FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934
Date of Report (Date of earliest event reported): April 13, 1995
CAROLINA POWER & LIGHT COMPANY
(Exact name of registrant as specified in its charter)
North Carolina 1-3382 56-0165465
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
411 Fayetteville Street, Raleigh, North Carolina 27601-1748
(Address of principal executive offices, including zip code)
Registrant's telephone number, including area code: (919)546-6111
Item 7. Financial Statements and Exhibits.
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(C) Exhibits
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1 Underwriting Agreement, dated as of April 13,
1995.
4(a) Carolina Power & Light Company (the "Company")
resolutions adopted by the Board of Directors
of the Company at a meeting held on March 15, 1995,
with respect to the Company's issuance of
$250,000,000 combined principal amount of one or
more series of the Company's First Mortgage Bonds
and/or Other Debt Securities.
4(b) Carolina Power & Light Company (the "Company")
resolutions adopted by the Executive Committee of
the Board of Directors of the Company at a
meeting held on April 13, 1995, establishing the
terms of the 8.55% Quarterly Income Capital Securities
(Series A Subordinated Deferrable Interest Debentures)
(the "Debentures").
4(c) Indenture, dated as of March 1, 1995, between the
Company and Bankers Trust Company, as trustee,
with respect to Unsecured Subordinated Debt
Securities.
4(d) Specimen of the Debentures.
8 Tax Opinion of Reid & Priest LLP, dated April 13,
1995.
23 Consent of Reid & Priest LLP, dated April 13,
1995.
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
CAROLINA POWER & LIGHT COMPANY
(Registrant)
/s/ Charles D. Barham, Jr.
By: --------------------------
Name: Charles D. Barham, Jr.
Date: April 13, 1995 Title: Executive Vice President
EXHIBIT INDEX
EXHIBIT PAGE
------- ----
1 Underwriting Agreement, dated as of
April 13, 1995.
4(a) Carolina Power & Light Company (the
"Company"), resolutions adopted by the
Board of Directors of the Company at a meeting
held on March 15, 1995, with respect to the
Company's issuance of $250,000,000
combined principal amount of one or
more series of the Company's First
Mortgage Bonds and/or Other Debt
Securities.
4(b) Carolina Power & Light Company (the
"Company") resolutions adopted by the
Executive Committee of the Board of Directors
of the Company at a meeting held on April 13,
1995, establishing the terms of the 8.55%
Quarterly Income Capital Securities (Series
A Subordinated Deferrable Interest Debtentures)
(the "Debentures").
4(c) Indenture, dated as of March 1, 1995,
between the Company and Bankers Trust
Company, as trustee, with respect to
Unsecured Subordinated Debt Securities.
4(d) Specimen of the Debentures.
8 Tax Opinion of Reid & Priest LLP,
dated April 13, 1995.
23 Consent of Reid & Priest LLP, dated
April 13, 1995.
EXHIBIT 1
CAROLINA POWER & LIGHT COMPANY
Debt Securities
UNDERWRITING AGREEMENT
----------------------
April 13, 1995
To the Representative named in Schedule I hereto
of the Underwriters named in Schedule II hereto
Dear Sirs:
The undersigned Carolina Power & Light Company (the
"Company") hereby confirms its agreement with each of the several
Underwriters hereinafter named as follows:
1. Underwriters and Representative. The term "Un-
-------------------------------
derwriters" as used herein shall be deemed to mean the firm or
corporation or the several firms or corporations named in
Schedule II hereto and any underwriter substituted as provided in
paragraph 6 and the term "Underwriter" shall be deemed to mean
one of such Underwriters. If the firm or firms listed in
Schedule I hereto (the "Representative") are the same as the firm
or firms listed in Schedule II hereto, then the terms
"Underwriters" and "Representative", as used herein, shall each
be deemed to refer to such firm or firms. The Representative
represents that it has been authorized by the Underwriters to
execute this Agreement on their behalf and to act for them in the
manner herein provided. All obligations of the Underwriters
hereunder are several and not joint. If more than one firm is
named in Schedule I hereto, any action under or in respect of
this Agreement may be taken by such firms jointly as the
Representative or by one of the firms acting on behalf of the
Representative and such action will be binding upon all the
Underwriters.
2. Description of Securities. The Company proposes to
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issue and sell its unsecured debentures, notes or other evidences
of indebtedness of the designation, with the terms and in the
amount specified in Schedule I hereto (the "Securities"), under
its Indenture, dated as of March 1, 1995, with Bankers Trust
Company, as Trustee, as it will be further supplemented by a
Supplemental Indenture, resolution of the Board of Directors of
the Company or certificate of an officer of the Company relating
to the Securities (any such Supplemental Indenture, resolution or
certificate hereinafter referred to as the "Supplemental
Indenture"), in substantially the forms heretofore delivered to
the Representative, said Indenture as to be supplemented by the
Supplemental Indenture being hereinafter referred to as the
"Indenture".
3. Representations and Warranties of the Company. The
---------------------------------------------
Company represents and warrants to each of the Underwriters that:
(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3 (No. 33-57835), including a prospectus
("registration statement No. 33-57835"), for the
registration of the Securities under the Securities Act of
1933, as amended (the "Securities Act"), and the
qualification of the Indenture under the Trust Indenture Act
of 1939, as amended (the "1939 Act"). Registration
statement No. 33-57835 has been declared effective by the
Commission and the Indenture has been qualified under the
1939 Act. Registration statement No. 33-57835, as amended
to the date hereof, and the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Securities Act (the "Incorporated Documents") are
hereinafter referred to as the "Registration Statement".
The prospectus forming a part of registration statement No.
33-57835, as it is to be supplemented by a prospectus
supplement, dated on or about the date hereof, relating to
the Securities, and all prior amendments or supplements
thereto (other than amendments or supplements relating to
securities of the Company other than the Securities),
including the Incorporated Documents, is hereinafter
referred to as the "Prospectus". Any reference herein to
the terms "amend", "amendment" or "supplement" with respect
to the Registration Statement or the Prospectus shall be
deemed to refer to and include the filing of any document
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), deemed to be incorporated therein after the
date hereof and prior to the termination of the offering of
the Securities by the Underwriters and any references herein
to the terms "Registration Statement" or "Prospectus" at a
date after the date hereof shall be deemed to refer to the
Registration Statement or the Prospectus, as the case may
be, as each may be amended or supplemented to such date.
(b) Prior to the termination of the offering of the
Securities, the Company will not file any amendment to the
Registration Statement or supplement to the Prospectus which
shall not have previously been furnished to the
Representative or of which the Representative shall not
previously have been advised or to which the Representative
shall reasonably object in writing and which has not been
approved by Winthrop, Stimson, Putnam & Roberts, who are
acting as counsel on behalf of the Underwriters.
(c) The Registration Statement, at the time and date
it was declared effective by the Commission, complied and
the Registration Statement, the Prospectus and the
Indenture, at the date the Prospectus is filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 under the Securities Act ("Rule 424") and at the Closing
Date, will comply in all material respects, with the
applicable provisions of the Securities Act and the 1939 Act
and the applicable rules and regulations of the Commission
thereunder; the Registration Statement, at the time and date
it was declared effective by the Commission, did not contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading; and the
Prospectus, at the date it is filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 and at the
Closing Date, did not and will not contain an untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made,
not misleading; provided, however, that the foregoing
representations and warranties in this subparagraph (c)
shall not apply to statements or omissions made in reliance
upon and in conformity with information furnished herein or
in writing to the Company by the Representative or by or on
behalf of any Underwriter through the Representative
expressly for use in the Registration Statement or the
Prospectus or to any statements in or omissions from the
Statements of Eligibility (Forms T-1 and T-2) of the
Trustees under the Company's First Mortgage Bond Mortgage
and the Trustee under the Indenture. The Incorporated
Documents, when they were filed with the Commission,
complied in all material respects with the applicable
requirements of the Exchange Act and the rules and
regulations of the Commission thereunder, and any documents
so filed and incorporated by reference subsequent to the
date hereof and prior to the termination of the offering of
the Securities by the Underwriters will, when they are filed
with the Commission, comply in all material respects with
the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder; and, when read
together with the Registration Statement and the Prospectus,
none of such documents included or includes or will include
any untrue statement of a material fact or omitted or omits
or will omit to state any material fact required to be
stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were
made, not misleading.
(d) The financial statements incorporated by reference
in the Registration Statement present fairly the financial
condition and operations of the Company at the respective
dates or for the respective periods to which they apply;
such financial statements have been prepared in each case in
accordance with generally accepted accounting principles
consistently applied throughout the periods involved; and
Deloitte & Touche LLP, who have audited certain of the
financial statements, are independent public or independent
certified public accountants as required by the Securities
Act or the Exchange Act and the rules and regulations of the
Commission thereunder.
(e) Except as reflected in, or contemplated by, the
Registration Statement and the Prospectus, since the
respective dates as of which information is given in the
Registration Statement and Prospectus, and prior to the
Closing Date, there has not been any material adverse change
in the business, property or financial condition of the
Company and since such dates and prior to the Closing Date,
there has not been any material transaction entered into by
the Company other than transactions contemplated by the
Registration Statement and Prospectus and transactions in
the ordinary course of business. The Company has no
material contingent obligation which is not disclosed in the
Registration Statement and Prospectus.
(f) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof on the
part of the Company to be fulfilled have been duly
authorized by all necessary corporate action of the Company
in accordance with the provisions of its charter (the
"Charter"), by-laws and applicable law, and the Securities,
when issued and delivered as provided herein, will
constitute legal, valid and binding obligations of the
Company in accordance with their terms except as limited by
bankruptcy, insolvency or other laws affecting mortgagees'
and other creditors' rights and general equitable
principles.
(g) The consummation of the transaction herein
contemplated and the fulfillment of the terms hereof will
not result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed
of trust or other agreement or instrument to which the
Company is now a party.
(h) The summary of the terms of the Securities
contained in the Registration Statement and Prospectus
fairly describes the provisions thereof required to be
described by the registration statement form.
4. Purchase and Sale. On the basis of the represen-
-----------------
tations, warranties and covenants herein contained, but subject
to the terms and conditions herein set forth, the Company agrees
to sell to each of the Underwriters, severally and not jointly,
and each such Underwriter agrees, severally and not jointly, to
purchase from the Company, the respective principal amount of
Securities set forth opposite the name of such Underwriter in
Schedule II hereto at the purchase price set forth in Schedule I
hereto.
5. Reoffering by Underwriters. The Underwriters agree to
--------------------------
make promptly a bona fide public offering of the Securities to
the public for sale as set forth in the Prospectus, subject,
however, to the terms and conditions of this Agreement.
6. Time and Place of Closing; Default of Underwriters.
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(a) Payment for the Securities shall be made at the
place, time and date specified in Schedule I hereto against
delivery of the Securities at the offices of Bankers Trust
Company, Four Albany Street, Fourth Floor, New York, New
York (Attention: Scott Thiel), or such other place, time
and date as the Representative and the Company may agree.
The hour and date of such delivery and payment are herein
called the "Closing Date". Payment for the Securities shall
be by certified or official bank check or checks in New York
Clearing House or similar next day funds against delivery to
the Representative for the respective accounts of the
Underwriters of certificates for the Securities to be
purchased by them. Certificates for the Securities shall be
delivered to the Representative for the respective accounts
of the Underwriters in such names and denominations as the
Representative shall specify not later than the close of
business on the third full business day before the Closing
Date. For the purpose of expediting the checking of the
certificates by the Representative, the Company agrees to
make the Securities available to the Representative not
later than 10 A.M., on the last full business day prior to
the Closing Date at said office of Bankers Trust Company.
(b) If one or more of the Underwriters shall, for any
reason permitted hereunder, cancel its obligation to
purchase hereunder and to take up and pay for the principal
amount of the Securities to be purchased by such one or more
Underwriters, the Company shall immediately notify the
Representative, and the remaining Underwriters shall have
the right, within 24 hours of receipt of such notice, either
to take up and pay for (in such proportion as may be agreed
upon among them) or to substitute another Underwriter or
Underwriters, satisfactory to the Company, to take up and
pay for the principal amount of the Securities which such
one or more Underwriters did not purchase. If one or more
Underwriters shall, for any reason other than a reason
permitted hereunder, fail to take up and pay for the
principal amount of the Securities to be purchased my such
one or more Underwriters, the Company shall immediately
notify the Representative, and the remaining Underwriters
shall be obligated to take up and pay for (in addition to
the respective principal amount of the Securities set forth
opposite their respective names in Schedule II hereto) the
principal amount of the Securities which such defaulting
Underwriter or Underwriters failed to take up and pay for,
up to a principal amount thereof equal to, in the case of
each such remaining Underwriter, ten percent (10%) of the
principal amount of the Securities set forth opposite the
name of such remaining Underwriter in said Schedule II, and
such remaining Underwriters shall have the right, within 24
hours of receipt of such notice, either to take up and pay
for (in such proportion as may be agreed upon among them),
or to substitute another Underwriter or Underwriters,
satisfactory to the Company, to take up and pay for, the
remaining principal amount of the Securities which the
defaulting Underwriter or Underwriters agreed but failed to
purchase. If any unpurchased Securities still remain, then
the Company or the Representative shall be entitled to an
additional period of 24 hours within which to procure
another party or parties, members of the National
Association of Securities Dealers, Inc. (or if not members
of such Association, who are not eligible for membership in
said Association and who agree (i) to make no sales within
the United States, its territories or its possessions or to
persons who are citizens thereof or residents therein and
(ii) in making sales to comply with said Association's Rules
of Fair Practice) and satisfactory to the Company, to
purchase or agree to purchase such unpurchased Securities on
the terms herein set forth. In any such case either the
Representative or the Company shall have the right to
postpone the Closing Date for a period not to exceed three
full business days from the date agreed upon in accordance
with this paragraph 6, in order that the necessary changes
in the Registration Statement and Prospectus and any other
documents and arrangements may be effected. If the
Representative and the Company shall fail to procure a
satisfactory party or parties as above provided to purchase
or agree to purchase such unpurchased Securities, then the
Company may either (i) require the remaining Underwriters to
purchase the principal amount of Securities which they are
obligated to purchase hereunder or (ii) terminate this
Agreement by giving prompt notice to the Representative. In
the event that neither the non-defaulting Underwriters nor
the Company has arranged for the purchase of such
unpurchased Securities by another party or parties as above
provided and the Company has not elected to require the
non-defaulting Underwriters to purchase the principal amount
of Securities which they are obligated to purchase
hereunder, then this Agreement shall terminate without any
liability on the part of the Company or any Underwriter
(other than an Underwriter which shall have failed or
refused, in accordance with the terms hereof, to purchase
and pay for the principal amount of the Securities which
such Underwriter has agreed to purchase as provided in
paragraph 4 hereof), except as otherwise provided in
paragraph 7 and paragraph 8 hereof.
7. Covenants of the Company. The Company covenants with
------------------------
each Underwriter that:
(a) As soon as possible after the execution and
delivery of this Agreement, the Company will file the
Prospectus with the Commission pursuant to Rule 424, setting
forth, among other things, the necessary information with
respect to the terms of offering of the Securities. The
Company will promptly deliver to the Representative and to
counsel for the Underwriters one fully executed copy or one
conformed copy, certified by an officer of the Company, of
registration statement No. 33-57835 as originally filed and
of all amendments thereto, heretofore or hereafter made,
which relate to the Securities, including any post-effective
amendment (in each case including all exhibits filed
therewith and all documents incorporated therein not
previously furnished to the Representative), including
signed copies of each consent and certificate included
therein or filed as an exhibit thereto, and will deliver to
the Representative for distribution to the Underwriters as
many conformed copies of the foregoing (excluding the
exhibits, but including all documents incorporated therein)
as the Representative may reasonably request. The Company
will also send to the Underwriters as soon as practicable
after the date of this Agreement and thereafter from time to
time as many copies of the Prospectus as the Representative
may reasonably request for the purposes required by the
Securities Act.
(b) During such period (not exceeding nine months)
after the commencement of the offering of the Securities as
the Underwriters may be required by law to deliver a
Prospectus, if any event relating to or affecting the
Company, or of which the Company shall be advised in writing
by the Representative shall occur, which in the Company's
opinion should be set forth in a supplement to or an
amendment of the Prospectus in order to make the Prospectus
not misleading in the light of the circumstances when it is
delivered to a purchaser, or if it is necessary to amend the
Prospectus to comply with the Securities Act, the Company
will forthwith at its expense prepare and furnish to the
Underwriters and dealers named by the Representative a
reasonable number of copies of a supplement or supplements
or an amendment or amendments to the Prospectus which will
supplement or amend the Prospectus so that as supplemented
or amended it will comply with the Securities Act and will
not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the
statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading.
In case any Underwriter is required to deliver a Prospectus
after the expiration of nine months after the commencement
of the offering of the Securities, the Company, upon the
request of the Representative, will furnish to the
Representative, at the expense of such Underwriter, a
reasonable quantity of a supplemented or amended prospectus,
or supplements or amendments to the Prospectus, complying
with Section 10(a) of the Securities Act.
(c) The Company will make generally available to its
security holders, as soon as reasonably practicable, but in
any event not later than 16 months after the end of the
fiscal quarter in which the filing of the Prospectus
pursuant to Rule 424 occurs, an earnings statement (in form
complying with the provisions of Section 11(a) of the
Securities Act, which need not be certified by independent
public accountants) covering a period of twelve months
beginning not later than the first day of the Company's
fiscal quarter next following the filing of the Prospectus
pursuant to Rule 424.
(d) The Company will use its best efforts promptly to
do and perform all things to be done and performed by it
hereunder prior to the Closing Date and to satisfy all
conditions precedent to the delivery by it of the
Securities.
(e) The Company will advise the Representative
promptly of the filing of the Prospectus pursuant to Rule
424 and of any amendment or supplement to the Prospectus or
Registration Statement or of official notice of institution
of proceedings for, or the entry of, a stop order suspending
the effectiveness of the Registration Statement and, if such
a stop order should be entered, use its best efforts to ob-
tain the prompt removal thereof.
(f) The Company will use its best efforts to qualify
the Securities, for offer and sale under the Blue Sky or
legal investment laws of such jurisdictions as the
Representative may designate, and will file and make in each
year such statements or reports as are or may be reasonably
required by the laws of such jurisdictions; provided,
however, that the Company shall not be required to qualify
as a foreign corporation or dealer in securities, or to file
any general consents to service of process under the laws of
any jurisdiction. The fees and disbursements of Winthrop,
Stimson, Putnam & Roberts, who are acting as counsel on
behalf of the Underwriters for the purposes of this
Agreement, shall be paid by the Underwriters (subject,
however, to the provisions of paragraph 8 requiring payment
by the Company of fees and expenses not to exceed $5,000);
provided, however, that if this Agreement is terminated in
accordance with the provisions of paragraph 9, 10 or 12, the
Company shall reimburse the Representative for the account
of the Underwriters for the amount of such counsel fees and
disbursements. The Company shall not be required to pay any
amount for any expenses of the Representative or of any
other of the Underwriters except as provided in this
paragraph 7 and in paragraph 8. The Company shall not in
any event be liable to any of the Underwriters for damages
on account of the loss of anticipated profit.
8. Payment of Expenses. The Company will pay all expenses
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incident to the performance of its obligations under this
Agreement, including (i) the printing and filing of the
Registration Statement and the printing of this Agreement, (ii)
the delivery of the Securities to the Underwriters, (iii) the
fees and disbursements of the Company's counsel and accountants,
(iv) the expenses in connection with the qualification of the
Securities under securities laws in accordance with the
provisions of paragraph 7(f), including filing fees and the fees
and disbursements of counsel for the Underwriters in connection
therewith, and in connection with the preparation of the Blue Sky
Survey and Legality Memorandum, such fees and disbursements not
to exceed $5,000, (v) the printing and delivery to the
Underwriters of copies of the Registration Statement and all
amendments thereto, of the preliminary prospectuses, and of the
Prospectus and any amendments or supplements thereto, (vi) the
printing and delivery to the Underwriters of copies of the Blue
Sky Survey and any Legality Memorandum, and (vii) the
preparation, execution and, if required, filing by the Company of
the Supplemental Indenture relating to the Securities (such
filing to be promptly made, after execution and delivery of the
Supplemental Indenture to the Trustee under the Indenture); and
the Company will pay all taxes, if any (but not including any
transfer taxes), on the issue of the Securities and, if required,
the filing of the Supplemental Indenture.
9. Conditions of Underwriters' Obligations. The several
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obligations of the Underwriters to purchase and pay for the
Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company, to the
performance by the Company of its obligations to be performed
hereunder prior to the Closing Date, and to the following further
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing
Date and no proceedings for that purpose shall be pending
before, or threatened by, the Commission on the Closing
Date, and the Representative shall have received, prior to
payment for the Securities, a certificate dated the Closing
Date and signed by the Chairman, President or a Vice
President of the Company to the effect that no such stop
order is in effect and that no proceedings for such purpose
are pending before or, to the knowledge of the Company,
threatened by the Commission.
(b) Prior to 12 Noon, New York Time, on the day
following the date of this Agreement, or such later date as
shall have been consented to by the Representative, there
shall have been issued and on the Closing Date there shall
be in full force and effect orders of the North Carolina
Utilities Commission and the South Carolina Public Service
Commission authorizing the issuance and sale of the
Securities, none of which shall contain any provision
unacceptable to the Representative by reason of its being
materially adverse to the Company (it being understood that
no such order in effect on the date of this Agreement and
heretofore furnished to the Representative or to Winthrop,
Stimson, Putnam & Roberts, Counsel for the Underwriters,
contains any such unacceptable provision).
(c) At the Closing Date, the Representative shall
receive favorable opinions from: (1) Reid & Priest LLP, of
counsel to the Company, which opinion shall be satisfactory
in form and substance to Winthrop, Stimson, Putnam &
Roberts, Counsel for the Underwriters, and (2) Winthrop,
Stimson, Putnam & Roberts, in each of which opinions said
counsel may rely as to all matters of North Carolina and
South Carolina law upon the opinions of Richard E. Jones,
Esq., Senior Vice President, General Counsel and Secretary
for the Company, and Messrs. Paulling & James, respectively,
to the effect that:
(i) The Indenture has been duly and validly
authorized by all necessary corporate action, has been
duly and validly executed and delivered, and is a valid
and binding agreement of the Company enforceable in
accordance with its terms, except as limited by
bankruptcy, insolvency or other laws affecting
mortgagees' and other creditors' rights and general
equitable principles;
(ii) The Indenture has been duly qualified under
the 1939 Act;
(iii) The Securities are legal, valid and binding
obligations of the Company enforceable in accordance
with their terms, except as limited by bankruptcy,
insolvency or other laws affecting creditors' rights
and general equitable principles, and are entitled to
the benefit afforded by the Indenture;
(iv) The statements made in the Prospectus under
the captions "DESCRIPTION OF DEBT SECURITIES" and
"CERTAIN TERMS OF THE CAPITAL SECURITIES", insofar as
they purport to constitute summaries of the documents
referred to therein, constitute accurate summaries of
the terms of such documents in all material respects;
(v) This Agreement has been duly and validly
authorized, executed and delivered by the Company;
(vi) The Registration Statement, at the time and
date it was declared effective by the Commission, and
the Prospectus, at the time it was filed with, or
transmitted for filing to, the Commission pursuant to
Rule 424 (except as to the financial statements and
other financial and statistical data constituting a
part thereof or incorporated by reference therein, upon
which such opinions need not pass), complied as to form
in all material respects with the requirements of the
Securities Act and the 1939 Act and the applicable
instructions, rules and regulations of the Commission
thereunder; the documents or portions thereof filed
with the Commission pursuant to the Exchange Act and
deemed to be incorporated by reference in the
Registration Statement and the Prospectus pursuant to
Item 12 of Form S-3 (except as to financial statements
and other financial and statistical data constituting a
part thereof or incorporated by reference therein, upon
which such opinions need not pass), at the time they
were filed with the Commission, complied as to form in
all material respects with the requirements of the
Exchange Act and the applicable instructions, rules and
regulations of the Commission thereunder; the
Registration Statement has become, and at the Closing
Date is, effective under the Securities Act and, to the
best of the knowledge of said counsel, no proceedings
for a stop order with respect thereto are threatened or
pending under Section 8 of the Securities Act;
(vii) Nothing has come to the attention of said
counsel that would lead them to believe that the
Registration Statement, at the time and date it was
declared effective by the Commission, contained an
untrue statement of a material fact or omitted to state
a material fact required to be stated therein or
necessary to make the statements therein not misleading
or that the Prospectus, at the time it was filed with,
or transmitted for filing to, the Commission pursuant
to Rule 424 or at the Closing Date, included or
includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading (except as to financial statements and other
financial and statistical data constituting a part of
the Registration Statement or the Prospectus or
incorporated by reference therein, upon which such
opinions need not pass); and
(viii) Orders have been entered by the North
Carolina Utilities Commission and the South Carolina
Public Service Commission authorizing the issuance and
sale of the Securities, and to the best of the
knowledge of said counsel, said orders are still in
force and effect; and no further approval,
authorization, consent or other order of any public
board or body (other than in connection or in
compliance with the provisions of the blue sky laws of
any jurisdiction) is legally required for the issuance
and sale of the Securities.
(d) At the Closing Date, the Representative shall
receive from Richard E. Jones, Esq., Senior Vice President,
General Counsel and Secretary for the Company, a favorable
opinion in form and substance satisfactory to Winthrop,
Stimson, Putnam & Roberts, Counsel for the Underwriters, to
the same effect with respect to the matters enumerated in
subdivisions (i) through (v) and subdivisions (vii) and
(viii) of subparagraph (c) of this paragraph 9 as the
opinions required by said subparagraph (c), and to the
further effect that:
(i) The Company is a validly organized and
existing corporation and is in good standing under the
laws of the State of North Carolina and is qualified to
do business and is doing business in that State and in
the State of South Carolina;
(ii) The Company is duly authorized by its
Charter to conduct the business which it is now
conducting as set forth in the Prospectus;
(iii) The Company has valid franchises, licenses
and permits free from burdensome restrictions and
adequate for the conduct of its business;
(iv) The information contained in the Prospectus,
which is stated therein to have been made in reliance
upon the opinion of said counsel, has been reviewed by
said counsel and is correct; and
(v) The issuance and sale of the Securities have
been duly authorized by all necessary corporate action
on the part of the Company.
In said opinion such counsel may rely as to all matters of
South Carolina law on the opinion of Messrs. Paulling &
James.
(e) At the Closing Date, the Representative shall
receive from Messrs. Paulling & James, Darlington, South
Carolina, a favorable opinion in form and substance
satisfactory to Winthrop, Stimson, Putnam & Roberts, Counsel
for the Underwriters, to the effect that:
(i) The Company is duly qualified to engage in
the business in which it is engaged in the State of
South Carolina;
(ii) The Company holds valid and subsisting
franchises, licenses and permits in South Carolina
authorizing it to carry on the utility business in
which it is engaged in South Carolina; and
(iii) They have reviewed the opinion letter of
even date therewith addressed to you by Richard E.
Jones, Esq., Senior Vice President, General Counsel and
Secretary for the Company, and they concur in the
opinions which he has expressed therein insofar as they
relate to the laws of the State of South Carolina.
(f) At the time of execution of this Agreement and at
the Closing Date, the Representative shall have received
from Deloitte & Touche LLP letters, dated respectively the
date of this Agreement and the Closing Date, confirming that
they are independent certified public accountants within the
meaning of the Securities Act and the Exchange Act, and of
the applicable published rules and regulations thereunder,
and stating in effect that: (i) in their opinion, the
audited financial statements incorporated by reference in
the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act or the Exchange Act, as applicable, and of
the published rules and regulations thereunder; (ii) based
on the performance of the procedures specified by the
American Institute of Certified Public Accountants for
review of interim financial information as described in
Statement on Auditing Standards ("SAS") No. 71, Interim
-------
Financial Information, on the unaudited financial statements
---------------------
incorporated by reference in the Registration Statement,
inquiries of officials of the Company responsible for
financial and accounting matters and reading the minutes of
meetings of the Board of Directors, of the Executive
Committee of the Board of Directors and of the shareholders,
nothing came to their attention that caused them to believe
that (A) the unaudited financial statements incorporated by
reference in the Registration Statement do not comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act or the Exchange Act, as
applicable, and the published rules and regulations
thereunder or any material modifications should be made for
them to be in conformity with generally accepted principles
applied on a basis substantially consistent with that of the
most recent audited financial statements incorporated by
reference in the Registration Statement; or (B) at the date
of the latest available interim balance sheet read by them
and at a subsequent date not more than five days prior to
the date of each such letter, there was any change in the
capital stock or long-term debt of the Company, or at the
date of the latest available interim balance sheet read by
them, there was any decrease in net assets as compared with
the amount shown on the most recent balance sheet
incorporated by reference in the Registration Statement,
except for changes or decreases that the Registration
Statement discloses have occurred or may occur, for
declarations of dividends, for common stock sales under the
Automatic Dividend Reinvestment and Customer Stock Ownership
Plan and Stock Purchase-Savings Plan, or for changes or
decreases that are described in such letter; and (iii)
covering such other matters as the Representative shall
reasonably request.
(g) At the Closing Date, the Representative shall
receive a certificate of the Chairman, President or a Vice
President of the Company, dated the Closing Date, to the
effect that the representations and warranties of the
Company in this Agreement are true and correct as of the
Closing Date.
(h) All legal proceedings taken in connection with the
sale and delivery of the Securities shall have been
satisfactory in form and substance to Winthrop, Stimson,
Putnam & Roberts, Counsel for the Underwriters.
In case any of the conditions specified above in this
paragraph 9 shall not have been fulfilled at the Closing Date,
this Agreement may be terminated by the Representative by mailing
or delivering written notice thereof to the Company. Any such
termination shall be without liability of any party to any other
party except as otherwise provided in paragraphs 7 and 8.
10. Conditions of the Company's Obligations. The
---------------------------------------
obligations of the Company to deliver the Securities shall be
subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing
Date, and no proceedings for that purpose shall be pending
before or threatened by the Commission on the Closing Date.
(b) Prior to 12 Noon, New York Time, on the day
following the date of this Agreement, or such later date as
shall have been consented to by the Company, there shall
have been issued and on the Closing Date there shall be in
full force and effect orders of the North Carolina Utilities
Commission and the South Carolina Public Service Commission
authorizing the issuance and sale by the Company of the
Securities, none of which shall contain any provision
unacceptable to the Company by reason of its being
materially adverse to the Company (it being understood that
no such order in effect as of the date of this Agreement
contains any such unacceptable provision).
In case any of the conditions specified in this paragraph 10
shall not have been fulfilled at the Closing Date, this Agreement
may be terminated by the Company by mailing or delivering written
notice thereof to the Representative. Any such termination shall
be without liability of any party to any other party except as
otherwise provided in paragraphs 7 and 8.
11. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person who controls any
Underwriter within the meaning of Section 15 of the
Securities Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of
them may become subject under the Securities Act or under
any other statute or common law and to reimburse each such
Underwriter and controlling person for any legal or other
expenses (including to the extent hereinafter provided,
reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or
liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities,
expenses or actions arise out of or are based upon any
untrue statement, or alleged untrue statement, of a material
fact contained in the Registration Statement, any
preliminary prospectus relating to the Securities or the
Prospectus, or in the Registration Statement or Prospectus
as amended or supplemented (if any amendments or supplements
thereto shall have been furnished), or the omission or
alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the
indemnity agreement contained in this paragraph 11 shall not
apply to any such losses, claims, damages, liabilities,
expenses or actions arising out of, or based upon any such
untrue statement or alleged untrue statement, or any such
omission or alleged omission, if such statement or omission
was made in reliance upon information furnished herein or in
writing to the Company by any Underwriter or through the
Representative on behalf of such Underwriter for use in the
Registration Statement or Prospectus, or any amendment or
supplement to either thereof, or arising out of, or based
upon, statements in or omissions from that part of the
Registration Statement which shall constitute the Statements
of Eligibility under the 1939 Act (Forms T-1 and T-2) of the
Trustees under the Mortgage and the Trustee under the
Indenture, and provided, further, that the indemnity
agreement contained in this paragraph 11 with respect to any
such preliminary prospectus or the Prospectus shall not
inure to the benefit of any Underwriter (or of any person
controlling such Underwriter) on account of any such losses,
claims, damages, liabilities, expenses or actions arising
from the sale of the Securities to any person if a copy of
the Prospectus or the Prospectus as amended or supplemented,
as the case may be, shall have been furnished to the
Representative prior to the written confirmation of such
sale and such untrue statement or omission in such
preliminary prospectus or the Prospectus, as the case may
be, was corrected in the Prospectus or the Prospectus as so
amended or supplemented, as the case may be, and such
Prospectus or Prospectus as so amended or supplemented, as
the case may be, (excluding, in each case, documents
incorporated by reference therein) shall not have been given
or sent to such person by or on behalf of such Underwriter
with or prior to such written confirmation. The indemnity
agreement of the Company contained in this paragraph 11 and
the representations and warranties of the Company contained
in paragraph 3 hereof shall remain operative and in full
force and effect regardless of any investigation made by or
on behalf of any Underwriter or any such controlling person
and shall survive the delivery of the Securities. The
Underwriters agree to notify promptly the Company, and each
other Underwriter, of the commencement of any litigation or
proceedings against them or any of them, or any such
controlling person, in connection with the sale of the
Securities.
(b) Each Underwriter agrees to indemnify and hold
harmless the Company, its officers and directors, each other
Underwriter, and each person who controls any thereof within
the meaning of Section 15 of the Securities Act, against any
and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject
under the Securities Act or under any other statute or
common law, and to reimburse each of them for any legal or
other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by them in
connection with investigating any such losses, claims,
damages, or liabilities, or in connection with defending any
actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based
upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or
Prospectus as amended or supplemented (if any amendments or
supplements thereto shall have been furnished), or the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, if such statement or
omission was made in reliance upon information furnished
herein or in writing to the Company by such Underwriter or
through the Representative on behalf of such Underwriter for
use in the Registration Statement or the Prospectus or any
amendment or supplement to either thereof. The indemnity
agreement of all the respective Underwriters contained in
this paragraph 11 shall remain operative and in full force
and effect regardless of any investigation made by or on
behalf of the Company or any other Underwriter, or any such
controlling person, and shall survive the delivery of the
Securities. The Company agrees promptly to notify the Rep-
resentative of the commencement of any litigation or
proceedings against the Company or any of its officers or
directors, or any such controlling person, in connection
with the sale of the Securities.
(c) The Company and each of the Underwriters agree
that, upon the receipt of notice of the commencement of any
action against it, its officers and directors, or any person
controlling it as aforesaid, in respect of which indemnity
may be sought on account of any indemnity agreement
contained herein, it will promptly give written notice of
the commencement thereof to the party or parties against
whom indemnity shall be sought hereunder. The omission so
to notify such indemnifying party or parties of any such
action shall relieve such indemnifying party or parties from
any liability which it or they may have to the indemnified
party on account of any indemnity agreement contained herein
but shall not relieve such indemnifying party or parties
from any liability which it or they may have to the
indemnified party otherwise than on account of such
indemnity agreement. In case such notice of any such action
shall be so given, such indemnifying party shall be entitled
to participate at its own expense in the defense or, if it
so elects, to assume (in conjunction with any other
indemnifying parties) the defense of such action, in which
event such defense shall be conducted by counsel chosen by
such indemnifying party (or parties) and satisfactory to the
indemnified party or parties who shall be defendant or
defendants in such action, and such defendant or defendants
shall bear the fees and expenses of any additional counsel
retained by them; but if the indemnifying party shall elect
not to assume the defense of such action, such indemnifying
parties will reimburse such indemnified party or parties for
the reasonable fees and expenses of any counsel retained by
them; provided, however, if the defendants in any such
action include both the indemnified party and the
indemnifying party and counsel for the indemnifying party
shall have reasonably concluded that there may be a conflict
of interest involved in the representation by such counsel
of both the indemnifying party and the indemnified party,
the indemnified party or parties shall have the right to
select separate counsel, satisfactory to the indemnifying
party, to participate in the defense of such action on
behalf of such indemnified party or parties (it being
understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel
representing the indemnified parties who are parties to such
action).
12. Termination Date of this Agreement. This Agreement may
----------------------------------
be terminated by the Representative at any time prior to the
Closing Date by mailing or delivering written notice thereof to
the Company, if prior to such time (a) there shall have occurred
any general suspension of trading in securities on the New York
or Pacific Stock Exchange, or there shall have been established
by the New York or Pacific Stock Exchange or by the Commission or
by any federal or state agency or by the decision of any court
any limitation on prices for such trading or any restrictions on
the distribution of securities, or (b) there shall have occurred
any new outbreak of hostilities, including, but not limited to,
an escalation of hostilities which existed prior to the date of
this Agreement, or other national or international calamity or
crisis, the effect of which on the financial markets of the
United States shall be such as to make it impracticable, in the
reasonable judgment of the Representative, for the Underwriters
to enforce contracts for the sale of the Securities, or (c) the
Company shall have sustained a substantial loss by fire, flood,
accident or other calamity which renders it impracticable, in the
reasonable judgment of the Representative, to consummate the sale
of the Securities and the delivery of the Securities by the
several Underwriters at the initial public offering price. This
Agreement may also be terminated at any time prior to the Closing
Date if in the reasonable judgment of the Representative the
subject matter of any amendment or supplement to the Registration
Statement or Prospectus (other than an amendment or supplement
relating solely to the activity of any Underwriter or
Underwriters) filed after the execution of this Agreement shall
have materially impaired the marketability of the Securities.
Any termination hereof pursuant to this paragraph 12 shall be
without liability of any party to any other party except as
otherwise provided in paragraphs 7 and 8.
13. Miscellaneous. The validity and interpretation of this
-------------
Agreement shall be governed by the laws of the State of New York.
Unless otherwise specified, time of day refers to New York City
time. This Agreement shall inure to the benefit of, and be
binding upon, the Company, the several Underwriters, and with
respect to the provisions of paragraph 11, the officers and
directors and each controlling person referred to in paragraph
11, and their respective successors. Nothing in this Agreement
is intended or shall be construed to give to any other person,
firm or corporation any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein
contained. The term "successors" as used in this Agreement shall
not include any purchaser, as such purchaser, of any of the
Securities from any of the several Underwriters.
14. Notices. All communications hereunder shall be in
-------
writing or by telegram and, if to the Underwriters, shall be
mailed, transmitted by any standard form of telecommunication or
delivered to the Representative at the address set forth in
Schedule I hereto and if to the Company, shall be mailed or
delivered to it at 411 Fayetteville Street, Raleigh, North
Carolina 27601-1748, attention of M. S. Glass, Treasurer.
15. Counterparts. This Agreement may be simultaneously
------------
executed in counterparts, each of which when so executed shall be
deemed to be an original. Such counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to the Company the enclosed
duplicate hereof whereupon it will become a binding agreement
between the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
CAROLINA POWER & LIGHT COMPANY
/s/ Robert J. Reger, Jr.
By __________________________
Authorized Representative
Accepted as of the date first
above written, as the
Representative of the several
Underwriters named in Schedule II.
LEHMAN BROTHERS INC.
/s/ James Penrose
By __________________________
Authorized Representative
SCHEDULE I
Underwriting Agreement dated April 13, 1995
Registration Statement No. 33-57835
Representative and Address:
Lehman Brothers Inc.
3 World Trade Center
New York, New York 10285
Securities:
Designation: 8.55% Quarterly Income Capital Securities (Series A
Subordinated Deferrable Interest Debentures). Each $25 principal
amount of such 8.55% Quarterly Income Capital Securities is
referred to below as "Capital Security".
Principal Amount: $125,000,000
Resolutions, dated March 15, 1995, of the Board of Directors of
Carolina Power & Light Company and Resolutions, dated April 13,
1995, of the Executive Committee of the Board of Directors of
Carolina Power & Light Company.
Date of Maturity: June 30, 2025
Interest Rate: 8.55% per annum, payable quarterly, on March 31,
June 30, September 30 and December 31 of each year, commencing
June 30, 1995.
Purchase Price: $24.50 per Capital Security, in the case of
Capital Securities sold by the Underwriters to institutions, and
$24.2125 per Capital Security, in the case of all other Capital
Securities sold by the Underwriters.
Public Offering Price: $25.00 per Capital Security.
Closing Date and Location:
April 21, 1995
Reid & Priest LLP
40 West 57th Street
New York, New York 10019
SCHEDULE II
Underwriters Principal Amount
------------ ----------------
Lehman Brothers Inc. $ 14,625,000
Goldman, Sachs & Co. 14,500,000
Merrill Lynch, Pierce,
Fenner & Smith Incorporated 14,500,000
Morgan Stanley & Co. Incorporated 14,500,000
PaineWebber Incorporated 14,500,000
Prudential Securities Incorporated 14,500,000
Bear Stearns & Co. Inc. 2,375,000
Donaldson, Lufkin & Jenrette
Securities Corporation 2,375,000
Interstate/Johnson Lane Corporation 2,375,000
Edward D. Jones & Co. 2,375,000
Kemper Securities, Inc. 2,375,000
Oppenheimer & Co., Inc. 2,375,000
The Robinson-Humphrey Company, Inc. 2,375,000
Salomon Brothers Inc 2,375,000
Smith Barney Inc. 2,375,000
Advest, Inc. 750,000
William Blair & Company 750,000
J.C. Bradford & Co. 750,000
Citicorp Securities, Inc. 750,000
Cowen & Company 750,000
Craigie Incorporated 750,000
Dain Bosworth Incorporated 750,000
Davenport & Co. of Virginia, Inc. 750,000
Fahnestock & Co. Inc. 750,000
Furman Selz Incorporated 750,000
J.J.B. Hilliard, W.L. Lyons, Inc. 750,000
Janney Montgomery Scott Inc. 750,000
Legg Mason Wood Walker, Incorporated 750,000
McDonald & Company Securities, Inc. 750,000
McGrim, Smith & Co., Inc. 750,000
Morgan Keegan & Company, Inc. 750,000
Olde Discount Corporation 750,000
Piper Jaffray Inc. 750,000
Rauscher Pierce Refsnes, Inc. 750,000
Raymond James & Associates, Inc. 750,000
U.S. Clearing Corp. 750,000
Wheat, First Securities, Inc. 750,000
____________
Total $125,000,000
============
EXHIBIT 4(a)
RESOLUTIONS OF THE BOARD OF DIRECTORS OF
----------------------------------------
CAROLINA POWER & LIGHT COMPANY (THE "COMPANY"),
----------------------------------------------
ADOPTED AT A MEETING HELD ON MARCH 15, 1995,
--------------------------------------------
WITH RESPECT TO THE COMPANY'S ISSUANCE OF
-----------------------------------------
$250,000,000 COMBINED PRINCIPAL AMOUNT OF
-----------------------------------------
ONE OR MORE SERIES OF THE COMPANY'S
-----------------------------------
FIRST MORTGAGE BONDS AND/OR OTHER DEBT SECURITIES
-------------------------------------------------
RESOLVED, that all of the actions heretofore taken by the
officers of the Company with respect to the preparation,
execution and filing with the Securities and Exchange
Commission, on behalf of the Company, pursuant to the
Securities Act of 1933, as amended, and the Rules and
Regulations of the Securities and Exchange Commission
promulgated thereunder, a Registration Statement, including
any necessary amendments to said Registration Statement or
supplements to the Prospectus which is a part of said
Registration Statement, and with any and all exhibits and
other documents related thereto, with respect to the
proposed issuance and sale by the Company from time to time
of one or more new series of the Company's First Mortgage
Bonds and/or Other Debt Securities (including Subordinated
Debt Securities) not to exceed an additional $250,000,000
combined principal amount, and for qualification under the
Trust Indenture Act of 1939, as amended, or the Company's
presently existing Mortgage and Deed of Trust, dated as of
May 1, 1940, as supplemented and as it is proposed to be
further supplemented by an appropriate supplemental
indenture or indentures are in all respects ratified,
approved and confirmed; and further
RESOLVED, that all actions heretofore taken by the officers
of the Company with respect to the preparation and execution
of an Unsecured Debt Securities Indenture, dated as of March
1, 1995 (the "Subordinated Indenture"), under which the
Subordinated Debt Securities of the Company referenced in
the immediately preceding resolution are to be issued,
including the selection of Bankers Trust Company to act as
trustee thereunder, and for the qualification under the
Trust Indenture Act of 1939, as amended, of the Subordinated
Indenture, as it is proposed to be supplemented by an
appropriate supplemental indenture or indentures,
resolutions and/or officer's certificates are in all
respects ratified, approved and confirmed; and further
RESOLVED, that it is desirable and in the best interests of
the Company that the additional First Mortgage Bonds and/or
Other Debt Securities be qualified or registered for sale in
various jurisdictions; that the Chairman and Chief Executive
Officer, the President, any Executive Vice President, any
Vice President, the Treasurer, the Secretary and any
Assistant Secretary and each of them severally, is hereby
authorized to determine the jurisdictions in which
appropriate action shall be taken to qualify or register for
sale all or such part of such First Mortgage Bonds and/or
Other Debt Securities as such officers may deem advisable;
that each of said officers is hereby authorized to perform
on behalf of the Company any and all such acts as he or she
may deem necessary or advisable in order to comply with the
applicable laws of any such jurisdiction, and in connection
therewith to execute and file all requisite papers and
documents, including, but not limited to, applications,
reports, surety bonds, irrevocable consents and appointments
of attorneys for service of process; and the execution by
any such officer of any such paper or document or the doing
by him or her of any act in connection with the foregoing
matters shall conclusively establish his authority therefor
from the Company and approval and ratification by the
Company of the papers and documents so executed and the act
so taken; and further
RESOLVED, that all of the actions heretofore taken by the
officers of the Company with respect to the preparation,
execution and filing on behalf of the Company, appropriate
applications and amendments thereto, with the North Carolina
Utilities Commission and the South Carolina Public Service
Commission for authority to issue and sell said additional
First Mortgage Bonds and/or Other Debt Securities (including
Subordinated Debt Securities) are in all respects ratified,
approved and confirmed.
RESOLVED, that the officers of the Company are authorized
and empowered to proceed with arrangements for the sale from
time to time of one or more series of the Company's First
Mortgage Bonds and/or Other Debt Securities not to exceed a
combined additional principal amount of $250,000,000, such
sale or sales to be made pursuant to competitive bidding,
negotiated underwriting or by private sale, as the Executive
Committee of the Board of Directors may deem advisable and
in the best interests of the Company; and further
RESOLVED, that the form of Supplemental Indenture to The
Bank of New York (formerly Irving Trust Company) and W.T.
Cunningham, as Trustees, as part of the registration
statement presented to this meeting, is hereby approved, and
the officers of this Company are hereby authorized and
directed for and on behalf of this Company to sign, seal and
acknowledge and deliver a Supplemental Indenture in
substantially said form, with such changes and additions
therein as may be necessary to reflect the terms of the
First Mortgage Bonds, and with such changes therein as may
be approved by the officers executing the same, such
approval to be conclusively evidenced by their execution
thereof; and further
RESOLVED, that the Executive Committee of the Board of
Directors of the Company is authorized to establish the
terms of Other Debt Securities (including Subordinated Debt
Securities) in accordance with the provisions of the
Unsecured Debt Securities Indenture and/or the Subordinated
Indenture, and the Executive Committee of the Board of
Directors of the Company is authorized to delegate all or
any part of such authority to establish terms of Other Debt
Securities (including Subordinated Debt Securities) to the
Chairman and Chief Executive Officer, the President, any
Vice President, the Treasurer or any other officer of the
Company; and further
RESOLVED, that the Chairman and Chief Executive Officer, the
President, any Executive Vice President, the Treasurer of
the Company or Robert J. Reger, Jr. is authorized and
empowered, acting in the name and on behalf of the Company,
to enter into an underwriting agreement or agreements with
the Representative(s) of various underwriters for the sale
by the Company and the purchase by such underwriters for
distribution to the public of one or more series of First
Mortgage Bonds and/or Other Debt Securities (including
Subordinated Debt Securities), not to exceed $250,000,000 in
combined aggregate principal amount, such underwriting
agreement or agreements to be in the form or forms presented
to this meeting or substantially in such form or forms, with
such changes as shall be approved by the officer executing
such underwriting agreement or agreements, his or her
approval to be conclusively evidenced by such execution; and
further
RESOLVED, that the officers of the Company are authorized
and directed to execute and deliver any and all documents
and instruments and to take any and all actions and to do
any and all things, they and each of them, may deem
necessary or advisable in order to carry out the intents and
purposes of the resolutions adopted at this meeting.
Exhibit 4(b)
ISSUANCE AND SALE BY THE COMPANY TO THE PUBLIC OF NOT TO
--------------------------------------------------------
EXCEED $125,000,000 PRINCIPAL AMOUNT OF
---------------------------------------
8.55% QUARTERLY INCOME CAPITAL SECURITIES
-----------------------------------------
(SERIES A SUBORDINATED DEFERRABLE INTEREST DEBENTURES)
------------------------------------------------------
Executive Committee Meeting - April 13, 1995
---------------------------------------------
RESOLVED, that the transaction negotiated with the
Underwriters represented by Lehman Brothers Inc., for
the purchase from the Company of $125,000,000 principal
amount of the Company's Debentures, to be issued
pursuant to a Subordinated Indenture, dated as of March
1, 1995 (the "Subordinated Indenture") from the Company
to Bankers Trust Company, as trustee (the "Subordinated
Indenture Trustee"), which transaction provides for an
interest rate to be borne by the securities of 8.55%
and a price to be paid to the Company for the
Debentures of at least $121,062,500 is hereby approved
and accepted, and the form of Underwriting Agreement
presented to this meeting as Exhibit __ is hereby
approved, and the Chairman and Chief Executive Officer,
President and Chief Operating Officer or any Vice
President of the Company or Robert J. Reger, Jr., Esq.,
of Reid & Priest LLP, counsel to the Company is hereby
authorized and empowered to execute and deliver, on
behalf of the Company, an Underwriting Agreement in the
form, or in substantially the form, presented to this
meeting as Exhibit __, with such changes therein as the
person executing the Underwriting Agreement may
approve, his approval thereof to be conclusively
evidenced by his signature thereto, and the officers of
the Company are hereby authorized and directed, on
behalf of the Company acting severally or jointly, to
sign, seal and deliver such papers and documents and to
do or cause to be done any and all acts and things as
to them may seem necessary or appropriate in order to
enable the Company fully and promptly to perform all of
its obligations under the Underwriting Agreement.
RESOLVED, that
(i) the securities to be issued under the Subordinated
Indenture shall be designated "8.55% Quarterly Income
Capital Securities (Series A Subordinated Deferrable
Interest Debentures)" (the "QUICS"); all capitalized
terms used in these resolutions and not defined herein
shall have the meaning set forth in the Subordinated
Indenture;
(ii) the QUICS shall be limited in aggregate principal
amount to $125,000,000 at any time Outstanding;
(iii) the QUICS shall mature and the principal
thereof shall be due and payable on June 30, 2025,
together with all accrued and unpaid interest thereon
to, but not including, such date;
(iv) the QUICS shall bear interest from the date of
original issuance (which is anticipated to be April 21,
1995) at the rate of 8.55% per annum payable quarterly
in arrears on March 31, June 30, September 30 and
December 31 of each year (each, an "Interest Payment
Date") commencing June 30, 1995. The amount of
interest payable for any such period will be computed
on the basis of a 360-day year of twelve 30-day months.
Interest on the QUICS will accrue from the date of
original issuance but if interest has been paid on such
QUICS, then from the most recent Interest Payment Date
through which interest has been paid. In the event
that any Interest Payment Date is not a Business Day,
then payment of interest payable on such date will be
made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect
of such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on
such Interest Payment Date;
(v) each installment of interest on the QUICS shall be
payable to the Person in whose name such QUICS is
registered at the close of business on the Business Day
next preceding the corresponding Interest Payment Date
(the "Regular Record Date") for the QUICS. Any
installment of interest on the QUICS not punctually
paid or duly provided for shall forthwith cease to be
payable to the Holders on such Regular Record Date, and
may be paid to the person in whose name the QUICS is
registered at the close of business on a Special Record
Date to be fixed by the Subordinated Indenture Trustee
for the payment of such defaulted interest, notice
whereof shall be given to the Holders of the QUICS not
less than 10 days prior to such Special Record Date, or
may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which the QUICS may be listed, and upon
such notice as may be required by such exchange, all as
more fully provided in the Subordinated Indenture;
(vi) the principal and each installment of interest on
the QUICS shall be payable at the office or agency of
the Company in The City of New York. The Subordinated
Indenture Trustee will initially be the Paying Agent
and the Registrar for the QUICS;
(vii) the QUICS will be redeemable at the option of
the Company, as a whole or in part, at any time on or
after April 21, 2000 and prior to maturity, upon not
less than 30 nor more than 60 days' notice, at 100% of
the principal amount redeemed, together with accrued
interest to, but not including, the date fixed for
redemption;
(viii) the QUICS shall be issuable in denominations of
$25 and any integral multiple thereof;
(ix) so long as any QUICS are Outstanding, the failure
of the Company to pay interest on any QUICS within 60
days after the same becomes due and payable (whether or
not payment is prohibited by the provisions of Article
Fifteen of the Subordinated Indenture) shall constitute
an Event of Default; provided, however, that a valid
extension of the interest payment period by the Company
as contemplated in Section 312 of the Subordinated
Indenture and paragraph (x) of these Resolutions shall
not constitute a failure to pay interest for this
purpose;
(x) pursuant to Section 312 of the Subordinated
Indenture, the Company shall have the right, at any
time and from time to time during the term of the
QUICS, to extend the interest payment period to a
period not exceeding 20 consecutive quarters (an
"Extended Interest Payment Period"), and at the end of
such Extended Interest Payment Period, the Company
shall pay all interest accrued and unpaid (together
with interest thereon at the same rate as specified for
the QUICS to the extent permitted by applicable law)
through the last day of such Extended Interest Payment
Period provided that if any principal amount of the
QUICS is paid on such day, then not including interest
for such day with respect to such amount; provided,
however, that during such Extended Interest Payment
Period, the Company shall not declare or pay any
dividend on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital
stock or make any guarantee payments with respect to
the foregoing. Prior to the termination of any such
Extended Interest Payment Period, the Company may
further extend the interest payment period, provided
that such Extended Interest Payment Period together
with all such previous and further extensions thereof
may not exceed 20 consecutive quarters or extend beyond
the Stated Maturity of the QUICS. Upon the termination
of any Extended Interest Payment Period and the payment
of all amounts then due, the Company may select a new
Extended Interest Payment Period, subject to the above
requirements. No interest during an Extended Interest
Payment Period, except at the end thereof, shall be due
and payable;
(xi) The Company shall give the Holders of the QUICS
and the Subordinated Indenture Trustee written notice
of its selection of such Extended Interest Payment
Period 10 Business Days prior to the earlier of (i) the
next succeeding Interest Payment Date, and (ii) the
date the Company is required to give notice to Holders
of the QUICS (or, if applicable, to the New York Stock
Exchange or other applicable self-regulatory
organization) of the record or payment date of such
interest payment, but in any event not less than two
Business Days prior to such record date. The quarter
in which any notice is given pursuant to this paragraph
shall constitute one of the 20 quarters which comprise
the maximum Extended Interest Payment Period;
(xii) the QUICS will be originally issued in
global form payable to CEDE & Co. and will,
unless and until the QUICS are exchanged in
whole or in part for certified QUICS
registered in the names of various beneficial
holders thereof, contain restrictions on
transfer, substantially as described in the
form of QUICS, hereto attached as Exhibit __;
and
(xiii) the QUICS shall have such other terms and
provisions as are provided in the form set forth in
Exhibit __ hereto, and shall be issued in such form;
and further
RESOLVED, that the Chairman and Chief Executive
Officer, the President and Chief Operating Officer, any
Vice President, or the Treasurer of the Company are,
and each of them is, authorized to establish additional
terms of the QUICS in accordance with the Subordinated
Indenture and to execute and deliver an Officer's
Certificate to the Subordinated Indenture Trustee
containing such additional terms.
RESOLVED, that the officers of the Company are hereby
authorized and directed to (i) file a listing
application with the New York Stock Exchange, Inc. (the
"Exchange") for the listing on the Exchange of not more
than $125,000,000 in aggregate principal amount of
QUICS, such application to be in the form, or
substantially in the form, presented to this meeting as
Exhibit __, (ii) enter into any agreements with the
Exchange in connection with said application as the
officers of the Company may deem necessary or
appropriate, and (iii) perform any and all other acts
and things necessary to consummate the listing of the
QUICS; and further
RESOLVED, that the Chairman and Chief
Executive Officer, the President and Chief
Operating Officer, any Vice President, the
Treasurer or any other Officer of the
Company, and Robert J. Reger, Jr., Esq., of
Reid & Priest LLP, counsel to the Company,
and each of them severally, are hereby
authorized to appear before, and file any
papers with, the Exchange or any department
or committee thereof in connection with any
application made by the Company for the
listing on the Exchange of the QUICS; and
further
RESOLVED, that the officers of the Company are
authorized and directed to execute and deliver any and
all documents and instruments and to take any and all
actions and to do any and all things they and each of
them may deem necessary or advisable in order to carry
out the intents and purposes of the resolutions adopted
at this meeting.
EXHIBIT 4(c)
__________________________________________
CAROLINA POWER & LIGHT COMPANY
TO
BANKERS TRUST COMPANY,
Trustee
_________
INDENTURE
(FOR UNSECURED SUBORDINATED DEBT SECURITIES)
DATED AS OF MARCH 1, 1995
__________________________________________
TABLE OF CONTENTS
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITAL OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Definitions and Other Provisions of General Application . . . . . . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request or Company Order . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . 3
Discount Security . . . . . . . . . . . . . . . . . . . . . . 3
Dollar or $ . . . . . . . . . . . . . . . . . . . . . . . . . 3
Eligible Obligations . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . 3
Governmental Authority . . . . . . . . . . . . . . . . . . . 3
Government Obligations . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officer's Certificate . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . 6
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . . . . . . . . . 7
Required Currency . . . . . . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . . . . . . . 7
Security Register and Security Registrar . . . . . . . . . . 7
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . 7
Special Record Date . . . . . . . . . . . . . . . . . . . . . 7
Stated Interest Rate . . . . . . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . 8
Successor Corporation . . . . . . . . . . . . . . . . . . . . 8
Tranche . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 102. Compliance Certificates and Opinions . . . . . . . . 8
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . 9
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . 10
SECTION 105. Notices, Etc. to Trustee and Company . . . . . . . . 11
SECTION 106. Notice to Holders of Securities; Waiver . . . . . . 12
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . 13
SECTION 108. Effect of Headings and Table of Contents . . . . . . 13
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . 13
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . 13
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . 13
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . 13
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . 14
ARTICLE TWO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Security Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . 14
SECTION 202. Form of Trustee's Certificate of Authentication . . 15
ARTICLE THREE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
The Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . 15
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . 19
SECTION 303. Execution, Authentication, Delivery and Dating . . . 19
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . 22
SECTION 305. Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . . . . 22
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . 23
SECTION 307. Payment of Interest; Interest Rights Preserved . . . 24
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . 25
SECTION 309. Cancellation by Security Registrar . . . . . . . . . 26
SECTION 310. Computation of Interest . . . . . . . . . . . . . . 26
SECTION 311. Payment to Be in Proper Currency . . . . . . . . . . 26
SECTION 312. Extension of Interest Payment . . . . . . . . . . . 27
ARTICLE FOUR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Redemption of Securities . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 401. Applicability of Article . . . . . . . . . . . . . . 27
SECTION 402. Election to Redeem; Notice to Trustee . . . . . . . 27
SECTION 403. Selection of Securities to Be Redeemed . . . . . . . 27
SECTION 404. Notice of Redemption . . . . . . . . . . . . . . . . 28
SECTION 405. Securities Payable on Redemption Date . . . . . . . 29
SECTION 406. Securities Redeemed in Part . . . . . . . . . . . . 29
ARTICLE FIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 501. Applicability of Article . . . . . . . . . . . . . . 30
SECTION 502. Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . . . . . 30
SECTION 503. Redemption of Securities for Sinking Fund . . . . . 31
ARTICLE SIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 601. Payment of Principal, Premium and Interest . . . . . 31
SECTION 602. Maintenance of Office or Agency . . . . . . . . . . 32
SECTION 603. Money for Securities Payments to Be Held in Trust . 32
SECTION 604. Corporate Existence . . . . . . . . . . . . . . . . 34
SECTION 605. Maintenance of Properties . . . . . . . . . . . . . 34
SECTION 606. Annual Officer's Certificate as to Compliance. . . . 34
SECTION 607. Waiver of Certain Covenants . . . . . . . . . . . . 34
ARTICLE SEVEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Satisfaction and Discharge . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 701. Satisfaction and Discharge of Securities . . . . . . 35
SECTION 702. Satisfaction and Discharge of Indenture . . . . . . 37
SECTION 703. Application of Trust Money . . . . . . . . . . . . . 38
ARTICLE EIGHT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Events of Default; Remedies . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 801. Events of Default . . . . . . . . . . . . . . . . . 39
SECTION 802. Acceleration of Maturity; Rescission and Annulment . 40
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . 41
SECTION 804. Trustee May File Proofs of Claim . . . . . . . . . . 42
SECTION 805. Trustee May Enforce Claims Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . 43
SECTION 806. Application of Money Collected . . . . . . . . . . . 43
SECTION 807. Limitation on Suits . . . . . . . . . . . . . . . . 43
SECTION 808. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . 44
SECTION 809. Restoration of Rights and Remedies . . . . . . . . . 44
SECTION 810. Rights and Remedies Cumulative . . . . . . . . . . . 44
SECTION 811. Delay or Omission Not Waiver . . . . . . . . . . . . 45
SECTION 812. Control by Holders of Securities . . . . . . . . . . 45
SECTION 813. Waiver of Past Defaults . . . . . . . . . . . . . . 45
SECTION 814. Undertaking for Costs . . . . . . . . . . . . . . . 46
SECTION 815. Waiver of Stay or Extension Laws . . . . . . . . . . 46
ARTICLE NINE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
The Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 901. Certain Duties and Responsibilities . . . . . . . . 46
SECTION 902. Notice of Defaults . . . . . . . . . . . . . . . . . 48
SECTION 903. Certain Rights of Trustee . . . . . . . . . . . . . 48
SECTION 904. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . . . 49
SECTION 905. May Hold Securities . . . . . . . . . . . . . . . . 49
SECTION 906. Money Held in Trust . . . . . . . . . . . . . . . . 50
SECTION 907. Compensation and Reimbursement . . . . . . . . . . . 50
SECTION 908. Disqualification; Conflicting Interests. . . . . . . 50
SECTION 909. Corporate Trustee Required; Eligibility . . . . . . 51
SECTION 910. Resignation and Removal; Appointment of Successor . 51
SECTION 911. Acceptance of Appointment by Successor . . . . . . . 53
SECTION 912. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . 54
SECTION 913. Preferential Collection of Claims Against Company . 55
SECTION 914. Co-trustees and Separate Trustees. . . . . . . . . . 55
SECTION 915. Appointment of Authenticating Agent . . . . . . . . 56
ARTICLE TEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Holders' Lists and Reports by Trustee and Company . . . . . . . . . . . 58
SECTION 1001. Lists of Holders . . . . . . . . . . . . . . . . . 58
SECTION 1002. Reports by Trustee and Company . . . . . . . . . . 59
ARTICLE ELEVEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Consolidation, Merger, Conveyance or Other Transfer . . . . . . . . . 59
SECTION 1101. Company May Consolidate, Etc., Only on
Certain Terms . . . . . . . . . . . . . . . . . . 59
SECTION 1102. Successor Corporation Substituted . . . . . . . . . 60
ARTICLE TWELVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1201. Supplemental Indentures Without Consent of
Holders . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1202. Supplemental Indentures With Consent of Holders . . 62
SECTION 1203. Execution of Supplemental Indentures . . . . . . . 63
SECTION 1204. Effect of Supplemental Indentures . . . . . . . . . 64
SECTION 1205. Conformity With Trust Indenture Act . . . . . . . . 64
SECTION 1206. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . 64
SECTION 1207. Modification Without Supplemental Indenture . . . . 64
ARTICLE THIRTEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Meetings of Holders; Action Without Meeting . . . . . . . . . . . . . . 65
SECTION 1301. Purposes for Which Meetings May Be Called . . . . . 65
SECTION 1302. Call, Notice and Place of Meetings . . . . . . . . 65
SECTION 1303. Persons Entitled to Vote at Meetings . . . . . . . 66
SECTION 1304. Quorum; Action . . . . . . . . . . . . . . . . . . 66
SECTION 1305. Attendance at Meetings; Determination of Voting
Rights; Conduct and Adjournment of Meetings . . . 67
SECTION 1306. Counting Votes and Recording Action of Meetings . . 68
SECTION 1307. Action Without Meeting . . . . . . . . . . . . . . 68
ARTICLE FOURTEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Immunity of Incorporators, Stockholders, Officers and Directors . . . . 68
SECTION 1401. Liability Solely Corporate . . . . . . . . . . . . 68
ARTICLE FIFTEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Subordination of Securities . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1501. Securities Subordinate to Senior Indebtedness. . . 69
SECTION 1502. Payment Over of Proceeds of Securities . . . . . . 69
SECTION 1503. Disputes with Holders of Certain Senior
Indebtedness . . . . . . . . . . . . . . . . . . 71
SECTION 1504. Subrogation . . . . . . . . . . . . . . . . . . . . 72
SECTION 1505. Obligation of the Company Unconditional . . . . . . 72
SECTION 1506. Priority of Senior Indebtedness Upon Maturity . . . 72
SECTION 1507. Trustee as Holder of Senior Indebtedness . . . . . 73
SECTION 1508. Notice to Trustee to Effectuate Subordination . . . 73
SECTION 1509. Modification, Extension, etc. of Senior
Indebtedness . . . . . . . . . . . . . . . . . . 73
SECTION 1510. Trustee Has No Fiduciary Duty to Holders of
Senior Indebtedness . . . . . . . . . . . . . . . 74
SECTION 1511. Paying Agents Other Than the Trustee . . . . . . . 74
SECTION 1512. Rights of Holders of Senior Indebtedness Not
Impaired . . . . . . . . . . . . . . . . . . . . 74
SECTION 1513. Effect of Subordination Provisions; Termination . . 74
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Signatures and Seals . . . . . . . . . . . . . . . . . . . . . . . . . 76
Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
CAROLINA POWER & LIGHT COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AN INDENTURE, DATED AS OF MARCH 1, 1995
TRUST INDENTURE ACT SECTION INDENTURE SECTION
SECTION
310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 909
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 909
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 914(b)
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908
910
SECTION
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 913
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 913
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 913
SECTION
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
SECTION
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
SECTION
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606
(b) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
SECTION
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
903
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 814
SECTION
316 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 812
813
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802
812
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 813
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 808
SECTION
317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 803
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 804
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603
SECTION
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
INDENTURE, dated as of March 1, 1995 between CAROLINA POWER &
LIGHT COMPANY, a corporation duly organized and existing under the laws of
the State of North Carolina (herein called the "Company"), having its
principal office at 411 Fayetteville Street, Raleigh, North Carolina
27601-1768, and BANKERS TRUST COMPANY, a corporation of the State of New
York, having its principal corporate trust office at Four Albany Street,
New York, New York 10006, as Trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
unsecured subordinated debentures, notes or other evidences of indebtedness
(herein called the "Securities"), to be issued in one or more series as
contemplated herein; and all acts necessary to make this Indenture a valid
agreement of the Company have been performed.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires, capitalized terms used
herein shall have the meanings assigned to them in Article One of this
Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities or
of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(b) all terms used herein without definition which are defined
in the Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States, and, except as otherwise
herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in the United States at the date of such computation or, at
the election of the Company from time to time, at the date of the
execution and delivery of this Indenture; provided, however, that in
determining generally accepted accounting principles applicable to the
Company, the Company shall, to the extent required, conform to any
order, rule or regulation of any administrative agency, regulatory
authority or other governmental body having jurisdiction over the
Company; and
(d) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Nine, are defined in
that Article.
"ACT", when used with respect to any Holder of a Security, has
the meaning specified in Section 104.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "CONTROL" when used with respect to any specified Person
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "CONTROLLING" and "CONTROLLED" have
meanings correlative to the foregoing.
"AUTHENTICATING AGENT" means any Person (other than the Company
or an Affiliate of the Company) authorized by the Trustee to act on behalf
of the Trustee to authenticate one or more series of Securities.
"AUTHORIZED OFFICER" means the Chairman of the Board, Chief
Executive Officer, the President, any Vice President, the Treasurer or any
other duly authorized officer of the Company.
"BOARD OF DIRECTORS" means either the board of directors of the
Company or any committee thereof duly authorized to act in respect of
matters relating to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place of Payment or
any other particular location specified in the Securities or this
Indenture, means any day, other than a Saturday or Sunday, which is not a
day on which banking institutions or trust companies in such Place of
Payment or other location are generally authorized or required by law,
regulation or executive order to remain closed, except as may be otherwise
specified as contemplated by Section 301.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the date of execution and delivery of this
Indenture such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body, if any,
performing such duties at such time.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or
order signed in the name of the Company by an Authorized Officer and
delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of execution and delivery of this
Indenture is located at Four Albany Street, New York, New York 10006.
"CORPORATION" means a corporation, association, company, joint
stock company or business trust.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DISCOUNT SECURITY" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
802. "interest" with respect to a Discount Security means interest, if
any, borne by such Security at a Stated Interest Rate.
"DOLLAR" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debts.
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a currency other
than Dollars or in a composite currency, such other obligations or
instruments as shall be specified with respect to such Securities, as
contemplated by Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section 801.
"GOVERNMENTAL AUTHORITY" means the government of the United
States or of any State or Territory thereof or of the District of Columbia
or of any county, municipality or other political subdivision of any
thereof, or any department, agency, authority or other instrumentality of
any of the foregoing.
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
entitled to the benefit of the full faith and credit thereof; and
(b) certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in
clause (a) above or in any specific interest or principal payments due
in respect thereof; provided, however, that the custodian of such
obligations or specific interest or principal payments shall be a bank
or trust company (which may include the Trustee or any Paying Agent)
subject to Federal or state supervision or examination with a combined
capital and surplus of at least $50,000,000; and provided, further,
that except as may be otherwise required by law, such custodian shall
be obligated to pay to the holders of such certificates, depositary
receipts or other instruments the full amount received by such
custodian in respect of such obligations or specific payments and
shall not be permitted to make any deduction therefrom.
"HOLDER" means a Person in whose name a Security is registered in
the Security Register.
"INDENTURE" means this instrument as originally executed and
delivered and as it may from time to time be supplemented or amended by one
or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of particular
series of Securities established as contemplated by Section 301.
"INTEREST PAYMENT DATE", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"MATURITY", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as provided in such Security or in this Indenture,
whether at the Stated Maturity, by declaration of acceleration, upon call
for redemption or otherwise.
"OFFICER'S CERTIFICATE" means a certificate signed by an
Authorized Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may
be counsel for the Company, or other counsel acceptable to the Trustee.
"OUTSTANDING", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities deemed to have been paid in accordance with
Section 701; and
(c) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it and the Company that such
Securities are held by a bona fide purchaser or purchasers in whose
hands such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this
Indenture, or the Outstanding Securities of any series or Tranche, have
given any request, demand, authorization, direction, notice, consent or
waiver hereunder or whether or not a quorum is present at a meeting of
Holders of Securities,
(x) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such
other obligor (unless the Company, such Affiliate or such obligor
owns all Securities Outstanding under this Indenture, or all
Outstanding Securities of each such series and each such Tranche,
as the case may be, determined without regard to this clause (x))
shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization, direction,
notice, consent or waiver or upon any such determination as to
the presence of a quorum, only Securities which the Trustee knows
to be so owned shall be so disregarded; provided, however, that
Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor;
(y) the principal amount of a Discount Security that shall
be deemed to be Outstanding for such purposes shall be the amount
of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of
the Maturity thereof pursuant to Section 802; and
(z) the principal amount of any Security which is
denominated in a currency other than Dollars or in a composite
currency that shall be deemed to be Outstanding for such purposes
shall be the amount of Dollars which could have been purchased by
the principal amount (or, in the case of a Discount Security, the
Dollar equivalent on the date determined as set forth below of
the amount determined as provided in (y) above) of such currency
or composite currency evidenced by such Security, in each such
case certified to the Trustee in an Officer's Certificate, based
(i) on the average of the mean of the buying and selling spot
rates quoted by three banks which are members of the New York
Clearing House Association selected by the Company in effect at
11:00 A.M. (New York time) in The City of New York on the fifth
Business Day preceding any such determination or (ii) if on such
fifth Business Day it shall not be possible or practicable to
obtain such quotations from such three banks, on such other
quotations or alternative methods of determination which shall be
as consistent as practicable with the method set forth in (i)
above;
provided, further, that, in the case of any Security the principal of which
is payable from time to time without presentment or surrender, the
principal amount of such Security that shall be deemed to be Outstanding at
any time for all purposes of this Indenture shall be the original principal
amount thereof less the aggregate amount of principal thereof theretofore
paid.
"PAYING AGENT" means any Person, including the Company,
authorized by the Company to pay the principal of and premium, if any, or
interest, if any, on any Securities on behalf of the Company.
"PERIODIC OFFERING" means an offering of Securities of a series
from time to time any or all of the specific terms of which Securities,
including without limitation the rate or rates of interest, if any,
thereon, the Stated Maturity or Maturities thereof and the redemption
provisions, if any, with respect thereto, are to be determined by the
Company or its agents upon the issuance of such Securities.
"PERSON" means any individual, corporation, partnership, joint
venture, trust or unincorporated organization or any Governmental Authority
thereof.
"PLACE OF PAYMENT", when used with respect to the Securities of
any series, or Tranche thereof, means the place or places, specified as
contemplated by Section 301, at which, subject to Section 602, principal of
and premium, if any, and interest, if any, on the Securities of such series
or Tranche are payable.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed (to the extent lawful) to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"REDEMPTION PRICE", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"REQUIRED CURRENCY" has the meaning specified in Section 311.
"RESPONSIBLE OFFICER", when used with respect to the Trustee,
means any officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any securities authenticated and
delivered under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SENIOR INDEBTEDNESS" means all obligations (other than non-
recourse obligations and the indebtedness issued under this Indenture) of,
or guaranteed or assumed by, the Company for borrowed money, including both
senior and subordinated indebtedness for borrowed money (other than the
Securities), or for the payment of money relating to any lease which is
capitalized on the consolidated balance sheet of the Company and its
subsidiaries in accordance with generally accepted accounting principles as
in effect from time to time, or evidenced by bonds, debentures, notes or
other similar instruments, and in each case, amendments, renewals,
extensions, modifications and refundings of any such indebtedness or
obligations, whether existing as of the date of this Indenture or
subsequently incurred by the Company.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest
on the Securities of any series means a date fixed by the Trustee pursuant
to Section 307.
"STATED INTEREST RATE" means a rate (whether fixed or variable)
at which an obligation by its terms is stated to bear simple interest. Any
calculation or other determination to be made under this Indenture by
reference to the Stated Interest Rate on a Security shall be made without
regard to the effective interest cost to the Company of such Security and
without regard to the Stated Interest Rate on, or the effective cost to the
Company of, any other indebtedness the Company's obligations in respect of
which are evidenced or secured in whole or in part by such Security.
"STATED MATURITY", when used with respect to any obligation or
any installment of principal thereof or interest thereon, means the date on
which the principal of such obligation or such installment of principal or
interest is stated to be due and payable (without regard to any provisions
for redemption, prepayment, acceleration, purchase or extension).
"TRANCHE" means a group of Securities which (a) are of the same
series and (b) have identical terms except as to principal amount and/or
date of issuance.
"TRUST INDENTURE ACT" means, as of any time, the Trust Indenture
Act of 1939, or any successor statute, as in effect at such time.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become
such with respect to one or more series of Securities pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder, and if at any
time there is more than one such Person, "Trustee" as used with respect to
the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"UNITED STATES" means the United States of America, its
Territories, its possessions and other areas subject to its political
jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall, if requested by
the Trustee, furnish to the Trustee an Officer's Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent,
if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which such
Officer's Certificate or opinion are based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless
such counsel knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever, subsequent to the receipt by the Trustee of any Board
Resolution, Officer's Certificate, Opinion of Counsel or other document or
instrument, a clerical, typographical or other inadvertent or unintentional
error or omission shall be discovered therein, a new document or instrument
may be substituted therefor in corrected form with the same force and
effect as if originally filed in the corrected form and, irrespective of
the date or dates of the actual execution and/or delivery thereof, such
substitute document or instrument shall be deemed to have been executed
and/or delivered as of the date or dates required with respect to the
document or instrument for which it is substituted. Anything in this
Indenture to the contrary notwithstanding, if any such corrective document
or instrument indicates that action has been taken by or at the request of
the Company which could not have been taken had the original document or
instrument not contained such error or omission, the action so taken shall
not be invalidated or otherwise rendered ineffective but shall be and
remain in full force and effect, except to the extent that such action was
a result of willful misconduct or bad faith. Without limiting the
generality of the foregoing, any Securities issued under the authority of
such defective document or instrument shall nevertheless be the valid
obligations of the Company entitled to the benefits of this Indenture
equally and ratably with all other Outstanding Securities, except as
aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, election, waiver or other action provided by this Indenture
to be made, given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing or,
alternatively, may be embodied in and evidenced by the record of
Holders voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called and held
in accordance with the provisions of Article Thirteen, or a
combination of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments
and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 901) conclusive in
favor of the Trustee and the Company, if made in the manner provided
in this Section. The record of any meeting of Holders shall be proved
in the manner provided in Section 1306.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that
the individual signing such instrument or writing acknowledged to him
the execution thereof or may be proved in any other manner which the
Trustee and the Company deem sufficient. Where such execution is by a
signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) The principal amount (except as otherwise contemplated in
clause (y) of the proviso to the definition of Outstanding) and serial
numbers of Securities held by any Person, and the date of holding the
same, shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind every
future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
(e) Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite percentage of
principal amount of Securities for the action contemplated by such
instruments, any such instrument executed and delivered by or on
behalf of a Holder may be revoked with respect to any or all of such
Securities by written notice by such Holder or any subsequent Holder,
proven in the manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may, and shall if
required by the Trustee, bear a notation in form approved by the
Trustee as to any action taken by such Act of Holders. If the Company
shall so determine, new Securities of any series, or any Tranche
thereof, so modified as to conform, in the opinion of the Trustee and
the Company, to such action may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
(g) If the Company shall solicit from Holders any request,
demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, by Board Resolution, fix in
advance a record date for the determination of Holders entitled to
give such request, demand, authorization, direction, notice, consent,
waiver or other Act, but the Company shall have no obligation to do
so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record
at the close of business on the record date shall be deemed to be
Holders for the purposes of determining whether Holders of the
requisite proportion of the Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of the record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
election, waiver or Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or filed with,
the Trustee by any Holder or by the Company, or the Company by the Trustee
or by any Holder, shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and delivered personally
to an officer or other responsible employee of the addressee, or
transmitted by facsimile transmission, telex or other direct written
electronic means to such telephone number or other electronic
communications address as the parties hereto shall from time to time
designate, or transmitted by registered mail, charges prepaid, to the
applicable address set opposite such party's name below or to such other
address as either party hereto may from time to time designate:
If to the Trustee, to:
Bankers Trust Company
Four Albany Street
New York, New York 10006
Attention: Scott Thiel, Assistant Treasurer
Telephone: (212) 250-8327
Telecopy: (212) 250-6961
If to the Company, to:
Carolina Power & Light Company
411 Fayetteville Street
Raleigh, North Carolina 27601-1768
Attention: Margaret S. Glass, Vice President and Treasurer
Telephone: (919) 546-6373
Telecopy: (919) 546-7826
Any communication contemplated herein shall be deemed to have
been made, given, furnished and filed if personally delivered, on the date
of delivery, if transmitted by facsimile transmission, telex or other
direct written electronic means, on the date of transmission, and if
transmitted by registered mail, on the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given, and shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event,
at the address of such Holder as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of such notice with
respect to other Holders.
Any notice required by this Indenture may be waived in writing by
the Person entitled to receive such notice, either before or after the
event otherwise to be specified therein, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or conflicts
with another provision hereof which is required or deemed to be included in
this Indenture by, or is otherwise governed by, any of the provisions of
the Trust Indenture Act, such other provision shall control; and if any
provision hereof otherwise conflicts with the Trust Indenture Act, the
Trust Indenture Act shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this Indenture and the Table
of Contents are for convenience only and shall not affect the construction
hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities, express or implied,
shall give to any Person, other than the parties hereto, their successors
hereunder, the Holders, and so long as the notice described in Section 1513
hereof has not been given, the holders of Senior Indebtedness, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York, except to
the extent that the law of any other jurisdiction shall be mandatorily
applicable.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of
the Securities other than a provision in Securities of any series, or any
Tranche thereof, or in the Board Resolution or Officer's Certificate which
establishes the terms of the Securities of such series or Tranche, which
specifically states that such provision shall apply in lieu of this
Section) payment of interest or principal and premium, if any, need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment, except that if such
Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day in each case with the same
force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, and, if such payment is made or duly
provided for on such Business Day, no interest shall accrue on the amount
so payable for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, to such Business
Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall be in
substantially the form or forms thereof established in the indenture
supplemental hereto establishing such series or in a Board Resolution
establishing such series, or in an Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, in each case with such
appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form or forms of Securities of any series are
established in a Board Resolution or in an Officer's Certificate pursuant
to a Board Resolution, such Board Resolution and Officer's Certificate, if
any, shall be delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication and
delivery of such Securities.
Unless otherwise specified as contemplated by Section 301, the
Securities of each series shall be issuable in registered form without
coupons. The definitive Securities shall be produced in such manner as
shall be determined by the officers executing such Securities, as evidenced
by their execution thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
_________________________________
as Trustee
By: _____________________________
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. Prior to the
authentication and delivery of Securities of any series there shall be
established by specification in a supplemental indenture or in a Board
Resolution, or in an Officer's Certificate pursuant to a supplemental
indenture or a Board Resolution:
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all other
series);
(b) any limit upon the aggregate principal amount of the
Securities of such series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 304, 305,
306, 406 or 1206 and, except for any Securities which, pursuant to
Section 303, are deemed never to have been authenticated and delivered
hereunder);
(c) the Person or Persons (without specific identification) to
whom interest on Securities of such series, or any Tranche thereof,
shall be payable on any Interest Payment Date, if other than the
Persons in whose names such Securities (or one or more Predecessor
Securities) are registered at the close of business on the Regular
Record Date for such interest;
(d) the date or dates on which the principal of the Securities
of such series or any Tranche thereof, is payable or any formulary or
other method or other means by which such date or dates shall be
determined, by reference or otherwise (without regard to any
provisions for redemption, prepayment, acceleration, purchase or
extension);
(e) the rate or rates at which the Securities of such series, or
any Tranche thereof, shall bear interest, if any (including the rate
or rates at which overdue principal shall bear interest, if different
from the rate or rates at which such Securities shall bear interest
prior to Maturity, and, if applicable, the rate or rates at which
overdue premium or interest shall bear interest, if any), or any
formulary or other method or other means by which such rate or rates
shall be determined, by reference or otherwise; the date or dates from
which such interest shall accrue; the Interest Payment Dates on which
such interest shall be payable and the Regular Record Date, if any,
for the interest payable on such Securities on any Interest Payment
Date; the right of the Company, if any, to extend the interest payment
periods and the duration of any such extension as contemplated by
Section 312; and the basis of computation of interest, if other than
as provided in Section 310;
(f) the place or places at which or methods by which (1) the
principal of and premium, if any, and interest, if any, on Securities
of such series, or any Tranche thereof, shall be payable, (2)
registration of transfer of Securities of such series, or any Tranche
thereof, may be effected, (3) exchanges of Securities of such series,
or any Tranche thereof, may be effected and (4) notices and demands to
or upon the Company in respect of the Securities of such series, or
any Tranche thereof, and this Indenture may be served; the Security
Registrar for such series; and if such is the case, that the principal
of such Securities shall be payable without presentment or surrender
thereof;
(g) the period or periods within which, or the date or dates on
which, the price or prices at which and the terms and conditions upon
which the Securities of such series, or any Tranche thereof, may be
redeemed, in whole or in part, at the option of the Company and any
restrictions on such redemptions, including but not limited to a
restriction on a partial redemption by the Company of the Securities
of any series, or any Tranche thereof, resulting in delisting of such
Securities from any national exchange;
(h) the obligation or obligations, if any, of the Company to
redeem or purchase the Securities of such series, or any Tranche
thereof, pursuant to any sinking fund or other mandatory redemption
provisions or at the option of a Holder thereof and the period or
periods within which or the date or dates on which, the price or
prices at which and the terms and conditions upon which such
Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and applicable exceptions to the
requirements of Section 404 in the case of mandatory redemption or
redemption at the option of the Holder;
(i) the denominations in which Securities of such series, or any
Tranche thereof, shall be issuable if other than denominations of
$1,000 and any integral multiple thereof;
(j) the currency or currencies, including composite currencies,
in which payment of the principal of and premium, if any, and
interest, if any, on the Securities of such series, or any Tranche
thereof, shall be payable (if other than in Dollars);
(k) if the principal of or premium, if any, or interest, if any,
on the Securities of such series, or any Tranche thereof, are to be
payable, at the election of the Company or a Holder thereof, in a coin
or currency other than that in which the Securities are stated to be
payable, the period or periods within which and the terms and
conditions upon which, such election may be made;
(l) if the principal of or premium, if any, or interest on the
Securities of such series, or any Tranche thereof, are to be payable,
or are to be payable at the election of the Company or a Holder
thereof, in securities or other property, the type and amount of such
securities or other property, or the formulary or other method or
other means by which such amount shall be determined, and the period
or periods within which, and the terms and conditions upon which, any
such election may be made;
(m) if the amount payable in respect of principal of or premium,
if any, or interest, if any, on the Securities of such series, or any
Tranche thereof, may be determined with reference to an index or other
fact or event ascertainable outside this Indenture, the manner in
which such amounts shall be determined to the extent not established
pursuant to clause (e) of this paragraph;
(n) if other than the principal amount thereof, the portion of
the principal amount of Securities of such series, or any Tranche
thereof, which shall be payable upon declaration of acceleration of
the Maturity thereof pursuant to Section 802;
(o) any Events of Default, in addition to those specified in
Section 801, with respect to the Securities of such series, and any
covenants of the Company for the benefit of the Holders of the
Securities of such series, or any Tranche thereof, in addition to
those set forth in Article Six;
(p) the terms, if any, pursuant to which the Securities of such
series, or any Tranche thereof, may be converted into or exchanged for
shares of capital stock or other securities of the Company or any
other Person;
(q) the obligations or instruments, if any, which shall be
considered to be Eligible Obligations in respect of the Securities of
such series, or any Tranche thereof, denominated in a currency other
than Dollars or in a composite currency, and any additional or
alternative provisions for the reinstatement of the Company's
indebtedness in respect of such Securities after the satisfaction and
discharge thereof as provided in Section 701;
(r) if the Securities of such series, or any Tranche thereof,
are to be issued in global form, (i) any limitations on the rights of
the Holder or Holders of such Securities to transfer or exchange the
same or to obtain the registration of transfer thereof, (ii) any
limitations on the rights of the Holder or Holders thereof to obtain
certificates therefor in definitive form in lieu of temporary form and
(iii) any and all other matters incidental to such Securities;
(s) if the Securities of such series, or any Tranche thereof,
are to be issuable as bearer securities, any and all matters
incidental thereto which are not specifically addressed in a
supplemental indenture as contemplated by clause (g) of Section 1201;
(t) to the extent not established pursuant to clause (r) of this
paragraph, any limitations on the rights of the Holders of the
Securities of such Series, or any Tranche thereof, to transfer or
exchange such Securities or to obtain the registration of transfer
thereof; and if a service charge will be made for the registration of
transfer or exchange of Securities of such series, or any Tranche
thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities of such
series, or any Tranche thereof; and
(v) any other terms of the Securities of such series, or any
Tranche thereof, not inconsistent with the provisions of this
Indenture.
The Securities of each series, or any Tranche thereof, shall be
subordinated in the right of payment to Senior Indebtedness as provided in
Article Fifteen.
With respect to Securities of a series subject to a Periodic
Offering, the indenture supplemental hereto or the Board Resolution which
establishes such series, or the Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, as the case may be, may provide
general terms or parameters for Securities of such series and provide
either that the specific terms of Securities of such series, or any Tranche
thereof, shall be specified in a Company Order or that such terms shall be
determined by the Company or its agents in accordance with procedures
specified in a Company Order as contemplated by the clause (b) of Section
303.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, the Securities
of each series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, the Securities
shall be executed on behalf of the Company by an Authorized Officer and may
have the corporate seal of the Company affixed thereto or reproduced
thereon attested by any other Authorized Officer. The signature of any or
all of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the time of execution Authorized Officers of the
Company shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication
and delivery of such Securities or did not hold such offices at the date of
such Securities.
The Trustee shall authenticate and deliver Securities of a
series, for original issue, at one time or from time to time in accordance
with the Company Order referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the form or forms
and terms of such series, as provided in Sections 201 and 301;
(b) a Company Order requesting the authentication and delivery
of such Securities and, to the extent that the terms of such
Securities shall not have been established in an indenture
supplemental hereto or in a Board Resolution, or in an Officer's
Certificate pursuant to a supplemental indenture or Board Resolution,
all as contemplated by Sections 201 and 301, either (i) establishing
such terms or (ii) in the case of Securities of a series subject to a
Periodic Offering, specifying procedures, acceptable to the Trustee,
by which such terms are to be established (which procedures may
provide, to the extent acceptable to the Trustee, for authentication
and delivery pursuant to oral or electronic instructions from the
Company or any agent or agents thereof, which oral instructions are to
be promptly confirmed electronically or in writing), in either case in
accordance with the instrument or instruments delivered pursuant to
clause (a) above;
(c) the Securities of such series, executed on behalf of the
Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) that the form or forms of such Securities have been
duly authorized by the Company and have been established in
conformity with the provisions of this Indenture;
(ii) that the terms of such Securities have been duly
authorized by the Company and have been established in conformity
with the provisions of this Indenture; and
(iii) that such Securities, when authenticated and
delivered by the Trustee and issued and delivered by the Company
in the manner and subject to any conditions specified in such
Opinion of Counsel, will have been duly issued under this
Indenture and will constitute valid and legally binding
obligations of the Company, entitled to the benefits provided by
this Indenture, and enforceable in accordance with their terms,
subject, as to enforcement, to laws relating to or affecting
generally the enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency laws and to general
principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
provided, however, that, with respect to Securities of a series subject to
a Periodic Offering, the Trustee shall be entitled to receive such Opinion
of Counsel only once at or prior to the time of the first authentication of
such Securities (provided that such Opinion of Counsel addresses the
authentication and delivery of all Securities of such series) and that in
lieu of the opinions described in clauses (ii) and (iii) above Counsel may
opine that:
(x) when the terms of such Securities shall have been
established pursuant to a Company Order or Orders or pursuant to
such procedures (acceptable to the Trustee) as may be specified
from time to time by a Company Order or Orders, all as
contemplated by and in accordance with the instrument or
instruments delivered pursuant to clause (a) above, such terms
will have been duly authorized by the Company and will have been
established in conformity with the provisions of this Indenture;
and
(y) such Securities, when authenticated and delivered by
the Trustee in accordance with this Indenture and the Company
Order or Orders or specified procedures referred to in paragraph
(x) above and issued and delivered by the Company in the manner
and subject to any conditions specified in such Opinion of
Counsel, will have been duly issued under this Indenture and will
constitute valid and legally binding obligations of the Company,
entitled to the benefits provided by the Indenture, and
enforceable in accordance with their terms, subject, as to
enforcement, to laws relating to or affecting generally the
enforcement of creditors' rights, including, without limitation,
bankruptcy and insolvency laws and to general principles of
equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization by the
Company of any of such Securities, the form and terms thereof and the
legality, validity, binding effect and enforceability thereof, upon the
Opinion of Counsel and other documents delivered pursuant to Sections 201
and 301 and this Section, as applicable, at or prior to the time of the
first authentication of Securities of such series unless and until such
opinion or other documents have been superseded or revoked or expire by
their terms. In connection with the authentication and delivery of
Securities of a series subject to a Periodic Offering, the Trustee shall be
entitled to assume that the Company's instructions to authenticate and
deliver such Securities do not violate any rules, regulations or orders of
any Governmental Authority having jurisdiction over the Company.
If the form or terms of the Securities of any series have been
established by or pursuant to a Board Resolution or an Officer's
Certificate as permitted by Sections 201 or 301, the Trustee shall not be
required to authenticate such Securities if the issuance of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, each Security
shall be dated the date of its authentication.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, no Security
shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or its agent by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder to the Company, or any Person acting
on its behalf, but shall never have been issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation
as provided in Section 309 together with a written statement (which need
not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series,
or any Tranche thereof, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities; provided, however, that temporary Securities need not
recite specific redemption, sinking fund, conversion or exchange
provisions.
Unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, after the
preparation of definitive Securities of such series or Tranche, the
temporary Securities of such series or Tranche shall be exchangeable,
without charge to the Holder thereof, for definitive Securities of such
series or Tranche upon surrender of such temporary Securities at the office
or agency of the Company maintained pursuant to Section 602 in a Place of
Payment for such Securities. Upon such surrender of temporary Securities,
the Company shall, except as aforesaid, execute and the Trustee shall
authenticate and deliver in exchange therefor definitive Securities of the
same series and Tranche, of authorized denominations and of like tenor and
aggregate principal amount.
Until exchanged in full as hereinabove provided, temporary
Securities shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities of the same series and Tranche and
of like tenor authenticated and delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept in each office designated
pursuant to Section 602, with respect to the Securities of each series or
any Tranche thereof, a register (all registers kept in accordance with this
Section being collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Securities of such series or
Tranche and the registration of transfer thereof. The Company shall
designate one Person to maintain the Security Register for the Securities
of each series on a consolidated basis, and such Person is referred to
herein, with respect to such series, as the "Security Registrar." Anything
herein to the contrary notwithstanding, the Company may designate one or
more of its offices as an office in which a register with respect to the
Securities of one or more series, or any Tranche or Tranches thereof, shall
be maintained, and the Company may designate itself the Security Registrar
with respect to one or more of such series. The Security Register shall be
open for inspection by the Trustee and the Company at all reasonable times.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, upon
surrender for registration of transfer of any Security of such series or
Tranche at the office or agency of the Company maintained pursuant to
Section 602 in a Place of Payment for such series or Tranche, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Securities of
the same series and Tranche, of authorized denominations and of like tenor
and aggregate principal amount.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, any
Security of such series or Tranche may be exchanged at the option of the
Holder, for one or more new Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at any such office or
agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities delivered upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Trustee
or the Security Registrar) be duly endorsed or shall be accompanied by a
written instrument of transfer in form satisfactory to the Company, the
Trustee or the Security Registrar, as the case may be, duly executed by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section 301 with
respect to Securities of any series, or any Tranche thereof, no service
charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 304, 406 or 1206 not involving any
transfer.
The Company shall not be required to execute or to provide for
the registration of transfer of or the exchange of (a) Securities of any
series, or any Tranche thereof, during a period of 15 days immediately
preceding the date notice is to be given identifying the serial numbers of
the Securities of such series or Tranche called for redemption or (b) any
Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series, and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a)
evidence to their satisfaction of the ownership of and the destruction,
loss or theft of any Security and (b) such security or indemnity as may be
reasonably required by them to save each of them and any agent of either of
them harmless, then, in the absence of notice to the Company or the Trustee
that such Security is held by a Person purporting to be the owner of such
Security, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and Tranche, and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new
Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Security shall be at any time enforceable by
anyone other than the Holder of such new Security, and any such new
Security shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of such series duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, interest
on any Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Subject to Section 312, any interest on any Security of any
series which is payable, but is not punctually paid or duly provided for,
on any Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the related Regular Record
Date by virtue of having been such Holder, and such Defaulted Interest may
be paid by the Company, at its election in each case, as provided in clause
(a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a date (herein called a "Special Record Date")
for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall promptly cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at the address of such Holder as it appears
in the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date.
(b) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section
305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Security is registered as
the absolute owner of such Security for the purpose of receiving payment of
principal of and premium, if any, and (subject to Sections 305 and 307)
interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.
All Securities surrendered for payment, redemption, registration
of transfer or exchange shall, if surrendered to any Person other than the
Security Registrar, be delivered to the Security Registrar and, if not
theretofore canceled, shall be promptly canceled by the Security Registrar.
The Company may at any time deliver to the Security Registrar for
cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever or
which the Company shall not have issued and sold, and all Securities so
delivered shall be promptly canceled by the Security Registrar. No
Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Security
Registrar shall be disposed of in accordance with a Company Order delivered
to the Security Registrar and the Trustee, and the Security Registrar shall
promptly deliver a certificate of disposition to the Trustee and the
Company unless, by a Company Order, similarly delivered, the Company shall
direct that canceled Securities be returned to it. The Security Registrar
shall promptly deliver evidence of any cancellation of a Security in
accordance with this Section 309 to the Trustee and the Company.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, or any Tranche thereof, interest on the
Securities of each series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months and on the basis of the actual number of
days elapsed within any month in relation to the deemed 30 days of such
month.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Securities of any series, or any Tranche
thereof, denominated in any currency other than Dollars or in a composite
currency (the "Required Currency"), except as otherwise specified with
respect to such Securities as contemplated by Section 301, the obligation
of the Company to make any payment of the principal thereof, or the premium
or interest thereon, shall not be discharged or satisfied by any tender by
the Company, or recovery by the Trustee, in any currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the Trustee timely holding the full amount of the Required
Currency then due and payable. If any such tender or recovery is in a
currency other than the Required Currency, the Trustee may take such
actions as it considers appropriate to exchange such currency for the
Required Currency. The costs and risks of any such exchange, including
without limitation the risks of delay and exchange rate fluctuation, shall
be borne by the Company, the Company shall remain fully liable for any
shortfall or delinquency in the full amount of Required Currency then due
and payable, and in no circumstances shall the Trustee be liable therefor
except in the case of its negligence or willful misconduct.
SECTION 312. EXTENSION OF INTEREST PAYMENT.
The Company shall have the right at any time, so long as the
Company is not in default in the payment of interest on the Securities of
any series hereunder, to extend interest payment periods on all Securities
of one or more series, or Tranches thereof, if so specified as contemplated
by Section 301 with respect to such Securities and upon such terms as may
be specified as contemplated by Section 301 with respect to such
Securities.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which are
redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by
Section 301 for Securities of such series or Tranche) in accordance with
this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or an Officer's Certificate. The Company
shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such Redemption Date and of the principal amount of
such Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture or (b) pursuant to an election of the Company which is subject to
a condition specified in the terms of such Securities, the Company shall
furnish the Trustee with an Officer's Certificate evidencing compliance
with such restriction or condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series, or any Tranche
thereof, are to be redeemed, the particular Securities to be redeemed shall
be selected by the Security Registrar from the Outstanding Securities of
such series or Tranche not previously called for redemption, by such method
as shall be provided for any particular series, or, in the absence of any
such provision, by such method of random selection as the Security
Registrar shall deem fair and appropriate and which may, in any case,
provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of such series or Tranche or any
integral multiple thereof) of the principal amount of Securities of such
series or Tranche of a denomination larger than the minimum authorized
denomination for Securities of such series or Tranche; provided, however,
that if, as indicated in an Officer's Certificate, the Company shall have
offered to purchase all or any principal amount of the Securities then
Outstanding of any series, or any Tranche thereof, and less than all of
such Securities as to which such offer was made shall have been tendered to
the Company for such purchase, the Security Registrar, if so directed by
Company Order, shall select for redemption all or any principal amount of
such Securities which have not been so tendered.
The Security Registrar shall promptly notify the Company and the
Trustee in writing of the Securities selected for redemption and, in the
case of any Securities selected to be redeemed in part, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in
Section 106 to the Holders of the Securities to be redeemed not less than
30 nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series or Tranche are
to be redeemed, the identification of the particular Securities to be
redeemed and the portion of the principal amount of any Security to be
redeemed in part,
(d) that on the Redemption Date the Redemption Price, together
with accrued interest, if any, to the Redemption Date, will become due
and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued interest,
if any, unless it shall have been specified as contemplated by Section
301 with respect to such Securities that such surrender shall not be
required,
(f) that the redemption is for a sinking or other fund, if such
is the case, and
(g) such other matters as the Company shall deem desirable or
appropriate.
Unless otherwise specified with respect to any Securities in
accordance with Section 301, with respect to any notice of redemption of
Securities at the election of the Company, unless, upon the giving of such
notice, such Securities shall be deemed to have been paid in accordance
with Section 701, such notice may state that such redemption shall be
conditional upon the receipt by the Paying Agent or Agents for such
Securities, on or prior to the date fixed for such redemption, of money
sufficient to pay the principal of and premium, if any, and interest, if
any, on such Securities and that if such money shall not have been so
received such notice shall be of no force or effect and the Company shall
not be required to redeem such Securities. In the event that such notice
of redemption contains such a condition and such money is not so received,
the redemption shall not be made and within a reasonable time thereafter
notice shall be given, in the manner in which the notice of redemption was
given, that such money was not so received and such redemption was not
required to be made, and the Paying Agent or Agents for the Securities
otherwise to have been redeemed shall promptly return to the Holders
thereof any of such Securities which had been surrendered for payment upon
such redemption.
Notice of redemption of Securities to be redeemed at the election
of the Company, and any notice of non-satisfaction of a condition for
redemption as aforesaid, shall be given by the Company or, at the Company's
request, by the Security Registrar in the name and at the expense of the
Company. Notice of mandatory redemption of Securities shall be given by
the Security Registrar in the name and at the expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities or portions thereof so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price therein specified, and
from and after such date (unless, in the case of an unconditional notice of
redemption, the Company shall default in the payment of the Redemption
Price and accrued interest, if any) such Securities or portions thereof, if
interest-bearing, shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with such notice, such Security or
portion thereof shall be paid by the Company at the Redemption Price,
together with accrued interest, if any, to the Redemption Date; provided,
however, that no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such Security; and
provided, further, that except as otherwise specified as contemplated by
Section 301 with respect to such Security, any installment of interest on
any Security the Stated Maturity of which installment is on or prior to the
Redemption Date shall be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the close of business on
the related Regular Record Date according to the terms of such Security and
subject to the provisions of Section 307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be redeemed only
in part at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder
of such Security, without service charge, a new Security or Securities of
the same series and Tranche, of any authorized denomination requested by
such Holder and of like tenor and in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security
so surrendered.
ARTICLE FIVE
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of the Securities of any series, or any Tranche
thereof, except as otherwise specified as contemplated by Section 301 for
Securities of such series or Tranche.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series, or any Tranche thereof, is herein
referred to as a "mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms of Securities of
any series, or any Tranche thereof, is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, or any Tranche thereof, the cash amount of any sinking fund payment
may be subject to reduction as provided in Section 502. Each sinking fund
payment shall be applied to the redemption of Securities of the series or
Tranche in respect of which it was made as provided for by the terms of
such Securities.
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (a) may deliver to the Trustee Outstanding Securities
(other than any previously called for redemption) of a series or Tranche in
respect of which a mandatory sinking fund payment is to be made and (b) may
apply as a credit Securities of such series or Tranche which have been
redeemed either at the election of the Company pursuant to the terms of
such Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of such mandatory sinking fund payment;
provided, however, that no Securities shall be applied in satisfaction of a
mandatory sinking fund payment if such Securities shall have been
previously so applied. Securities so applied shall be received and
credited for such purpose by the Trustee at the Redemption Price specified
in such Securities for redemption through operation of the sinking fund and
the amount of such mandatory sinking fund payment shall be reduced
accordingly.
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for
the Securities of any series, or any Tranche thereof, the Company shall
deliver to the Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory sinking fund
payment for such series or Tranche;
(b) the amount, if any, of the optional sinking fund payment to
be made together with such mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund payment
which is to be satisfied by the payment of cash;
(e) the portion, if any, of such aggregate sinking fund payment
which is to be satisfied by delivering and crediting Securities of
such series or Tranche pursuant to Section 502 and stating the basis
for such credit and that such Securities have not previously been so
credited, and the Company shall also deliver to the Trustee any
Securities to be so delivered. If the Company shall not deliver such
Officer's Certificate, the next succeeding sinking fund payment for
such series or Tranche shall be made entirely in cash in the amount of
the mandatory sinking fund payment. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Securities
to be redeemed upon such sinking fund payment date in the manner
specified in Section 403 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the
manner provided in Section 404. Such notice having been duly given,
the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 405 and 406.
ARTICLE SIX
COVENANTS
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall pay the principal of and premium, if any, and
interest, if any, on the Securities of each series in accordance with the
terms of such Securities and this Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for the
Securities of each series, or any Tranche thereof, an office or agency
where payment of such Securities shall be made, where the registration of
transfer or exchange of such Securities may be effected and where notices
and demands to or upon the Company in respect of such Securities and this
Indenture may be served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the location, of each such
office or agency and prompt notice to the Holders of any such change in the
manner specified in Section 106. If at any time the Company shall fail to
maintain any such required office or agency in respect of Securities of any
series, or any Tranche thereof, or shall fail to furnish the Trustee with
the address thereof, payment of such Securities shall be made, registration
of transfer or exchange thereof may be effected and notices and demands in
respect thereof may be served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent for all such
purposes in any such event.
The Company may also from time to time designate one or more
other offices or agencies with respect to the Securities of one or more
series, or any Tranche thereof, for any or all of the foregoing purposes
and may from time to time rescind such designations; provided, however,
that, unless otherwise specified as contemplated by Section 301 with
respect to the Securities of such series or Tranche, no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency for such purposes in each Place of Payment for
such Securities in accordance with the requirements set forth above. The
Company shall give prompt written notice to the Trustee, and prompt notice
to the Holders in the manner specified in Section 106, of any such
designation or rescission and of any change in the location of any such
other office or agency.
Anything herein to the contrary notwithstanding, any office or
agency required by this Section may be maintained at an office of the
Company, in which event the Company shall perform all functions to be
performed at such office or agency.
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to the Securities of any series, or any Tranche thereof, it shall,
on or before each due date of the principal of and premium, if any, and
interest, if any, on any of such Securities, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal and premium or interest so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided. The
Company shall promptly notify the Trustee of any failure by the Company (or
any other obligor on such Securities) to make any payment of principal of
or premium, if any, or interest, if any, on such Securities.
Whenever the Company shall have one or more Paying Agents for the
Securities of any series, or any Tranche thereof, it shall, on or before
each due date of the principal of and premium, if any, and interest, if
any, on such Securities, deposit with such Paying Agents sums sufficient
(without duplication) to pay the principal and premium or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company shall promptly notify the Trustee of any
failure by it so to act.
The Company shall cause each Paying Agent for the Securities of
any series, or any Tranche thereof, other than the Company or the Trustee,
to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment of the principal of
and premium, if any, or interest, if any, on such Securities in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the Company (or
any other obligor upon such Securities) to make any payment of
principal of or premium, if any, or interest, if any, on such
Securities; and
(c) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent and furnish to the Trustee
such information as it possesses regarding the names and addresses of
the Persons entitled to such sums.
The Company may at any time pay, or by Company Order direct any
Paying Agent to pay, to the Trustee all sums held in trust by the Company
or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such
Paying Agent and, if so stated in a Company Order delivered to the Trustee,
in accordance with the provisions of Article Seven; and, upon such payment
by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of and
premium, if any, or interest, if any, on any Security and remaining
unclaimed for two years after such principal and premium, if any, or
interest has become due and payable shall be paid to the Company on Company
Request, or, if then held by the Company, shall be discharged from such
trust; and, upon such payment or discharge, the Holder of such Security
shall, as an unsecured general creditor and not as a Holder of an
Outstanding Security, look only to the Company for payment of the amount so
due and payable and remaining unpaid, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of
the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any
such payment to the Company, may at the expense of the Company cause to be
mailed, on one occasion only, notice to such Holder that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such mailing, any unclaimed balance of such
money then remaining will be paid to the Company.
SECTION 604. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article Eleven, the
Company shall do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence.
SECTION 605. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) all its properties
used or useful in the conduct of its business to be maintained and kept in
good condition, repair and working order and shall cause (or, with respect
to property owned in common with others, make reasonable effort to cause)
to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the Company, may be
necessary so that the business carried on in connection therewith may be
properly conducted; provided, however, that nothing in this Section shall
prevent the Company from discontinuing, or causing the discontinuance of,
the operation and maintenance of any of its properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct
of its business.
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than June 1 in each year, commencing June 1, 1995, the
Company shall deliver to the Trustee an Officer's Certificate which need
not comply with Section 102, executed by the principal executive officer,
the principal financial officer or the principal accounting officer of the
Company, as to such officer's knowledge of the Company's compliance with
all conditions and covenants under this Indenture, such compliance to be
determined without regard to any period of grace or requirement of notice
under this Indenture.
SECTION 607. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in (a) Section 602 or any
additional covenant or restriction specified with respect to the Securities
of any series, or any Tranche thereof, as contemplated by Section 301 if
before the time for such compliance the Holders of at least a majority in
aggregate principal amount of the Outstanding Securities of all series and
Tranches with respect to which compliance with Section 602 or such
additional covenant or restriction is to be omitted, considered as one
class, shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or
condition and (b) Section 604, 605 or Article Eleven if before the time for
such compliance the Holders of at least a majority in principal amount of
Securities Outstanding under this Indenture shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance
with such term, provision or condition; but, in the case of (a) or (b), no
such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the
Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the principal
amount thereof, shall be deemed to have been paid for all purposes of this
Indenture, and the entire indebtedness of the Company in respect thereof
shall be deemed to have been satisfied and discharged, if there shall have
been irrevocably deposited with the Trustee or any Paying Agent (other than
the Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of such
Securities or portions thereof, Eligible Obligations, which shall not
contain provisions permitting the redemption or other prepayment
thereof at the option of the issuer thereof, the principal of and the
interest on which when due, without any regard to reinvestment
thereof, will provide moneys which, together with the money, if any,
deposited with or held by the Trustee or such Paying Agent, shall be
sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
to pay when due the principal of and premium, if any, and interest, if any,
due and to become due on such Securities or portions thereof on or prior to
Maturity; provided, however, that in the case of the provision for payment
or redemption of less than all the Securities of any series or Tranche,
such Securities or portions thereof shall have been selected by the
Security Registrar as provided herein and, in the case of a redemption, the
notice requisite to the validity of such redemption shall have been given
or irrevocable authority shall have been given by the Company to the
Trustee to give such notice, under arrangements satisfactory to the
Trustee; and provided, further, that the Company shall have delivered to
the Trustee and such Paying Agent:
(x) if such deposit shall have been made prior to the
Maturity of such Securities, a Company Order stating that the
money and Eligible Obligations deposited in accordance with this
Section shall be held in trust, as provided in Section 703;
(y) if Eligible Obligations shall have been deposited, an
Opinion of Counsel that the obligations so deposited constitute
Eligible Obligations and do not contain provisions permitting the
redemption or other prepayment at the option of the issuer
thereof, and an opinion of an independent public accountant of
nationally recognized standing, selected by the Company, to the
effect that the requirements set forth in clause (b) above have
been satisfied; and
(z) if such deposit shall have been made prior to the
Maturity of such Securities, an Officer's Certificate stating the
Company's intention that, upon delivery of such Officer's
Certificate, its indebtedness in respect of such Securities or
portions thereof will have been satisfied and discharged as
contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both, in
accordance with this Section, together with the documents required by
clauses (x), (y) and (z) above, the Trustee shall, upon receipt of a
Company Request, acknowledge in writing that the Security or Securities or
portions thereof with respect to which such deposit was made are deemed to
have been paid for all purposes of this Indenture and that the entire
indebtedness of the Company in respect thereof has been satisfied and
discharged as contemplated in this Section. In the event that all of the
conditions set forth in the preceding paragraph shall have been satisfied
in respect of any Securities or portions thereof except that, for any
reason, the Officer's Certificate specified in clause (z) shall not have
been delivered, such Securities or portions thereof shall nevertheless be
deemed to have been paid for all purposes of this Indenture, and the
Holders of such Securities or portions thereof shall nevertheless be no
longer entitled to the benefits of this Indenture or of any of the
covenants of the Company under Article Six (except the covenants contained
in Sections 602 and 603) or any other covenants made in respect of such
Securities or portions thereof as contemplated by Section 301, but the
indebtedness of the Company in respect of such Securities or portions
thereof shall not be deemed to have been satisfied and discharged prior to
Maturity for any other purpose, and the Holders of such Securities or
portions thereof shall continue to be entitled to look to the Company for
payment of the indebtedness represented thereby; and, upon Company Request,
the Trustee shall acknowledge in writing that such Securities or portions
thereof are deemed to have been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the Securities
of any series, or any Tranche thereof, is to be provided for in the manner
and with the effect provided in this Section, the Security Registrar shall
select such Securities, or portions of principal amount thereof, in the
manner specified by Section 403 for selection for redemption of less than
all the Securities of a series or Tranche.
In the event that Securities which shall be deemed to have been
paid for purposes of this Indenture, and, if such is the case, in respect
of which the Company's indebtedness shall have been satisfied and
discharged, all as provided in this Section do not mature and are not to be
redeemed within the sixty (60) day period commencing with the date of the
deposit of moneys or Eligible Obligations, as aforesaid, the Company shall,
as promptly as practicable, give a notice, in the same manner as a notice
of redemption with respect to such Securities, to the Holders of such
Securities to the effect that such deposit has been made and the effect
thereof.
Notwithstanding that any Securities shall be deemed to have been
paid for purposes of this Indenture, as aforesaid, the obligations of the
Company and the Trustee in respect of such Securities under Sections 304,
305, 306, 404, 503 (as to notice of redemption), 602, 603, 907 and 915 and
this Article Seven shall survive.
The Company shall pay, and shall indemnify the Trustee or any
Paying Agent with which Eligible Obligations shall have been deposited as
provided in this Section against, any tax, fee or other charge imposed on
or assessed against such Eligible Obligations or the principal or interest
received in respect of such Eligible Obligations, including, but not
limited to, any such tax payable by any entity deemed, for tax purposes, to
have been created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at any
time after a Security would be deemed to have been paid for purposes of
this Indenture, and, if such is the case, the Company's indebtedness in
respect thereof would be deemed to have been satisfied or discharged,
pursuant to this Section (without regard to the provisions of this
paragraph), the Trustee or any Paying Agent, as the case may be, shall be
required to return the money or Eligible Obligations, or combination
thereof, deposited with it as aforesaid to the Company or its
representative under any applicable Federal or State bankruptcy, insolvency
or other similar law, such Security shall thereupon be deemed retroactively
not to have been paid and any satisfaction and discharge of the Company's
indebtedness in respect thereof shall retroactively be deemed not to have
been effected, and such Security shall be deemed to remain Outstanding and
(b) any satisfaction and discharge of the Company's indebtedness in respect
of any Security shall be subject to the provisions of the last paragraph of
Section 603.
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect (except as hereinafter expressly provided), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph of
Section 701, any Security, previously deemed to have been paid for purposes
of this Indenture, shall be deemed retroactively not to have been so paid,
this Indenture shall thereupon be deemed retroactively not to have been
satisfied and discharged, as aforesaid, and to remain in full force and
effect, and the Company shall execute and deliver such instruments as the
Trustee shall reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this Indenture
as aforesaid, the obligations of the Company and the Trustee under Sections
304, 305, 306, 404, 503 (as to notice of redemption), 602, 603, 907 and 915
and this Article Seven shall survive.
Upon satisfaction and discharge of this Indenture as provided in
this Section, the Trustee shall assign, transfer and turn over to the
Company, subject to the lien provided by Section 907, any and all money,
securities and other property then held by the Trustee for the benefit of
the Holders of the Securities other than money and Eligible Obligations
held by the Trustee pursuant to Section 703.
SECTION 703. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money deposited pursuant
to Section 701, nor the principal or interest payments on any such Eligible
Obligations, shall be withdrawn or used for any purpose other than, and
shall be held in trust for, the payment of the principal of and premium, if
any, and interest, if any, on the Securities or portions of principal
amount thereof in respect of which such deposit was made, all subject,
however, to the provisions of Section 603; provided, however, that, so long
as there shall not have occurred and be continuing an Event of Default any
cash received from such principal or interest payments on such Eligible
Obligations, if not then needed for such purpose, shall, to the extent
practicable, be invested in Eligible Obligations of the type described in
clause (b) in the first paragraph of Section 701 maturing at such times and
in such amounts as shall be sufficient to pay when due the principal of and
premium, if any, and interest, if any, due and to become due on such
Securities or portions thereof on and prior to the Maturity thereof, and
interest earned from such reinvestment shall be paid over to the Company as
received, free and clear of any trust, lien or pledge under this Indenture
except the lien provided by Section 907; and provided, further, that, so
long as there shall not have occurred and be continuing an Event of
Default, any moneys held in accordance with this Section on the Maturity of
all such Securities in excess of the amount required to pay the principal
of and premium, if any, and interest, if any, then due on such Securities
shall be paid over to the Company free and clear of any trust, lien or
pledge under this Indenture except the lien provided by Section 907; and
provided, further, that if an Event of Default shall have occurred and be
continuing, moneys to be paid over to the Company pursuant to this Section
shall be held until such Event of Default shall have been waived or cured.
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
SECTION 801. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events:
(a) failure to pay interest, if any, on any Security of such
series within sixty (60) days after the same becomes due and payable
(whether or not payment is prohibited by the provisions of Article
Fifteen hereof); provided, however, that a valid extension of the
interest payment period by the Company as contemplated in Section 312
of this Indenture shall not constitute a failure to pay interest for
this purpose; or
(b) failure to pay the principal of or premium, if any, on any
Security of such series within three (3) Business Days after its
Maturity (whether or not payment is prohibited by the provisions of
Article Fifteen hereof); or
(c) failure to perform or breach of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a
default in the performance of which or breach of which is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more
series of Securities other than such series) for a period of 60 days
after there has been given, by registered or certified mail, to the
Company by the Trustee, or to the Company and the Trustee by the
Holders of at least 33% in principal amount of the Outstanding
Securities of such series, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder, unless the Trustee, or the Trustee
and the Holders of a principal amount of Securities of such series not
less than the principal amount of Securities the Holders of which gave
such notice, as the case may be, shall agree in writing to an
extension of such period prior to its expiration; provided, however,
that the Trustee, or the Trustee and the Holders of such principal
amount of Securities of such series, as the case may be, shall be
deemed to have agreed to an extension of such period if corrective
action is initiated by the Company within such period and is being
diligently pursued; or
(d) the entry by a court having jurisdiction in the premises of
(1) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (2) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition by one or more Persons other
than the Company seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable
Federal or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official for the
Company or for any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and any such decree or order
for relief or any such other decree or order shall have remained
unstayed and in effect for a period of 90 consecutive days; or
(e) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect
of the Company in a case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding
against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State
law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company or of any substantial part of its property, or the making by
it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they
become due, or the authorization of such action by the Board of
Directors; or
(f) any other Event of Default specified with respect to
Securities of such series.
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default shall have occurred and be continuing with
respect to Securities of any series at the time Outstanding, then in every
such case the Trustee or the Holders of not less than 33% in principal
amount of the Outstanding Securities of such series may declare the
principal amount (or, if any of the Securities of such series are Discount
Securities, such portion of the principal amount of such Securities as may
be specified in the terms thereof as contemplated by Section 301) of all of
the Securities of such series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders),
and upon receipt by the Company of notice of such declaration such
principal amount (or specified amount) shall become immediately due and
payable (provided that the payment of principal of such Securities shall
remain subordinated to the extent provided in Article Fifteen hereof);
provided, however, that if an Event of Default shall have occurred and be
continuing with respect to more than one series of Securities, the Trustee
or the Holders of not less than 33% in aggregate principal amount of the
Outstanding Securities of all such series, considered as one class, may
make such declaration of acceleration, and not the Holders of the
Securities of any one of such series.
At any time after such a declaration of acceleration with respect
to Securities of any series shall have been made and before a judgment or
decree for payment of the money due shall have been obtained by the Trustee
as hereinafter in this Article provided, the Event or Events of Default
giving rise to such declaration of acceleration shall, without further act,
be deemed to have been waived, and such declaration and its consequences
shall, without further act, be deemed to have been rescinded and annulled,
if
(a) the Company shall have paid or deposited with the Trustee a
sum sufficient to pay
(1) all overdue interest on all Securities of such series;
(2) the principal of and premium, if any, on any Securities
of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in such Securities;
(3) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities;
(4) all amounts due to the Trustee under Section 907;
and
(b) any other Event or Events of Default with respect to
Securities of such series, other than the non-payment of the principal
of Securities of such series which shall have become due solely by
such declaration of acceleration, shall have been cured or waived as
provided in Section 813.
No such rescission shall affect any subsequent Event of Default or impair
any right consequent thereon.
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
Trustee.
If an Event of Default described in clause (a) or (b) of Section
801 shall have occurred and be continuing, the Company shall, upon demand
of the Trustee, pay to it, for the benefit of the Holders of the Securities
of the series with respect to which such Event of Default shall have
occurred, the whole amount then due and payable on such Securities for
principal and premium, if any, and interest, if any, and, to the extent
permitted by law, interest on premium, if any, and on any overdue principal
and interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to
cover any amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due
and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other
obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series
shall have occurred and be continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the Holders of
Securities of such series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 804. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any
other obligor upon the Securities or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal,
premium, if any, and interest, if any, owing and unpaid in respect of
the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for amounts due to the Trustee under Section 907)
and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
in respect of which such judgment has been recovered.
SECTION 806. APPLICATION OF MONEY COLLECTED.
Subject to the provisions of Article Fifteen, any money collected
by the Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or premium, if any, or
interest, if any, upon presentation of the Securities in respect of which
or for the benefit of which such money shall have been collected and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 907;
Second: To the payment of the amounts then due and unpaid upon
the Securities for principal of and premium, if any, and interest, if
any, in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal, premium, if any, and interest, if any, respectively; and
Third: To the Company.
SECTION 807. LIMITATION ON SUITS.
No Holder shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(a) such Holder shall have previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of such series;
(b) the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of all series in
respect of which an Event of Default shall have occurred and be
continuing, considered as one class, shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request shall
have been given to the Trustee during such 60-day period by the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of all series in respect of which an Event of Default shall
have occurred and be continuing, considered as one class;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other of such Holders or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
SECTION 808. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional,
to receive payment of the principal of and premium, if any, and (subject to
Section 307 and 312) interest, if any, on such Security on the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding shall
have been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee or to such Holder, then and in every
such case, subject to any determination in such proceeding, the Company,
and Trustee and such Holder shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of
the Trustee and such Holder shall continue as though no such proceeding had
been instituted.
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or
to the Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder
or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 811. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to exercise
any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 812. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be continuing in
respect of a series of Securities, the Holders of a majority in principal
amount of the Outstanding Securities of such series shall have the right to
direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee, with respect to the Securities of such series; provided,
however, that if an Event of Default shall have occurred and be continuing
with respect to more than one series of Securities, the Holders of a
majority in aggregate principal amount of the Outstanding Securities of all
such series, considered as one class, shall have the right to make such
direction, and not the Holders of the Securities of any one of such series;
and provided, further, that
(a) such direction shall not be in conflict with any rule of law
or with this Indenture, and could not involve the Trustee in personal
liability in circumstances where indemnity would not, in the Trustee's
sole discretion, be adequate, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 813. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of
all the Securities of such series waive any past default hereunder with
respect to such series and its consequences, except a default
(a) in the payment of the principal of or premium, if any, or
interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under
Section 1202 cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
and all Events of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
SECTION 814. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by his
acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Company, to any suit instituted by the Trustee,
to any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in aggregate principal amount of the Outstanding
Securities of all series in respect of which such suit may be brought,
considered as one class, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of or premium, if any, or
interest, if any, on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no
such law had been enacted.
ARTICLE NINE
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with
respect to Securities of any series,
(1) the Trustee undertakes to perform, with respect to
Securities of such series, such duties and only such duties as
are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may, with respect to Securities of such series, conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty
to examine the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default with respect to Securities of
any series shall have occurred and be continuing, the Trustee shall
exercise, with respect to Securities of such series, such of the
rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own
affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except that
(1) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any one or more
series, as provided herein, relating to the time, method and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities of
such series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 902. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder with
respect to the Securities of any series to the Holders of Securities
of such series in the manner and to the extent required to do so by
the Trust Indenture Act, unless such default shall have been cured or
waived; provided, however, that in the case of any default of the
character specified in Section 801(c), no such notice to Holders shall
be given until at least 75 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is,
or after notice or lapse of time, or both, would become, an Event of
Default.
SECTION 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901 and to the
applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order,
or as otherwise expressly provided herein, and any resolution of the
Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any Holder pursuant to this Indenture, unless such Holder
shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall (subject to applicable
legal requirements) be entitled to examine, during normal business
hours, the books, records and premises of the Company, personally or
by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) except as otherwise provided in Section 801, the Trustee
shall not be charged with knowledge of any Event of Default with
respect to the Securities of any series for which it is acting as
Trustee unless either (1) a Responsible Officer of the Trustee shall
have actual knowledge of the Event of Default or (2) written notice of
such Event of Default shall have been given to the Trustee by the
Company, any other obligor on such Securities or by any Holder of such
Securities.
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) shall be taken as the statements
of the Company, and neither the Trustee nor any Authenticating Agent
assumes responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of
the Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 905. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any Paying Agent,
any Security Registrar or any other agent of the Company, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 908 and 913, may otherwise deal with the Company with
the same rights it would have if it were not the Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other agent.
SECTION 906. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds, except to the extent required by law. The
Trustee shall be under no liability for interest on or investment of any
money received by it hereunder except as expressly provided herein or
otherwise agreed with, and for the sole benefit of, the Company.
SECTION 907. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(b) except as otherwise expressly provided herein, reimburse the
Trustee upon its request for all reasonable expenses, disbursements
and advances reasonably incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except to the extent that any such expense, disbursement or
advance may be attributable to its negligence, wilful misconduct or
bad faith; and
(c) indemnify the Trustee and hold it harmless from and against,
any loss, liability or expense reasonably incurred by it arising out
of or in connection with the acceptance or administration of the trust
or trusts hereunder or the performance of its duties hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except to the extent any such loss,
liability or expense may be attributable to its negligence, wilful
misconduct or bad faith.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such other
than property and funds held in trust under Section 703 (except as
otherwise provided in Section 703). "Trustee" for purposes of this Section
shall include any predecessor Trustee; provided, however, that the
negligence, wilful misconduct or bad faith of any Trustee hereunder shall
not affect the rights of any other Trustee hereunder.
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting interest
within the meaning of the Trust Indenture Act, it shall either eliminate
such conflicting interest or resign to the extent, in the manner and with
the effect, and subject to the conditions, provided in the Trust Indenture
Act and this Indenture. For purposes of Section 310(b)(1) of the Trust
Indenture Act and to the extent permitted thereby, the Trustee, in its
capacity as trustee in respect of the Securities of any series, shall not
be deemed to have a conflicting interest arising from its capacity as
trustee in respect of the Securities of any other series.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws of
the United States, any State or Territory thereof or the District of
Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000
and subject to supervision or examination by Federal or State
authority, or
(b) if and to the extent permitted by the Commission by rule,
regulation or order upon application, a corporation or other Person
organized and doing business under the laws of a foreign government,
authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and subject to
supervision or examination by authority of such foreign government or
a political subdivision thereof substantially equivalent to
supervision or examination applicable to United States institutional
trustees,
and, in either case, qualified and eligible under this Article and the
Trust Indenture Act. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of such supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 911.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee
required by Section 911 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities
of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 908 after
written request therefor by the Company or by any Holder who has
been a bona fide Holder for at least six months, or
(2) the Trustee shall cease to be eligible under Section
909 and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (x) the Company by a Board Resolution may remove
the Trustee with respect to all Securities or (y) subject to Section 814,
any Holder who has been a bona fide Holder for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for
any cause (other than as contemplated in clause (y) in subsection (d)
of this Section), with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that
or those series (it being understood that any such successor Trustee
may be appointed with respect to the Securities of one or more or all
of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 911. If, within
one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable requirements of
Section 911, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed
by the Company or the Holders and accepted appointment in the manner
required by Section 911, any Holder who has been a bona fide Holder of
a Security of such series for at least six months may, on behalf of
itself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) So long as no event which is, or after notice or lapse of
time, or both, would become, an Event of Default shall have occurred
and be continuing, and except with respect to a Trustee appointed by
Act of the Holders of a majority in principal amount of the
Outstanding Securities pursuant to subsection (e) of this Section, if
the Company shall have delivered to the Trustee (i) a Board Resolution
appointing a successor Trustee, effective as of a date specified
therein, and (ii) an instrument of acceptance of such appointment,
effective as of such date, by such successor Trustee in accordance
with Section 911, the Trustee shall be deemed to have resigned as
contemplated in subsection (b) of this Section, the successor Trustee
shall be deemed to have been appointed by the Company pursuant to
subsection (e) of this Section and such appointment shall be deemed to
have been accepted as contemplated in Section 911, all as of such
date, and all other provisions of this Section and Section 911 shall
be applicable to such resignation, appointment and acceptance except
to the extent inconsistent with this subsection (f).
(g) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the
Securities of any series by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Securities of
such series as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its
corporate trust office.
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of all series, every such successor
Trustee so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of all sums owed to it, execute and deliver an
instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee, upon payment of all sums owed to it, shall duly assign,
transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any instruments which fully vest in and confirm to such
successor Trustee all such rights, powers and trusts referred to in
subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the Company or
any other obligor upon the Securities (other than by reason of a
relationship described in Section 311(b) of the Trust Indenture Act), the
Trustee shall be subject to any and all applicable provisions of the Trust
Indenture Act regarding the collection of claims against the Company or
such other obligor. For purposes of Section 311(b) of the Trust Indenture
Act:
(a) the term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or obligation.
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the legal
requirements of any applicable jurisdiction, the Company and the Trustee
shall have power to appoint, and, upon the written request of the Trustee
or of the Holders of at least thirty-three per centum (33%) in principal
amount of the Securities then Outstanding, the Company shall for such
purpose join with the Trustee in the execution and delivery of all
instruments and agreements necessary or proper to appoint, one or more
Persons approved by the Trustee either to act as co-trustee, jointly with
the Trustee, or to act as separate trustee, in either case with such powers
as may be provided in the instrument of appointment, and to vest in such
Person or Persons, in the capacity aforesaid, any property, title, right or
power deemed necessary or desirable, subject to the other provisions of
this Section. If the Company does not joint in such appointment within 15
days after the receipt by it of a request so to do, or if an Event of
Default shall have occurred and be continuing, the Trustee alone shall have
power to make such appointment.
Should any written instrument or instruments from the Company be
required by any co-trustee or separate trustee so appointed to more fully
confirm to such co-trustee or separate trustee such property, title, right
or power, any and all such instruments shall, on request, be executed,
acknowledged and delivered by the Company.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following conditions:
(a) the Securities shall be authenticated and delivered, and all
rights, powers, duties and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustee hereunder, shall
be exercised solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby conferred
or imposed upon the Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or
performed either by the Trustee or by the Trustee and such co-trustee
or separate trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the extent
that under any law of any jurisdiction in which any particular act is
to be performed, the Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or
separate trustee;
(c) the Trustee at any time, by an instrument in writing
executed by it, with the concurrence of the Company, may accept the
resignation of or remove any co-trustee or separate trustee appointed
under this Section, and, if an Event of Default shall have occurred
and be continuing, the Trustee shall have power to accept the
resignation of, or remove, any such co-trustee or separate trustee
without the concurrence of the Company. Upon the written request of
the Trustee, the Company shall join with the Trustee in the execution
and delivery of all instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor to any co-trustee
or separate trustee so resigned or removed may be appointed in the
manner provided in this Section;
(d) no co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Trustee, or
any other such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall be deemed
to have been delivered to each such co-trustee and separate trustee.
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with
respect to the Securities of one or more series, or any Tranche thereof,
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series or Tranche issued upon original issuance,
exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference
is made in this Indenture to the authentication and delivery of Securities
by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company and
shall at all times be a corporation organized and doing business under the
laws of the United States, any State or territory thereof or the District
of Columbia or the Commonwealth of Puerto Rico, authorized under such laws
to act as Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or examination by
Federal or State authority. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or to the requirements of
said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company.
Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, in
accordance with, and subject to the provisions of Section 907.
The provisions of Sections 308, 904 and 905 shall be applicable
to each Authenticating Agent.
If an appointment with respect to the Securities of one or more
series, or any Tranche thereof, shall be made pursuant to this Section, the
Securities of such series or Tranche may have endorsed thereon, in addition
to the Trustee's certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
________________________
As Trustee
By______________________
As Authenticating
Agent
By______________________
Authorized Signatory
If all of the Securities of a series may not be originally issued
at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not comply with Section 102 and need
not be accompanied by an Opinion of Counsel), shall appoint, in accordance
with this Section and in accordance with such procedures as shall be
acceptable to the Trustee, an Authenticating Agent having an office in a
Place of Payment designated by the Company with respect to such series of
Securities.
ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1001. LISTS OF HOLDERS.
Semiannually, not later than March 1 and September 1 in each
year, commencing September 1, 1995, and at such other times as the Trustee
may request in writing, the Company shall furnish or cause to be furnished
to the Trustee information as to the names and addresses of the Holders,
and the Trustee shall preserve such information and similar information
received by it in any other capacity and afford to the Holders access to
information so preserved by it, all to such extent, if any, and in such
manner as shall be required by the Trust Indenture Act; provided, however,
that no such list need be furnished so long as the Trustee shall be the
Security Registrar.
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY.
Not later than March 1 in each year, commencing March 1, 1996,
the Trustee shall transmit to the Holders and the Commission a report,
dated as of the next preceding January 1, with respect to any events and
other matters described in Section 313(a) of the Trust Indenture Act, in
such manner and to the extent required by the Trust Indenture Act. The
Trustee shall transmit to the Holders and the Commission, and the Company
shall file with the Trustee (within thirty (30) days after filing with the
Commission in the case of reports which pursuant to the Trust Indenture Act
must be filed with the Commission and furnished to the Trustee) and
transmit to the Holders, such other information, reports and other
documents, if any, at such times and in such manner, as shall be required
by the Trust Indenture Act.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation, or convey or otherwise transfer or lease its properties and
assets substantially as an entirety to any Person, unless
(a) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a Person organized and existing
under the laws of the United States, any State thereof or the District
of Columbia, and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of and
premium, if any, and interest, if any, on all Outstanding Securities
and the performance of every covenant of this Indenture on the part of
the Company to be performed or observed;
(b) immediately after giving effect to such transaction and
treating any indebtedness for borrowed money which becomes an
obligation of the Company as a result of such transaction as having
been incurred by the Company at the time of such transaction, no Event
of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, or other transfer or lease and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transactions
have been complied with.
SECTION 1102. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by the
Company into any other corporation or any conveyance, or other transfer or
lease of the properties and assets of the Company substantially as an
entirety in accordance with Section 1101, the successor corporation formed
by such consolidation or into which the Company is merged or the Person to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had
been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities Outstanding hereunder.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(a) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the
Company herein and in the Securities, all as provided in Article
Eleven; or
(b) to add one or more covenants of the Company or other
provisions for the benefit of all Holders or for the benefit of the
Holders of, or to remain in effect only so long as there shall be
Outstanding, Securities of one or more specified series, or one or
more specified Tranches thereof, or to surrender any right or power
herein conferred upon the Company; or
(c) to add any additional Events of Default with respect to all
or any series of Securities Outstanding hereunder; or
(d) to change or eliminate any provision of this Indenture or to
add any new provision to this Indenture; provided, however, that if
such change, elimination or addition shall adversely affect the
interests of the Holders of Securities of any series or Tranche
Outstanding on the date of such indenture supplemental hereto in any
material respect, such change, elimination or addition shall become
effective with respect to such series or Tranche only pursuant to the
provisions of Section 1202 hereof or when no Security of such series
or Tranche remains Outstanding; or
(e) to provide collateral security for the Securities; or
(f) to establish the form or terms of Securities of any series
or Tranche as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing interest, if
any, thereon and for the procedures for the registration, exchange and
replacement thereof and for the giving of notice to, and the
solicitation of the vote or consent of, the holders thereof, and for
any and all other matters incidental thereto; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 911(b); or
(i) to provide for the procedures required to permit the Company
to utilize, at its option, a non-certificated system of registration
for all, or any series or Tranche of, the Securities; or
(j) to change any place or places where (1) the principal of and
premium, if any, and interest, if any, on all or any series of
Securities, or any Tranche thereof, shall be payable, (2) all or any
series of Securities, or any Tranche thereof, may be surrendered for
registration of transfer, (3) all or any series of Securities, or any
Tranche thereof, may be surrendered for exchange and (4) notices and
demands to or upon the Company in respect of all or any series of
Securities, or any Tranche thereof, and this Indenture may be served;
or
(k) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other changes to the provisions
hereof or to add other provisions with respect to matters or questions
arising under this Indenture, provided that such other changes or
additions shall not adversely affect the interests of the Holders of
Securities of any series or Tranche in any material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date of the execution and delivery of
this Indenture or at any time thereafter shall be amended and
(x) if any such amendment shall require one or more changes
to any provisions hereof or the inclusion herein of any
additional provisions, or shall by operation of law be deemed to
effect such changes or incorporate such provisions by reference
or otherwise, this Indenture shall be deemed to have been amended
so as to conform to such amendment to the Trust Indenture Act,
and the Company and the Trustee may, without the consent of any
Holders, enter into an indenture supplemental hereto to effect or
evidence such changes or additional provisions; or
(y) if any such amendment shall permit one or more changes
to, or the elimination of, any provisions hereof which, at the
date of the execution and delivery hereof or at any time
thereafter, are required by the Trust Indenture Act to be
contained herein, this Indenture shall be deemed to have been
amended to effect such changes or elimination, and the Company
and the Trustee may, without the consent of any Holders, enter
into an indenture supplemental hereto to evidence such amendment
hereof.
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities of all series then Outstanding
under this Indenture, considered as one class, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, this
Indenture; provided, however, that if there shall be Securities of more
than one series Outstanding hereunder and if a proposed supplemental
indenture shall directly affect the rights of the Holders of Securities of
one or more, but less than all, of such series, then the consent only of
the Holders of a majority in aggregate principal amount of the Outstanding
Securities of all series so directly affected, considered as one class,
shall be required; and provided, further, that if the Securities of any
series shall have been issued in more than one Tranche and if the proposed
supplemental indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such Tranches, then the
consent only of the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all Tranches so directly affected, considered
as one class, shall be required; and provided, further, that no such
supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on (except as provided in
Section 312 hereof), any Security, or reduce the principal amount
thereof or the rate of interest thereon (or the amount of any
installment of interest thereon) or change the method of calculating
such rate or reduce any premium payable upon the redemption thereof,
or reduce the amount of the principal of a Discount Security that
would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 802, or change the coin or
currency (or other property), in which any Security or any premium or
the interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated
Maturity of any Security (or, in the case of redemption, on or after
the Redemption Date), without, in any such case, the consent of the
Holder of such Security, or
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series or any Tranche thereof, the consent of the
Holders of which is required for any such supplemental indenture, or
the consent of the Holders of which is required for any waiver of
compliance with any provision of this Indenture or of any default
hereunder and its consequences, or reduce the requirements of Section
1304 for quorum or voting, without, in any such case, the consent of
the Holders of each Outstanding Security of such series or Tranche, or
(c) modify any of the provisions of this Section, Section 607 or
Section 813 with respect to the Securities of any series, or any
Tranche thereof, or except to increase the percentages in principal
amount referred to in this Section or such other Sections or to
provide that other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this
Section, or the deletion of this proviso, in accordance with the
requirements of Sections 911(b) and 1201(h).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or of one or
more Tranches thereof, or which modifies the rights of the Holders of
Securities of such series or Tranches with respect to such covenant or
other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof. A waiver by a Holder of such Holder's right to consent
under this Section shall be deemed to be a consent of such Holder.
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 901) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties,
immunities or liabilities under this Indenture or otherwise.
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby. Any
supplemental indenture permitted by this Article may restate this Indenture
in its entirety, and, upon the execution and delivery thereof, any such
restatement shall supersede this Indenture as theretofore in effect for all
purposes.
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series, or any Tranche thereof, authenticated
and delivered after the execution of any supplemental indenture pursuant to
this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities
of any series, or any Tranche thereof, so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of such series or
Tranche.
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
If the terms of any particular series of Securities shall have
been established in a Board Resolution or an Officer's Certificate pursuant
to a Board Resolution as contemplated by Section 301, and not in an
indenture supplemental hereto, additions to, changes in or the elimination
of any of such terms may be effected by means of a supplemental Board
Resolution or Officer's Certificate, as the case may be, delivered to, and
accepted by, the Trustee; provided, however, that such supplemental Board
Resolution or Officer's Certificate shall not be accepted by the Trustee or
otherwise be effective unless all conditions set forth in this Indenture
which would be required to be satisfied if such additions, changes or
elimination were contained in a supplemental indenture shall have been
appropriately satisfied. Upon the acceptance thereof by the Trustee, any
such supplemental Board Resolution or Officer's Certificate shall be deemed
to be a "supplemental indenture" for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, may be called at any time and
from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series or Tranches.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches
thereof, for any purpose specified in Section 1301, to be held at such
time and at such place in the Borough of Manhattan, The City of New
York, as the Trustee shall determine, or, with the approval of the
Company, at any other place. Notice of every such meeting, setting
forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180
days prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a meeting
of the Holders of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, by the Company or by the Holders of 33%
in aggregate principal amount of all of such series and Tranches,
considered as one class, for any purpose specified in Section 1301, by
written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such
series and Tranches in the amount above specified, as the case may be,
may determine the time and the place in the Borough of Manhattan, The
City of New York, or in such other place as shall be determined or
approved by the Company, for such meeting and may call such meeting
for such purposes by giving notice thereof as provided in subsection
(a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, shall be valid without
notice if the Holders of all Outstanding Securities of such series or
Tranches are present in person or by proxy and if representatives of
the Company and the Trustee are present, or if notice is waived in
writing before or after the meeting by the Holders of all Outstanding
Securities of such series, or by such of them as are not present at
the meeting in person or by proxy, and by the Company and the Trustee.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of
one or more, or all, series, or any Tranche or Tranches thereof, a Person
shall be (a) a Holder of one or more Outstanding Securities of such series
or Tranches, or (b) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Outstanding Securities of such
series or Tranches by such Holder or Holders. The only Persons who shall
be entitled to attend any meeting of Holders of Securities of any series or
Tranche shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of the series and Tranches with
respect to which a meeting shall have been called as hereinbefore provided,
considered as one class, shall constitute a quorum for a meeting of Holders
of Securities of such series and Tranches; provided, however, that if any
action is to be taken at such meeting which this Indenture expressly
provides may be taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the Outstanding Securities of
such series and Tranches, considered as one class, the Persons entitled to
vote such specified percentage in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class, shall
constitute a quorum. In the absence of a quorum within one hour of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be dissolved.
In any other case the meeting may be adjourned for such period as may be
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for such period as may be
determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 1305(e), notice of the
reconvening of any meeting adjourned for more than 30 days shall be given
as provided in Section 1302(a) not less than ten days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening
of an adjourned meeting shall state expressly the percentage, as provided
above, of the principal amount of the Outstanding Securities of such series
and Tranches which shall constitute a quorum.
Except as limited by Section 1202, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of
a majority in aggregate principal amount of the Outstanding Securities of
the series and Tranches with respect to which such meeting shall have been
called, considered as one class; provided, however, that, except as so
limited, any resolution with respect to any action which this Indenture
expressly provides may be taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class, may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding Securities
of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of Holders
of Securities duly held in accordance with this Section shall be binding on
all the Holders of Securities of the series and Tranches with respect to
which such meeting shall have been held, whether or not present or
represented at the meeting.
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING RIGHTS;
CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Securities may be in
person or by proxy; and, to the extent permitted by law, any such
proxy shall remain in effect and be binding upon any future Holder of
the Securities with respect to which it was given unless and until
specifically revoked by the Holder or future Holder of such Securities
before being voted.
(b) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders of Securities in regard to proof of the
holding of such Securities and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence
of the right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104 and
the appointment of any proxy shall be proved in the manner specified
in Section 104. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders as provided in Section 1302(b), in
which case the Company or the Holders of Securities of the series and
Tranches calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches represented at the
meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one
vote for each $1 principal amount of Securities held or represented by
him; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a
Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at which a
quorum is present may be adjourned from time to time by Persons
entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches represented at the
meeting, considered as one class; and the meeting may be held as so
adjourned without further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders
shall be by written ballots on which shall be subscribed the signatures of
the Holders or of their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Securities, of the series and
Tranches with respect to which the meeting shall have been called, held or
represented by them. The permanent chairman of the meeting shall appoint
two inspectors of votes who shall count all votes cast at the meeting for
or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports of all votes cast at the
meeting. A record of the proceedings of each meeting of Holders shall be
prepared by the secretary of the meeting and there shall be attached to
said record the original reports of the inspectors of votes on any vote by
ballot taken thereat and affidavits by one or more persons having knowledge
of the facts setting forth a copy of the notice of the meeting and showing
that said notice was given as provided in Section 1302 and, if applicable,
Section 1304. Each copy shall be signed and verified by the affidavits of
the permanent chairman and secretary of the meeting and one such copy shall
be delivered to the Company, and another to the Trustee to be preserved by
the Trustee, the latter to have attached thereto the ballots voted at the
meeting. Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
SECTION 1307. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as hereinbefore
contemplated in this Article, any request, demand, authorization,
direction, notice, consent, waiver or other action may be made, given or
taken by Holders by written instruments as provided in Section 104.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1401. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest, if any, on any Securities, or any part
thereof, or for any claim based thereon or otherwise in respect thereof, or
of the indebtedness represented thereby, or upon any obligation, covenant
or agreement under this Indenture, against any incorporator, stockholder,
officer or director, as such, past, present or future of the Company or of
any predecessor or successor corporation (either directly or through the
Company or a predecessor or successor corporation), whether by virtue of
any constitutional provision, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly agreed and
understood that this Indenture and all the Securities are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or
be incurred by, any incorporator, stockholder, officer or director, past,
present or future, of the Company or of any predecessor or successor
corporation, either directly or indirectly through the Company or any
predecessor or successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or to be
implied herefrom or therefrom, and that any such personal liability is
hereby expressly waived and released as a condition of, and as part of the
consideration for, the execution of this Indenture and the issuance of the
Securities.
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company, for itself, its successors and assigns, covenants
and agrees, and each Holder of the Securities of each series, by its
acceptance thereof, likewise covenants and agrees, that the payment of the
principal of and premium, if any, and interest, if any, on each and all of
the Securities is hereby expressly subordinated, to the extent and in the
manner set forth in this Article, in right of payment to the prior payment
in full of all Senior Indebtedness.
Each Holder of the Securities of each series, by its acceptance
thereof, authorizes and directs the Trustee on its behalf to take such
action as may be necessary or appropriate to effectuate the subordination
as provided in this Article, and appoints the Trustee its attorney-in-fact
for any and all such purposes.
SECTION 1502. PAYMENT OVER OF PROCEEDS OF SECURITIES.
In the event (a) of any insolvency or bankruptcy proceedings or
any receivership, liquidation, reorganization or other similar proceedings
in respect of the Company or a substantial part of its property, or of any
proceedings for liquidation, dissolution or other winding up of the
Company, whether or not involving insolvency or bankruptcy, or (b) subject
to the provisions of Section 1503, that (i) a default shall have occurred
with respect to the payment of principal of or interest on or other
monetary amounts due and payable on any Senior Indebtedness, or (ii) there
shall have occurred a default (other than a default in the payment of
principal or interest or other monetary amounts due and payable) in respect
of any Senior Indebtedness, as defined therein or in the instrument under
which the same is outstanding, permitting the holder or holders thereof to
accelerate the maturity thereof (with notice or lapse of time, or both),
and such default shall have continued beyond the period of grace, if any,
in respect thereof, and, in the cases of subclauses (i) and (ii) of this
clause (b), such default shall not have been cured or waived or shall not
have ceased to exist, or (c) that the principal of and accrued interest on
the Securities of any series shall have been declared due and payable
pursuant to Section 801 and such declaration shall not have been rescinded
and annulled as provided in Section 802, then:
(1) the holders of all Senior Indebtedness shall first be
entitled to receive payment of the full amount due thereon, or
provision shall be made for such payment in money or money's
worth, before the Holders of any of the Securities are entitled
to receive a payment on account of the principal of or interest
on the indebtedness evidenced by the Securities, including,
without limitation, any payments made pursuant to Articles Four
and Five;
(2) any payment by, or distribution of assets of, the
Company of any kind or character, whether in cash, property or
securities, to which any Holder or the Trustee would be entitled
except for the provisions of this Article, shall be paid or
delivered by the person making such payment or distribution,
whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of such Senior
Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any
instruments evidencing any of such Senior Indebtedness may have
been issued, ratably according to the aggregate amounts remaining
unpaid on account of such Senior Indebtedness held or represented
by each, to the extent necessary to make payment in full of all
Senior Indebtedness remaining unpaid after giving effect to any
concurrent payment or distribution (or provision therefor) to the
holders of such Senior Indebtedness, before any payment or
distribution is made to the Holders of the indebtedness evidenced
by the Securities or to the Trustee under this Indenture; and
(3) in the event that, notwithstanding the foregoing, any
payment by, or distribution of assets of, the Company of any kind
or character, whether in cash, property or securities, in respect
of principal of or interest on the Securities or in connection
with any repurchase by the Company of the Securities, shall be
received by the Trustee or any Holder before all Senior
Indebtedness is paid in full, or provision is made for such
payment in money or money's worth, such payment or distribution
in respect of principal of or interest on the Securities or in
connection with any repurchase by the Company of the Securities
shall be paid over to the holders of such Senior Indebtedness or
their representative or representatives or to the trustee or
trustees under any indenture under which any instruments
evidencing any such Senior Indebtedness may have been issued,
ratably as aforesaid, for application to the payment of all
Senior Indebtedness remaining unpaid until all such Senior
Indebtedness shall have been paid in full, after giving effect to
any concurrent payment or distribution (or provision therefor) to
the holders of such Senior Indebtedness.
Notwithstanding the foregoing, at any time after the 123rd day
following the date of deposit of cash or Eligible Obligations pursuant to
Section 701 (provided all conditions set out in such Section shall have
been satisfied), the funds so deposited and any interest thereon will not
be subject to any rights of holders of Senior Indebtedness including,
without limitation, those arising under this Article Fifteen; provided that
no event described in clauses (d) and (e) of Section 801 with respect to
the Company has occurred during such 123-day period.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company
as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan or reorganization or readjustment which
are subordinate in right of payment to all Senior Indebtedness which may at
the time be outstanding to the same extent as, or to a greater extent than,
the Securities are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into,
another corporation or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article Eleven hereof shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of
this Section 1502 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article Eleven hereof. Nothing in Section 1501 or in this
Section 1502 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 907.
SECTION 1503. DISPUTES WITH HOLDERS OF CERTAIN SENIOR INDEBTEDNESS.
Any failure by the Company to make any payment on or perform any
other obligation in respect of Senior Indebtedness, other than any
indebtedness incurred by the Company or assumed or guaranteed, directly or
indirectly, by the Company for money borrowed (or any deferral, renewal,
extension or refunding thereof) or any other obligation as to which the
provisions of this Section shall have been waived by the Company in the
instrument or instruments by which the Company incurred, assumed,
guaranteed or otherwise created such indebtedness or obligation, shall not
be deemed a default under clause (b) of Section 1502 if (i) the Company
shall be disputing its obligation to make such payment or perform such
obligation and (ii) either (A) no final judgment relating to such dispute
shall have been issued against the Company which is in full force and
effect and is not subject to further review, including a judgment that has
become final by reason of the expiration of the time within which a party
may seek further appeal or review, or (B) in the event that a judgment that
is subject to further review or appeal has been issued, the Company shall
in good faith be prosecuting an appeal or other proceeding for review and a
stay or execution shall have been obtained pending such appeal or review.
SECTION 1504. SUBROGATION.
Senior Indebtedness shall not be deemed to have been paid in full
unless the holders thereof shall have received cash (or securities or other
property satisfactory to such holders) in full payment of such Senior
Indebtedness then outstanding. Upon the payment in full of all Senior
Indebtedness, the Holders of the Securities shall be subrogated to the
rights of the holders of Senior Indebtedness to receive any further
payments or distributions of cash, property or securities of the Company
applicable to the holders of the Senior Indebtedness until all amounts
owing on the Securities shall be paid in full; and such payments or
distributions of cash, property or securities received by the Holders of
the Securities, by reason of such subrogation, which otherwise would be
paid or distributed to the holders of such Senior Indebtedness shall, as
between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders, be deemed to be a payment by the Company to
or on account of Senior Indebtedness, it being understood that the
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
SECTION 1505. OBLIGATION OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as among the Company,
its creditors other than the holders of Senior Indebtedness and the
Holders, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and interest on the
Securities as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of
the Holders and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or
any Holder from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any, under
this Article of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any
such remedy.
Upon any payment or distribution of assets or securities of the
Company referred to in this Article, the Trustee and the Holders shall be
entitled to rely upon any order or decree of a court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders of the
Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed
thereon, and all other facts pertinent thereto or to this Article.
SECTION 1506. PRIORITY OF SENIOR INDEBTEDNESS UPON MATURITY.
Upon the maturity of the principal of any Senior Indebtedness by
lapse of time, acceleration or otherwise, all matured principal of Senior
Indebtedness and interest and premium, if any, thereon shall first be paid
in full before any payment of principal or premium or interest, if any, is
made upon the Securities or before any Securities can be acquired by the
Company or any sinking fund payment is made with respect to the Securities
(except that required sinking fund payments may be reduced by Securities
acquired before such maturity of such Senior Indebtedness).
SECTION 1507. TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all rights set forth in this
Article with respect to any Senior Indebtedness at any time held by it, to
the same extent as any other holder of Senior Indebtedness. Nothing in this
Article shall deprive the Trustee of any of its rights as such holder.
SECTION 1508. NOTICE TO TRUSTEE TO EFFECTUATE SUBORDINATION.
Notwithstanding the provisions of this Article or any other
provision of the Indenture, the Trustee shall not be charged with knowledge
of the existence of any facts which would prohibit the making of any
payment of moneys to or by the Trustee unless and until the Trustee shall
have received written notice thereof from the Company, from a Holder or
from a holder of any Senior Indebtedness or from any representative or
representatives of such holder and, prior to the receipt of any such
written notice, the Trustee shall be entitled, subject to Section 901, in
all respects to assume that no such facts exist; provided, however, that,
if prior to the fifth Business Day preceding the date upon which by the
terms hereof any such moneys may become payable for any purpose, or in the
event of the execution of an instrument pursuant to Section 702
acknowledging satisfaction and discharge of this Indenture, then if prior
to the second Business Day preceding the date of such execution, the
Trustee shall not have received with respect to such moneys the notice
provided for in this Section, then, anything herein contained to the
contrary notwithstanding, the Trustee may, in its discretion, receive such
moneys and/or apply the same to the purpose for which they were received,
and shall not be affected by any notice to the contrary, which may be
received by it on or after such date; provided, however, that no such
application shall affect the obligations under this Article of the persons
receiving such moneys from the Trustee.
SECTION 1509. MODIFICATION, EXTENSION, ETC. OF SENIOR INDEBTEDNESS.
The holders of Senior Indebtedness may, without affecting in any
manner the subordination of the payment of the principal of and premium, if
any, and interest, if any, on the Securities, at any time or from time to
time and in their absolute discretion, agree with the Company to change the
manner, place or terms of payment, change or extend the time of payment of,
or renew or alter, any Senior Indebtedness, or amend or supplement any
instrument pursuant to which any Senior Indebtedness is issued, or exercise
or refrain from exercising any other of their rights under the Senior
Indebtedness including, without limitation, the waiver of default
thereunder, all without notice to or assent from the Holders or the
Trustee.
SECTION 1510. TRUSTEE HAS NO FIDUCIARY DUTY TO HOLDERS OF SENIOR
Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
objectives as are specifically set forth in this Indenture, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall
not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness, and shall not be liable to any such holders if it shall
mistakenly pay over or deliver to the Holders or the Company or any other
Person, money or assets to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article or otherwise.
SECTION 1511. PAYING AGENTS OTHER THAN THE TRUSTEE.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
shall otherwise require) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if
such Paying Agent were named in this Article in addition to or in place of
the Trustee; provided, however, that Sections 1507, 1508 and 1510 shall not
apply to the Company if it acts as Paying Agent.
SECTION 1512. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS NOT IMPAIRED.
No right of any present or future holder of Senior Indebtedness
to enforce the subordination herein shall at any time or in any way be
prejudiced or impaired by any act or failure to act on the part of the
Company or by any noncompliance by the Company with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof any
such holder may have or be otherwise charged with.
SECTION 1513. EFFECT OF SUBORDINATION PROVISIONS; TERMINATION.
Notwithstanding anything contained herein to the contrary, other
than as provided in the immediately succeeding sentence, all the provisions
of this Indenture shall be subject to the provisions of this Article, so
far as the same may be applicable thereto.
Notwithstanding anything contained herein to the contrary, the
provisions of this Article Fifteen shall be of no further effect, and the
Securities shall no longer be subordinated in right of payment to the prior
payment of Senior Indebtedness, if the Company shall have delivered to the
Trustee a notice to such effect. Any such notice delivered by the Company
shall not be deemed to be a supplemental indenture for purposes of Article
Twelve hereof.
_________________________
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.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
[SEAL] CAROLINA POWER & LIGHT COMPANY
By: /s/ Margaret S. Glass
-------------------------------------
Vice President and Treasurer
ATTEST:
/s/ Adrian N. Wilson
-----------------------------------
Assistant Secretary
[SEAL] BANKERS TRUST COMPANY, Trustee
By: /s/ Robert Caporale
-------------------------------------
Vice President
ATTEST:
/s/ Scott Thiel
-----------------------------------
Assistant Treasurer
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF WAKE )
On the 31st day of March, 1995, before me personally came
----
MARGARET S. GLASS, to me known, who, being by me duly sworn, did depose and
say that she is the Vice President and Treasurer of CAROLINA POWER & LIGHT
COMPANY, one of the corporations described in and which executed the
foregoing 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 authority of the Board of Directors of said corporation, and
that she signed her name thereto by like authority.
[SEAL] /s/ Donna M. Cassada
----------------------------------------
DONNA M. CASSADA
Notary Public, North Carolina
County of Wake
Donna M. Cassada
My Commission Expires 11/16/97
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 30th day of March, 1995, before me personally came ROBERT
CAPORALE, to me known, who, being by me duly sworn, did depose and say that
he is a Vice President of BANKERS TRUST COMPANY, one of the corporations
described in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
[SEAL] /s/ Sharon V. Alston
----------------------------------------
SHARON V. ALSTON
Notary Public, State of New York
No. 31-4966275
Qualified in New York County
My Commission Expires May 7, 1996
EXHIBIT 4(d)
No._______________
Cusip No.__________
[FORM OF FACE OF QUICS]
CAROLINA POWER & LIGHT COMPANY
__% QUARTERLY INCOME CAPITAL SECURITIES
(SERIES A SUBORDINATED DEFERRABLE INTEREST DEBENTURES)
CAROLINA POWER & LIGHT COMPANY, a corporation duly organized
and existing under the laws of the State of North Carolina
(herein referred to as the "Company", which term includes any
successor Person under the Indenture), for value received, hereby
promises to pay to ____________________________________, or
registered assigns, the principal sum of ____________________
Dollars on April_____,2025, and to pay interest on said principal
sum from June_____,1995 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for,
quarterly on March ___, June___, September___ and December ___ of
each year, commencing June ___, 1995 at the rate of __% per annum
until the principal hereof is paid or made available for payment.
The amount of interest payable on any Interest Payment Date shall
be computed on the basis of a 360-day year of twelve 30-day
months. 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 Security
(or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest,
which shall be the ________ Business Day 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 Security (or one or more Predecessor
Securities) 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
Securities 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 Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture referred to on the reverse
hereof.
Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in the Borough of
Manhattan, The City and State 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.
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, 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 on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
CAROLINA POWER & LIGHT COMPANY
By:______________________________
ATTEST:
____________________________
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
BANKERS TRUST COMPANY, as Trustee
By:__________________________
Authorized Signatory
[FORM OF REVERSE OF QUICS]
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture,
dated as of March 1, 1995, as amended (herein called the
"Indenture", which term shall have the meaning assigned to it in
such instrument), between the Company and Bankers Trust Company,
as Trustee (herein called the Trustee, which term includes any
successor trustee under the Indenture), and reference is hereby
made to the Indenture, including the Resolutions and Officer's
Certificate filed with the Trustee on ___________, 1995 creating
the series designated on the face hereof, for a statement of the
respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of
the series designated on the face hereof, limited in aggregate
principal amount to $125,000,000.
The Securities of this series are subject to redemption
upon not less than 30 nor more than 60 days' notice by mail, at
any time on or after April ____, 2000 as a whole or in part, at
the election of the Company, at a Redemption Price equal to 100%
of the principal amount, together in the case of any such
redemption with accrued interest to, but not including, the
Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the
Holder of such Security, or one or more Predecessor Securities,
of record at the close of business on the related Regular Record
Date referred to on the face hereof, all as provided in the
Indenture.
In the event of redemption of this Security in part
only, a new Security or Securities 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 indebtedness evidenced by this Security is, to the
extent provided in the Indenture, subordinated and subject in
right of payment to the prior payment in full of all Senior
Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of
this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance
hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by
each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such Holder upon
said provisions.
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Security upon compliance
with certain conditions set forth in the Indenture.
If an event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect 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 Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security 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 Securities of this series, the Holders of not less
than a majority in aggregate principal amount of the Securities
of this series at the time Outstanding 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 aggregate principal amount of
Securities of this series at the time Outstanding 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 Security 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 Security 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
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
The Company shall have the right at any time and from
time to time during the term of the Securities of this series to
extend the interest payment period to a period not exceeding 20
consecutive quarters (an "Extended Interest Payment Period"), and
at the end of such Extended Interest Payment Period, the Company
shall pay all interest then accrued and unpaid (together with
interest thereon at the same rate as specified for the Securities
of this series to the extent permitted by applicable law);
provided, however, that during such Extended Interest Payment
Period the Company shall not declare or pay any divided on, or
redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock or make any guarantee
payments with respect to the foregoing. Prior to the termination
of any such Extended Interest Payment Period, the Company may
further extend the interest payment period, provided that such
Extended Interest Payment Period, together with all such previous
and further extensions thereof, may not exceed 20 consecutive
quarters or extend beyond the Stated Maturity of the Securities
of this series. Upon the termination of any such Extended
Interest Payment Period and the payment of all amounts then due,
the Company may select a new Extended Interest Payment Period,
subject to the above requirements. No interest during the
Extended Interest Payment Period, except at the end thereof,
shall be due and payable. The Company shall give the Holder of
this Security notice of its selection of such Extended Interest
Payment Period as provided in the Indenture.
The Securities of this series are issuable only in
registered form without coupons in denominations of $25 and any
integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor and of
authorized denominations, 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.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security
is registered as the absolute owner hereof for all purposes,
whether or not this Security 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 Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
EXHIBIT 8
REID & PRIEST LLP
40 WEST 57TH STREET
NEW YORK, NEW YORK 10019-4097
New York, New York
April 13, 1995
Carolina Power & Light Company
411 Fayetteville Street
Raleigh, North Carolina 27601-1748
Ladies and Gentlemen:
We refer you to the prospectus supplement dated April
13, 1995 (the "Prospectus Supplement") to the Prospectus, also
dated April 13, 1995, both to be filed with the Securities and
Exchange Commission (the "Commission") on or about the date
hereof, and to the Registration Statement on Form S-3
(registration no. 33-57835) filed by Carolina Power & Light
Company with the Commission pursuant to the Securities Act of
1933, as amended, on February 24, 1995 and declared effective by
the Commission on March 17, 1995.
We are of the opinion that the statements under the
caption "U.S. TAXATION" in the Prospectus Supplement constitute
an accurate description, in general terms, of certain U.S.
federal income tax considerations that may be relevant to
prospective purchasers of the Capital Securities (as defined in
the Prospectus Supplement).
We hereby consent to the filing of this opinion in
connection with such Registration Statement (registration no. 33-
57835).
Very truly yours,
/s/ Reid & Priest LLP
REID & PRIEST LLP
EXHIBIT 23
Consent of Reid & Priest LLP
April 13, 1995
We hereby consent to the use of our name under the
captions "U.S. TAXATION" and "LEGAL MATTERS" in the prospectus
supplement, dated April 13, 1995, to the Prospectus, dated April
13, 1995, which is part of the Carolina Power & Light Company
Registration Statement on Form S-3 (registration no. 33-57835).
REID & PRIEST LLP
