EXHIBIT 4(B)
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CAROLINA POWER & LIGHT COMPANY
TO
THE BANK OF NEW YORK
(FORMERLY IRVING TRUST COMPANY)
AND
▇.▇. ▇▇▇▇▇▇▇▇▇▇
(SUCCESSOR TO ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇.▇. ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇,
G. ▇▇▇▇▇, ▇.▇. MAY, ▇.▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ AND ▇▇▇▇▇ ▇▇▇▇)
AS TRUSTEES UNDER CAROLINA POWER & LIGHT
COMPANY'S MORTGAGE AND DEED OF TRUST, DATED
AS OF MAY 1, 1940
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SIXTY-FIFTH SUPPLEMENTAL INDENTURE
PROVIDING AMONG OTHER THINGS FOR
CERTAIN AMENDMENTS TO THE MORTGAGE
DATED AS OF APRIL 1, 1998
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SIXTY-FIFTH SUPPLEMENTAL INDENTURE
INDENTURE, dated as of April 1, 1998, by and between CAROLINA POWER &
LIGHT COMPANY, a corporation of the State of North Carolina, whose post office
address is ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(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 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter sometimes
called the Corporate Trustee), and ▇.▇. ▇▇▇▇▇▇▇▇▇▇ (successor to ▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇.▇. ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇, G. ▇▇▇▇▇, ▇.▇. May, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇), whose post office address is ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (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 ▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ to secure the payment of bonds issued or to be issued under and in
accordance with the provisions of the Mortgage, reference to which Mortgage is
hereby made, this Indenture (hereinafter sometimes called the Sixty-fifth
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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ as Individual Trustee in succession to said
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (deceased) under the Mortgage, and by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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 ▇.▇. ▇▇▇▇▇▇ as Individual Trustee in succession to said
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (resigned) under the Mortgage, and by ▇.▇. ▇▇▇▇▇▇ 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 ▇.▇. ▇▇▇▇▇▇ as Individual Trustee in succession to said ▇.▇.
▇▇▇▇▇▇ (resigned) under the Mortgage, and by ▇.▇. ▇▇▇▇▇▇ 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 ▇. ▇▇▇▇▇ as Individual Trustee in
succession to said ▇.▇. ▇▇▇▇▇▇ (resigned), and ▇. ▇▇▇▇▇ 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 ▇. ▇▇▇▇▇ (resigned), and D.W. May accepted said appointment;
and
WHEREAS, by the Thirty-fifth Supplemental Indenture mentioned below, the
Company, among other things, appointed ▇.▇. ▇▇▇▇▇▇▇ as Individual Trustee in
succession to said D.W. May (resigned), and ▇.▇. ▇▇▇▇▇▇▇ accepted said
appointment; and
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WHEREAS, an instrument, dated as of June 27, 1988, was executed by the
Company appointing ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as Individual Trustee in succession to said
▇.▇. ▇▇▇▇▇▇▇ (resigned) under the Mortgage, and by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 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 ▇▇▇▇▇ ▇▇▇▇ as Individual Trustee in
succession to said ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (resigned), and ▇▇▇▇▇ ▇▇▇▇ accepted said
appointment; and
WHEREAS, by the Forty-ninth Supplemental Indenture mentioned below, the
Company, among other things, appointed ▇.▇. ▇▇▇▇▇▇▇▇▇▇ as Individual Trustee in
succession to said ▇▇▇▇▇ ▇▇▇▇ (resigned), and ▇.▇. ▇▇▇▇▇▇▇▇▇▇ 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 Ninth Supplemental Indenture mentioned below, the Company,
among other things, reserved the right to amend the Mortgage, as supplemented,
without any consent or other action by the holders of the bonds of the Tenth
Series or any subsequent series issued under the Mortgage, so as to eliminate
Section 64 of the Mortgage, as supplemented; and
WHEREAS, by the Tenth Supplemental Indenture mentioned below, the Company,
among other things, reserved the right, without any consent or other action by
the holders of the bonds of the Eleventh Series or any subsequent series issued
under the Mortgage, to make certain amendments to the Mortgage as shall be
necessary in order to terminate thereafter certain requirements of Section 39 of
the Mortgage, as supplemented; 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:
3
DESIGNATION DATED AS OF
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First Supplemental Indenture.................... January 1, 1949
Second Supplemental Indenture................... December 1, 1949
Third Supplemental Indenture.................... February 1, 1951
Fourth Supplemental Indenture................... October 1, 1952
Fifth Supplemental Indenture.................... March 1, 1958
Sixth Supplemental Indenture.................... April 1, 1960
Seventh Supplemental Indenture.................. November 1, 1961
Eighth Supplemental Indenture................... July 1, 1964
Ninth Supplemental Indenture.................... April 1, 1966
Tenth Supplemental Indenture.................... October 1, 1967
Eleventh Supplemental Indenture................. October 1, 1968
Twelfth Supplemental Indenture.................. January 1, 1970
Thirteenth Supplemental Indenture............... August 1, 1970
Fourteenth Supplemental Indenture............... January 1, 1971
Fifteenth Supplemental Indenture................ October 1, 1971
Sixteenth Supplemental Indenture................ May 1, 1972
Seventeenth Supplemental Indenture.............. May 1, 1973
Eighteenth Supplemental Indenture............... November 1, 1973
Nineteenth Supplemental Indenture............... May 1, 1974
Twentieth Supplemental Indenture................ December 1, 1974
Twenty-first Supplemental Indenture............. April 15, 1975
Twenty-second Supplemental Indenture............ October 1, 1977
Twenty-third Supplemental Indenture............. June 1, 1978
Twenty-fourth Supplemental Indenture............ May 15, 1979
Twenty-fifth Supplemental Indenture............. November 1, 1979
Twenty-sixth Supplemental Indenture............. November 1, 1979
Twenty-seventh Supplemental Indenture........... April 1, 1980
Twenty-eighth Supplemental Indenture............ October 1, 1980
Twenty-ninth Supplemental Indenture............. October 1, 1980
Thirtieth Supplemental Indenture................ December 1, 1982
Thirty-first Supplemental Indenture............. March 15, 1983
Thirty-second Supplemental Indenture............ March 15, 1983
Thirty-third Supplemental Indenture............. December 1, 1983
Thirty-fourth Supplemental Indenture............ December 15, 1983
Thirty-fifth Supplemental Indenture............. April 1, 1984
Thirty-sixth Supplemental Indenture............. June 1, 1984
Thirty-seventh Supplemental Indenture........... June 1, 1984
Thirty-eighth Supplemental Indenture............ June 1, 1984
Thirty-ninth Supplemental Indenture............. April 1, 1985
Fortieth Supplemental Indenture................. October 1, 1985
Forty-first Supplemental Indenture.............. March 1, 1986
Forty-second Supplemental Indenture............. July 1, 1986
Forty-third Supplemental Indenture.............. January 1, 1987
Forty-fourth Supplemental Indenture............. December 1, 1987
Forty-fifth Supplemental Indenture.............. September 1, 1988
Forty-sixth Supplemental Indenture.............. April 1, 1989
Forty-seventh Supplemental Indenture............ August 1, 1989
Forty-eighth Supplemental Indenture............. November 15, 1990
Forty-ninth Supplemental Indenture.............. November 15, 1990
4
DESIGNATION DATED AS OF
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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
which supplemental indentures were recorded in various Counties in the States of
North Carolina and South Carolina, and were indexed and cross-indexed in the
real and chattel mortgage or security interest records in various Counties in
the States of North Carolina and South Carolina; and
WHEREAS, the Mortgage and said First through Sixty-fourth Supplemental
Indentures were recorded in all Counties in the States of North Carolina and
South Carolina in which by the respective terms of the Mortgage, each was to be
recorded; and
WHEREAS, because no recording of this Sixty-fifth Supplemental Indenture
is required by law in order to fully preserve and protect the security of the
bondholders and all rights of the Trustees, this Sixty-fifth Supplemental
Indenture will not be recorded or filed; and
WHEREAS, the Company has heretofore issued, in accordance with the
provisions of the Mortgage, as supplemented, the following series of First
Mortgage Bonds:
PRINCIPAL PRINCIPAL
AMOUNT AMOUNT
SERIES ISSUED OUTSTANDING
------ ------ -----------
3-3/4% Series due 1965...................$ 46,000,000 None
3-1/8% Series due 1979.....................20,100,000 None
3-1/4% Series due 1979.....................43,930,000 None
2-7/8% Series due 1981.....................15,000,000 None
3-1/2% Series due 1982.....................20,000,000 None
4-1/8% Series due 1988.....................20,000,000 None
4-7/8% Series due 1990.....................25,000,000 None
4-1/2% Series due 1991.....................25,000,000 None
4-1/2% Series due 1994.....................30,000,000 None
5-1/8% Series due 1996.....................30,000,000 None
6-3/8% Series due 1997.....................40,000,000 None
6-7/8% Series due 1998.....................40,000,000 40,000,000
8-3/4% Series due 2000.....................40,000,000 None
8-3/4% Series due August 1, 2000...........50,000,000 None
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PRINCIPAL PRINCIPAL
AMOUNT AMOUNT
SERIES ISSUED OUTSTANDING
------ ------ -----------
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
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.............100,000,000 100,000,000
6
PRINCIPAL PRINCIPAL
AMOUNT AMOUNT
SERIES ISSUED OUTSTANDING
------ ------ -----------
Secured Medium-Term Notes, Series C........200,000,000 65,000,000
6-7/8% Series due August 15, 2023..........100,000,000 100,000,000
5-7/8% Series due January 15, 2004.........150,000,000 150,000,000
Pollution Control Series L................. 72,600,000 72,600,000
Pollution Control Series M................. 50,000,000 50,000,000
6.80% Series due August 15, 2007...........200,000,000 200,000,000
which bonds are also hereinafter sometimes called bonds of the First through
Sixty-eighth Series, respectively; 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 alter and amend in certain respects
the covenants and provisions contained in the Mortgage, as heretofore
supplemented; and
WHEREAS, the execution and delivery by the Company of this Sixty-fifth
Supplemental Indenture has 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 ▇.▇. ▇▇▇▇▇▇▇▇▇▇, 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
7
dams, power houses, power sites, buildings, generators, reservoirs, pipe
lines, flumes, structures and works; all substations, transformers,
switchboards, towers, poles, wires, insulators, and other appliances and
equipment, and the Company's rights or interests in the land upon which
the same are situated, and all other property, real or personal, forming a
part of or appertaining to, or used, occupied or enjoyed in connection
with said generating plants, stations, transmission lines, and
distribution systems; together with all rights of way, easements, permits,
privileges, franchises and rights for or related to the construction,
maintenance, or operation thereof, through, over, under or upon any public
streets or highways, or the public lands of the United States, or of any
State or other lands; and all water appropriations and water rights,
permits and privileges; including all property, real, personal, and mixed,
acquired by the Company after the date of the execution and delivery of
the Mortgage, in addition to property covered by the above-mentioned
supplemental indentures (except any herein or in the Mortgage, as
heretofore supplemented, expressly excepted), now owned or, subject to the
provisions of Section 87 of the Mortgage, hereafter acquired by the
Company and wheresoever situated, including (without in anywise limiting
or impairing by the enumeration of the same the scope and intent of the
foregoing or of any general description contained in this Sixty-fifth
Supplemental Indenture) all lands, power sites, flowage rights, water
rights, flumes, raceways, dams, rights of way and roads; all steam and
power houses, gas plants, street lighting systems, standards and other
equipment incidental thereto, telephone, radio and television systems,
air-conditioning systems and equipment incidental thereto, water works,
steam heat and hot water plants, lines, service and supply systems,
bridges, culverts, tracts, ice or refrigeration plants and equipment,
street and interurban railway systems, offices, buildings and other
structures and the equipment thereof; all machinery, engines, boilers,
dynamos, electric and gas machines, regulators, meters, transformers,
generators, motors, electrical, gas and mechanical appliances, conduits,
cables, water, steam heat, gas or other pipes, gas mains and pipes,
service pipes, fittings, valves and connections, pole and transmission
lines, wires, cables, tools, implements, apparatus, furniture, chattels
and choses in action; all municipal and other franchises, consents or
permits; all lines for the transmission and distribution of electric
current, gas, steam heat or water for any purpose including poles, wires,
cables, pipes, conduits, ducts and all apparatus for use in connection
therewith; all real estate, lands, easements, servitudes, licenses,
permits, franchises, privileges, rights of way and other rights in or
relating to real estate or the occupancy of the same and (except as herein
or in the Mortgage, as heretofore supplemented, expressly excepted) all
the right, title and interest of the Company in and to all other property
of any kind or nature appertaining to and/or used and/or occupied and/or
enjoyed in connection with any property hereinbefore or in the Mortgage,
as heretofore supplemented, described.
TOGETHER WITH all and singular the tenements, hereditaments and
appurtenances belonging or in anywise appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder and remainders
and (subject to the provisions of Section 57 of the Mortgage) the tolls, rents,
revenues, issues, earnings, income, product and profits thereof, and all the
estate, right, title and interest and claim whatsoever, at law as well as in
equity, which the Company now has or may hereafter acquire in and to the
aforesaid property and franchises and every part and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the provisions of
Section 87 of the Mortgage, all the property, rights and franchises acquired by
the Company after the date hereof (except any herein or in the Mortgage, as
heretofore supplemented, expressly excepted) shall be and are as fully granted
and conveyed hereby and as fully embraced within the lien hereof and the lien of
the Mortgage as if such property, rights and franchises were now owned by the
Company and were specifically described herein and conveyed hereby.
8
PROVIDED THAT the following are not and are not intended to be now or
hereafter granted, bargained, sold, released, conveyed, assigned, transferred,
mortgaged, pledged, set over or confirmed hereunder and are hereby expressly
excepted from the lien and operation of this Sixty-fifth Supplemental Indenture
and from the lien and operation of the Mortgage, namely: (1) cash, shares of
stock and obligations (including bonds, notes and other securities) not
hereafter specifically pledged, paid, deposited or delivered under the Mortgage
or covenanted so to be; (2) merchandise, equipment, materials or supplies held
for the purpose of sale in the usual course of business and fuel, oil and
similar materials and supplies consumable in the operation of any properties of
the Company; rolling stock, buses, motor coaches, vehicles and automobiles; (3)
bills, notes and accounts receivable, and all contracts, leases and operating
agreements not specifically pledged under the Mortgage, as heretofore
supplemented, or this Sixty-fifth Supplemental Indenture or covenanted so to be;
(4) electric energy and other materials or products generated, manufactured,
produced or purchased by the Company for sale, distribution or use in the
ordinary course of its business; and (5) any property and rights heretofore
released from the lien of the Mortgage; provided, however, that the property and
rights expressly excepted from the lien and operation of the Mortgage and this
Sixty-fifth Supplemental Indenture in the above subdivisions (2) and (3) shall
(to the extent permitted by law) cease to be so excepted in the event and as of
the date that either or both of the Trustees or a receiver or trustee shall
enter upon and take possession of the Mortgaged and Pledged Property in the
manner provided in Article XII of the Mortgage by reason of the occurrence of a
Default as defined in said Article XII.
TO HAVE AND TO HOLD all such properties, real, personal and mixed,
granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged,
pledged, set over or confirmed by the Company as aforesaid, or intended so to
be, unto the Trustees, their successors and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the same terms,
trusts and conditions and subject to and with the same provisos and covenants as
are set forth in the Mortgage, as heretofore supplemented, this Sixty-fifth
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:
9
ARTICLE I
AMENDMENTS TO CERTAIN PROVISIONS OF THE MORTGAGE
SECTION 1. Pursuant to the reservation of right in Section 6 of the Ninth
Supplemental Indenture, and all bonds issued prior to the Ninth Supplemental
Indenture having been retired, the Mortgage is hereby amended so as to eliminate
the requirements of Section 64 of the Mortgage, as supplemented.
SECTION 2. Pursuant to the reservation of right in Section 5 of the Tenth
Supplemental Indenture, and all bonds issued prior to the Tenth Supplemental
Indenture having been retired, the Mortgage is hereby amended so as to terminate
the requirements of Section 39 of the Mortgage that the Company deliver to the
Corporate Trustee as an improvement fund for the bonds Outstanding under the
Mortgage annually amounts as to each series in cash and/or principal amount of
bonds of such series equivalent to one-half (1/2) of one per centum (1%) of the
greatest principal amount of bonds of such series prior to January 1 of such
year at any one time Outstanding.
ARTICLE II
MISCELLANEOUS PROVISIONS
SECTION 3. Subject to the amendments provided for in this Sixty-fifth
Supplemental Indenture, the terms defined in the Mortgage, as heretofore
supplemented, shall, for all purposes of this Sixty-fifth Supplemental
Indenture, have the meanings specified in the Mortgage, as heretofore
supplemented.
SECTION 4. The Trustees hereby accept the trusts herein declared,
provided, created or supplemented and agree to perform the same upon the terms
and conditions herein and in the Mortgage, as heretofore supplemented, set forth
and upon the following terms and conditions:
The Trustees shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Sixty-fifth Supplemental
Indenture or for or in respect of the recitals contained herein, all of
which recitals are made by the Company solely. In general each and every
term and condition contained in Article XVI of the Mortgage shall apply to
and form part of this Sixty-fifth Supplemental Indenture with the same
force and effect as if the same were herein set forth in full with such
omissions, variations and insertions, if any, as may be appropriate to
make the same conform to the provisions of this Sixty-fifth Supplemental
Indenture.
SECTION 5. Subject to the provisions of Article XV and Article XVI of the
Mortgage, whenever in this Sixty-fifth Supplemental Indenture either of the
parties hereto is named or referred to, this shall be deemed to include the
successors or assigns of such party, and all the covenants and agreements in
this Sixty-fifth Supplemental Indenture contained by or on behalf of the Company
or by or on behalf of the Trustees shall bind and inure to the benefit of the
respective successors and assigns of such parties whether so expressed or not.
SECTION 6. Nothing in this Sixty-fifth Supplemental Indenture, expressed
or implied, is intended, or shall be construed, to confer upon, or to give to,
any person, firm or corporation, other than the parties hereto and the holders
of the Outstanding bonds and coupons, any right, remedy or claim under or by
reason of this Sixty-fifth Supplemental Indenture or any covenant, condition,
stipulation, promise or agreement hereof, and all the covenants, conditions,
stipulations, promises and
10
agreements in this Sixty-fifth Supplemental Indenture contained by or on behalf
of the Company shall be for the sole and exclusive benefit of the parties
hereto, and of the holders of the Outstanding bonds and coupons.
SECTION 7. This Sixty-fifth 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.
11
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 ▇.▇.
▇▇▇▇▇▇▇▇▇▇ has hereunto set his hand and affixed his seal, all as of the day and
year first above written.
CAROLINA POWER & LIGHT COMPANY
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By.............................................
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President and Treasurer
Attest:
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
By................................................
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇, Assistant Secretary
Executed, sealed and delivered by
CAROLINA POWER & LIGHT
COMPANY in the presence of:
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
.................................
▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
.................................
▇▇▇▇ ▇. ▇▇▇▇▇▇
12
THE BANK OF NEW YORK, as Trustee
/s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By ...................................
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice President
Attest:
/s/ ▇▇▇▇▇ ▇. Hack
By ..................................
▇▇▇▇▇ ▇. Hack, Assistant Secretary
/s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇
............................. (L.S.)
▇.▇. ▇▇▇▇▇▇▇▇▇▇
Executed, sealed and delivered
by THE BANK OF NEW YORK
and ▇.▇. ▇▇▇▇▇▇▇▇▇▇
in the presence of:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
.................................
▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
.................................
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
13
STATE OF NORTH CAROLINA )
) SS.:
COUNTY OF WAKE )
This 1st day of April, A.D. 1998, personally came before me, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, a Notary Public in and for the County aforesaid, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, who,
being by me duly sworn, says that he is the Vice President and Treasurer of
CAROLINA POWER & LIGHT COMPANY, and that the seal affixed to the foregoing
instrument in writing is the corporate seal of said company, and that said
writing was signed and sealed by him in behalf of said corporation by its
authority duly given. And the said ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ acknowledged the said writing
to be the act and deed of said corporation.
On the 1st day of April, in the year of 1998, before me personally came
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say
that he resides at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, State of
North Carolina; that he is the Vice President and Treasurer of CAROLINA POWER &
LIGHT COMPANY, one of the corporations described in and which executed the above
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation, and that he signed his name thereto by
like order.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
.......................................
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
NOTARY PUBLIC, State of North Carolina
Wake County
My Commission Expires: October 9, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
) 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 Vice
President and Treasurer, 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.
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
.......................................
▇▇▇ ▇. ▇▇▇▇▇▇▇
Sworn to before me this
1st day of April, 1998
.......................................
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
NOTARY PUBLIC, State of North Carolina
Wake County
My Commission Expires: October 9, ▇▇▇▇
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) SS.:
COUNTY OF NEW YORK )
This 2nd day of April, A.D. 1998, personally came before me, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, a Notary Public in and for the County aforesaid, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
who, being by me duly sworn, says that she is a Vice President of THE BANK OF
NEW YORK, and that the seal affixed to the foregoing instrument in writing is
the corporate seal of said company, and that said writing was signed and sealed
by 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 2nd day of April, in the year 1998, before me personally came ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say
that she resides in Shark River Hills, New Jersey, that she is a Vice President
of THE BANK OF NEW YORK, one of the corporations described in and which executed
the above instrument; that she knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that she signed her
name thereto by like order.
I, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, a Notary Public in and for the County aforesaid, do
hereby certify that ▇.▇. ▇▇▇▇▇▇▇▇▇▇ personally appeared before me this day and
acknowledged the due execution by him as successor Individual Trustee of the
foregoing instrument.
On the 2nd day of April, 1998, before me personally came ▇.▇. ▇▇▇▇▇▇▇▇▇▇,
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 2nd day of April, 1998.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
.......................................
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
NOTARY PUBLIC, State of New York
No. 010A5027729
Qualified in Bronx County
Certificate filed in New York County
Commission Expires May 18, 1998
15
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
Personally appeared before me ▇▇▇▇▇▇▇ ▇▇▇▇▇, who, being duly sworn, says
that she saw the corporate seal of THE BANK OF NEW YORK affixed to the above
written instrument and that she also saw ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, a Vice President,
with ▇▇▇▇▇ ▇. Hack, 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 ▇.▇. ▇▇▇▇▇▇▇▇▇▇, 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.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
.......................................
▇▇▇▇▇▇▇ ▇▇▇▇▇
Sworn to before me this
2nd day of April, 1998
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
.....................................
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
NOTARY PUBLIC, State of New York
No. 010A5027729
Qualified in Bronx County
Certificate filed in New York County
Commission Expires May 18, 1998
