EXHIBIT 4(B)
COUNTERPART ___
OF 20 COUNTERPARTS
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CAROLINA POWER & LIGHT COMPANY
TO
THE BANK OF NEW YORK,
TRUSTEE
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FIRST SUPPLEMENTAL INDENTURE
DATED AS OF MARCH 1, 1999
TO
INDENTURE
(FOR SENIOR NOTES)
DATED AS OF MARCH 1, 1999
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SENIOR NOTES, 5.95% SERIES DUE MARCH 1, 2009
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of March 1, 1999, 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 000 Xxxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx Xxxxxxxx
00000-0000, and THE BANK OF NEW YORK, a banking corporation of the State of New
York, having its principal office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, 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"). Capitalized terms used but not defined herein shall have the
meanings given them in 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. 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, 5.95%
Series Due March 1, 2009 (herein called the "Senior Notes Due 2009"), the form
and substance of such Senior Notes Due 2009 and the terms, provisions, and
conditions thereof to be set forth as provided in the Indenture and this First
Supplemental Indenture.
C. All things necessary to make this First Supplemental Indenture a
valid agreement of the Company, and to make the Senior Notes Due 2009, when
executed by the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company, have been done.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Senior
Notes Due 2009 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 2009
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 2009,
as follows:
ARTICLE I
GENERAL TERMS AND CONDITIONS OF THE SENIOR NOTES DUE 2009
SECTION 101. There is hereby established a series of Notes designated
the "Senior Notes, 5.95% Series Due March 1, 2009," limited in the aggregate
principal amount of FOUR HUNDRED MILLION AND NO/100 DOLLARS ($400,000,000). Such
series of Notes 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 the Senior Notes Due 2009.
SECTION 102. The Senior Notes Due 2009 shall be issued in certificated
form, except that the Senior Notes Due 2009 shall be issued initially as a
Global Note to and registered in the name of a nominee of The Depository Trust
Company, as Depositary therefor. Any Senior Notes Due 2009 to be issued or
transferred to, or to be held by such nominee (or any successor thereof) for
such purpose shall bear the depositary legend in substantially the form set
forth at the top of the form of Senior Notes Due 2009 in Article III hereof,
unless otherwise agreed by the Company, such agreement to be confirmed in
writing to the Trustee. Such Global Note may be exchanged in whole or in part
for Senior Notes Due 2009 registered, and any transfer of such Global Note in
whole or in part may be registered, in the name or names of Persons other than
such Depositary or a nominee thereof as to which the Company shall agree, such
agreement to be confirmed in writing to the Trustee. Principal of, and premium,
if any, and interest on the Senior Notes Due 2009 will be payable, the transfer
of Senior Notes Due 2009 will be registrable and Senior Notes Due 2009 will be
exchangeable for Senior Notes Due 2009 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. The Senior Notes Due 2009
shall have the terms set forth in the form of the Senior Notes Due 2009 set
forth in Article III hereof.
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 2009, 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 15 basis points (.15%), plus in each case accrued interest on the
principal amount thereof to the Redemption Date (the "Redemption Price"), such
Redemption Price to be set forth in 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 2009 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 2009. "Independent Investment Banker" means Xxxxxxx
Xxxxx Barney 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.
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"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 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 Xxxxxxx Xxxxx Xxxxxx Inc.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, X.X. Xxxxxx Securities Inc.
and Chase 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 2009. 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 2009.
SECTION 104. The Company has issued pursuant to the Sixty-sixth
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, 5.95% Senior Note Series Due 2009." The 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 2009), interest payment dates, maturity and redemption
provisions, and have been issued in the same aggregate principal amount, as the
Senior Notes Due 2009.
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 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 First Supplemental Indenture, the Trustee
shall, upon written request of the Company and the receipt of the certificate of
the Expert described in
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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 Trustees for cancellation.
SECTION 106. The Senior Notes Due 2009 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 2009 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 2009 (together with, if the Company shall
so determine, any other Note or Debt of or guaranteed by the Company ranking
equally with, the Notes) 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
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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 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 2009 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 have 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 2009 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 2009 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
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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 2009 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 2009 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 2009 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
(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 2009 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 2009; PROVIDED, HOWEVER,
that any such retirement of Notes shall be in accordance with the terms and
provisions of the Indenture and the Notes; 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 First 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
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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.
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
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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, 5.95% SERIES DUE MARCH 1, 2009
SECTION 301. The Senior Notes Due 2009 and the Trustee's certificate of
authentication to be endorsed are to be substantially in the following forms:
Form of Face of Note.
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.
CAROLINA POWER & LIGHT COMPANY
Senior Notes, 5.95% Series Due March 1, 2009
No. ____ $___________
CUSIP No. ________
Carolina Power & Light Company, a corporation duly organized and
existing under the laws of the State of North Carolina (herein called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
___________, or registered assigns, the principal sum of _______________ Dollars
($_____) on March 1, 2009, and to pay interest thereon from March 5, 1999 or
from the most recent Interest Payment Date with respect to which interest has
been paid or duly provided for, semi-annually on
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March 1 and September 1 in each year (each an "Interest Payment Date"),
commencing September 1, 1999, at the rate of 5.95% 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 5.95% 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 the February 15 or August 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 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.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
CAROLINA POWER & LIGHT COMPANY
By ____________________________
Attest:
______________________________
Form of Reverse of Note.
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 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, limited in aggregate principal
amount to $400,000,000.
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 Xxxxxxxxx X. Xxxxxx (Xxxxxxx X. XxxXxxxx, 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
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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 15 basis points (.15%), plus in each case accrued interest on the
principal amount thereof to the Redemption Date (the "Redemption Price"), such
Redemption Price to be set forth in 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 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 Xxxxxxx Xxxxx Xxxxxx 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.
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"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 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 Xxxxxxx Xxxxx Barney
Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, X.X. Xxxxxx
Securities Inc. and Chase 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 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
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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
13
registered as the 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 which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Form of Trustee's 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 2009
SECTION 401. Senior Notes Due 2009 in the aggregate principal amount of
$400,000,000, may, upon execution of this First Supplemental Indenture, 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 Notes upon receipt of and in accordance with 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 2009.
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ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 601. Except as otherwise expressly provided in this First
Supplemental Indenture or in the form of Senior Notes Due 2009 or otherwise
clearly required by the context hereof or thereof, all terms used herein or in
said form of Senior Notes Due 2009 that are defined in the Indenture shall have
the several meanings respectively assigned to them thereby.
SECTION 602. The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
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 First 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 Seven of the Indenture shall apply to and form part of this
First 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
First 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.
15
IN WITNESS WHEREOF, the parties hereto have caused this First
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: /s/ Xxxx X. Xxxxxxx
-------------------------------------
[SEAL] Xxxx X. Xxxxxxx
Vice President and Treasurer
ATTEST:
/s/ Xxxxxxxx Xxxxxxxx-Xxxxxxx
---------------------------------
Xxxxxxxx Xxxxxxxx-Xxxxxxx
Assistant Secretary
(TRUSTEE'S SIGNATURE PAGE FOLLOWS)
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TRUSTEE'S SIGNATURE PAGE
FIRST SUPPLEMENTAL INDENTURE, DATED AS OF MARCH 1, 1999, TO
INDENTURE (FOR SENIOR NOTES), DATED AS OF MARCH 1, 1999
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxx Xxxx Xxxxxxxxx
------------------------------
[SEAL] Xxxx Xxxx Xxxxxxxxx
Vice President
ATTEST:
/s/ Xxxxx X. Hack
---------------------------------
Xxxxx X. Hack
Assistant Secretary
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