number of instruments of similar tenor executed by bondholders or by their
attorneys appointed in writing) of the holders of a majority or more in
principal amount of the bonds Outstanding hereunder, or if the rights of one or
more, but less than all, series of bonds then Outstanding are to be adversely
affected by action taken pursuant to such consent, then the Corporate Trustee
shall accept the written consent of the holders of a majority in principal
amount of only such bonds so to be adversely affected and Outstanding hereunder
(at the time the last such needed consent is delivered to the Corporate Trustee)
in lieu of the holding of a meeting pursuant to this Article and in lieu of all
action at such a meeting and with the same force and effect as a resolution duly
adopted in accordance with the provisions of Section 113 hereof.
"(B) Instruments of consent shall be witnessed or in the alternative
may (a) have the signature guaranteed by a bank or trust company or a registered
dealer in securities, (b) be acknowledged before a Notary Public or other
officer authorized to take acknowledgments, or (c) have their genuineness
otherwise established to the satisfaction of the Corporate Trustee.
18
"The amount of bonds payable to bearer, and the series and serial
numbers thereof, held by a person executing an instrument of consent (or whose
attorney has executed an instrument of consent in his behalf), and the date of
his holding the same, may be proved either by exhibiting the bonds themselves to
the Corporate Trustee or by a certificate executed (i) by any bank, or trust or
insurance company organized under the laws of the United States of America or of
any state thereof, (ii) by any trustee, secretary, administrator or other proper
officer of any pension, welfare, hospitalization or similar fund, (iii) by the
United States of America, any Territory thereof, the District of Columbia, any
State of the United States, any municipality in any State or Territory of the
United States or any public instrumentality of the United States, any State or
Territory, or (iv) by any other person or corporation satisfactory to the
Corporate Trustee. A bondholder in any of the foregoing categories may sign a
certificate in his own behalf.
"Each such certificate shall be dated and shall state in effect that
as of the date thereof a coupon bond or bonds of a specified series and bearing
a specified serial number or numbers was deposited with or exhibited to the
signer of such certificate. The holding by the person named in any such
certificate of any bond specified therein shall be presumed to continue unless
(1) any certificate bearing a later date issued in respect of the same bond
shall be produced, (2) the bond specified in such certificate (or any bond or
bonds issued in exchange or substitution for such bond) shall be produced by
another holder, or (3) the bond specified in such certificate shall be
registered as to principal or shall have been surrendered in exchange for a
fully registered bond registered in the name of another holder. The Corporate
Trustee may nevertheless in its discretion require further proof in cases where
it deems further proof desirable. The ownership of registered bonds shall be
proved by the registry books.
"(C) Until such time as the Corporate Trustee shall receive the
written consent of the necessary per centum in principal amount of the bonds
required by the provisions of subsection (A) above for action contemplated by
such consent, any holder of a bond, the serial number of which is shown by the
evidence to be included in the bonds the holders of which have consented to such
action, may, by filing written notice with the Corporate Trustee at its
principal office and upon proof of holding as provided in subsection (B) above,
revoke such consent so far as it concerns such bond. Except as aforesaid, any
such consent shall be conclusive and binding upon such holder and upon all
future holders of such bond (and any bond issued in lieu thereof or exchanged
therefor), irrespective of whether or not any notation of such consent is made
upon such bond, and in any event any action taken by the holders of the
percentage in aggregate principal amount of the bonds specified in subsection
(A) above in connection with such action shall, subject to the provisions of the
last sentence of Section 114 hereof, be conclusively binding upon the Company,
the Trustees and the holders of all the bonds."](12)
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 12. Subject to the amendments provided for in this ____________
Supplemental Indenture, the terms defined in the Mortgage, as heretofore
supplemented, shall, for all purposes of this ____________ Supplemental
Indenture, have the meanings specified in the Mortgage, as heretofore
supplemented.
SECTION 13. The provisions of the third and fourth paragraphs of Section
64 of the Mortgage with reference to the bonds of the First Series (therein
called "1965 Series") shall also be deemed to apply separately to the bonds of
the ___________ Series to the same extent as if such paragraphs had been
repeated in said Section 64 with the words "___________ Series" substituted
therein wherever the figure and word "1965 Series" occur.
SECTION 14. 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:
------------------
(12) Any of the provisions contained in this Article IV may be inserted in any
subsequent supplemental indenture.
19
The Trustees shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this ____________ Supplemental
Indenture or for or in respect of the recitals contained herein, all of
which recitals are made by the Company solely. In general each and every
term and condition contained in Article XVI of the Mortgage shall apply to
and form part of this ____________ Supplemental Indenture with the same
force and effect as if the same were herein set forth in full with such
omissions, variations and insertions, if any, as may be appropriate to
make the same conform to the provisions of this ____________ Supplemental
Indenture.
SECTION 15. Subject to the provisions of Article XV and Article XVI of the
Mortgage, whenever in this ____________ Supplemental Indenture either of the
parties hereto is named or referred to, this shall be deemed to include the
successors or assigns of such party, and all the covenants and agreements in
this ____________ Supplemental Indenture contained by or on behalf of the
Company or by or on behalf of the Trustees shall bind and inure to the benefit
of the respective successors and assigns of such parties whether so expressed or
not.
SECTION 16. Nothing in this ____________ Supplemental Indenture, expressed
or implied, is intended, or shall be construed, to confer upon, or to give to,
any person, firm or corporation, other than the parties hereto and the holders
of the Outstanding bonds and coupons, any right, remedy or claim under or by
reason of this ____________ Supplemental Indenture or any covenant, condition,
stipulation, promise or agreement hereof, and all the covenants, conditions,
stipulations, promises and agreements in this ____________ Supplemental
Indenture contained by or on behalf of the Company shall be for the sole and
exclusive benefit of the parties hereto, and of the holders of the Outstanding
bonds and coupons.
SECTION 17. This ____________ Supplemental Indenture shall be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
20
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 X.X.
Xxxxxxxxxx has hereunto set his hand and affixed his seal, all as of the day and
year first above written.
CAROLINA POWER & LIGHT COMPANY
By....................................
---------
ATTEST:
......................................
-------------------
Executed, sealed and delivered by
CAROLINA POWER & LIGHT
COMPANY in the presence of:
......................................
------------------
......................................
-----------------
00
XXX XXXX XX XXX XXXX, as Trustee
By ......................................
------------------------
ATTEST:
......................................
-------------------
......................................(L.S.)
X.X. Xxxxxxxxxx, Individual Trustee
Executed, sealed and delivered
by THE BANK OF NEW YORK
and X.X. XXXXXXXXXX
in the presence of:
......................................
--------------
......................................
--------------
22
STATE OF NORTH CAROLINA )
) SS.:
COUNTY OF WAKE )
This ____ day of _____, A.D. 199_, personally came before me,
____________, a Notary Public in and for the County aforesaid,
_________________, who, being by me duly sworn, says that she is the _________
of CAROLINA POWER & LIGHT COMPANY, and that the seal affixed to the foregoing
instrument in writing is the corporate seal of said company, and that said
writing was signed and sealed by her in behalf of said corporation by its
authority duly given. And the said _____________ acknowledged the said writing
to be the act and deed of said corporation.
On the ____ day of _____, in the year of 199_, before me personally came
_________, to me known, who, being by me duly sworn, did depose and say that she
resides at ____________________________, State of North Carolina; that she is
the _________ of CAROLINA POWER & LIGHT COMPANY, one of the corporations
described in and which executed the above instrument; that she knows the seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the Board of Directors of said
corporation, and that she signed her name thereto by like order.
......................................
------------------
NOTARY PUBLIC, State of North Carolina
Wake County
My Commission Expires _____________
STATE OF NORTH CAROLINA )
) SS.:
COUNTY OF WAKE )
Personally appeared before me __________________, who being duly sworn,
says that she saw the corporate seal of CAROLINA POWER & LIGHT COMPANY affixed
to the above written instrument, and that she also saw _________________, the
_________, with ________________, an Assistant Secretary, of said CAROLINA POWER
& LIGHT COMPANY, sign and attest the same, and that she, deponent, with
_______________, witnessed the execution and delivery thereof as the act and
deed of said CAROLINA POWER & LIGHT COMPANY.
......................................
------------------
Sworn to before me this
____ day of _____, 199_
......................................
------------------
NOTARY PUBLIC, State of North Carolina
Wake County
My Commission Expires ____ __, ____
00
XXXXX XX XXX XXXX )
) SS.:
COUNTY OF NEW YORK )
This ____ day of _____, A.D. 199_, personally came before me,
_____________, a Notary Public in and for the County aforesaid,
_________________, who, being by me duly sworn, says that he is an Assistant
Vice President of THE BANK OF NEW YORK, and that the seal affixed to the
foregoing instrument in writing is the corporate seal of said company, and that
said writing was signed and sealed by him in behalf of said corporation by its
authority duly given. And the said _________________ acknowledged the said
writing to be the act and deed of said corporation.
On the ____ day of _____, in the year 199_, before me personally came
________________, to me known, who, being by me duly sworn, did depose and say
that he resides in ________, ________; that he is an Assistant Vice President of
THE BANK OF NEW YORK, one of the corporations described in and which executed
the above instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that he signed his name
thereto by like order.
I, ______________, a Notary Public in and for the County aforesaid, do
hereby certify that X.X. XXXXXXXXXX personally appeared before me this day and
acknowledged the due execution by him as successor Individual Trustee of the
foregoing instrument.
On the ____ day of _____, 199_, before me personally came X.X. XXXXXXXXXX,
to me known to be the person described in and who executed the foregoing
instrument and acknowledged that he, as successor Individual Trustee, executed
the same.
WITNESS my hand and official seal this ____ day of _____, 199_.
......................................
--------------
NOTARY PUBLIC, State of New York
No. _______
Qualified in ______ County
Certificate filed in New York County
Commission Expires ___ __, 199_
00
XXXXX XX XXX XXXX )
) SS.:
COUNTY OF NEW YORK )
Personally appeared before me ______________________, who, being duly
sworn, says that she saw the corporate seal of THE BANK OF NEW YORK affixed to
the above written instrument and that she also saw _________________, an
Assistant Vice President, with _____________, an Assistant Secretary, of said
THE BANK OF NEW YORK, sign and attest the same, and that she, deponent, with
______________, witnessed the execution and delivery thereof as the act and deed
of said THE BANK OF NEW YORK.
Personally appeared before me ______________________, who, being duly
sworn, says that she saw the within named X.X. XXXXXXXXXX, as successor
Individual Trustee, sign, seal and as his act and deed deliver the foregoing
instrument for the purposes therein mentioned, and that she, deponent, with
______________, witnessed the execution thereof.
......................................
--------------
Sworn to before me this
____ day of _____, 199_
......................................
------------------
NOTARY PUBLIC, State of New York
No. _____
Qualified in ______ County
Certificate filed in New York County
Commission Expires ____________
