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): October 25, 1999
CAROLINA POWER & LIGHT COMPANY
(Exact name of registrant as specified in its charter)
North Carolina 1-3382 56-0165465
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
411 Fayetteville Street, Raleigh, North Carolina 27601-1748
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(Address of principal executive offices)
Registrant's telephone number, including area code: (919) 546-6111
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ITEM 5. OTHER EVENTS
(a) UNDERWRITING AGREEMENT. The Registrant has entered into an
Underwriting Agreement, dated October 25, 1999, with Merrill Lynch, Fenner,
Pierce & Smith Incorporated, as Underwriter, in connection with the offering of
Extendible Notes due October 28, 2009 (the "Notes"), registered with the
Securities and Exchange Commission on Form S-3 (Reg. No. 333-69237). A copy of
the Underwriting Agreement is filed herewith as Exhibit 1.
(b) INDENTURE. The Registrant entered into an Indenture (For Debt
Securities) and an Officer's Certificate, both dated as of October 28, 1999,
with The Chase Manhattan Bank, as Trustee, in connection with the offering of
the Notes. Copies of the Indenture (For Debt Securities) and the Officer's
Certificate are filed herewith as Exhibits 4(a) and 4(b), respectively.
(c) REMARKETING AGREEMENT. The Registrant entered into a Remarketing
Agreement, dated as of October 28, 1999, with Merrill Lynch, Fenner, Pierce and
Smith Incorporated, as Remarketing Agent, in connection with the offering of the
Notes. A copy of the Remarketing Agreement is filed herewith as Exhibit 4(c).
(d) CALCULATION AGENCY AGREEMENT. The Registrant entered into a
Calculation Agency Agreement, dated as of October 28, 1999, with the Chase
Manhattan Bank, as Calculation Agent, in connection with the offering of the
Notes. A copy of the Calculation Agency Agreement is filed herewith as Exhibit
4(d).
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) EXHIBITS.
1 Underwriting Agreement, dated October 25, 1999,
between Carolina Power & Light Company and Merrill
Lynch, Fenner, Pierce & Smith Incorporated, as
Underwriter.
4(a) Indenture (For Debt Securities), dated as of October
28, 1999, between Carolina Power & Light Company and
The Chase Manhattan Bank, as Trustee.
4(b) Officer's Certificate, dated as of October 28, 1999,
between Carolina Power & Light Company and The Chase
Manhattan Bank, as Trustee.
4(c) Remarketing Agreement, dated as of October 28, 1999,
between Carolina Power & Light Company and Merrill
Lynch, Fenner, Pierce and Smith Incorporated, as
Remarketing Agent.
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4(d) Calculation Agency Agreement, dated as of October 28,
1999, between Carolina Power & Light Company and The
Chase Manhattan Bank, as Calculation Agent.
12 Computation of Ratio of Earnings to Fixed Charges.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
CAROLINA POWER & LIGHT COMPANY
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Registrant
By: /s/ Glenn E. Harder
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Glenn E. Harder
Executive Vice President and
Chief Financial Officer
Date: November 5, 1999
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EXHIBIT INDEX
1 Underwriting Agreement, dated October 25, 1999, between Carolina Power
& Light Company and Merrill Lynch, Fenner, Pierce & Smith Incorporated,
as Underwriter.
4(a) Indenture (For Debt Securities), dated as of October 28, 1999, between
Carolina Power & Light Company and The Chase Manhattan Bank, as
Trustee.
4(b) Officer's Certificate, dated as of October 28, 1999, between Carolina
Power & Light Company and The Chase Manhattan Bank, as Trustee.
4(c) Remarketing Agreement, dated as of October 28, 1999, between Carolina
Power & Light Company and Merrill Lynch, Fenner, Pierce and Smith
Incorporated, as Remarketing Agent.
4(d) Calculation Agency Agreement, dated as of October 28, 1999, between
Carolina Power & Light Company and The Chase Manhattan Bank, as
Calculation Agent.
12 Computation of Ratio of Earnings to Fixed Charges.
CAROLINA POWER & LIGHT COMPANY
Extendible Notes due October 28, 2009
UNDERWRITING AGREEMENT
October 25, 1999
Merrill Lynch, Pierce, Fenner & Smith Inc.
250 Vesey Street
New York, New York 10281
Dear Ladies and Gentlemen:
The undersigned Carolina Power & Light Company (the "Company") hereby
confirms its agreement with Merrill Lynch, Pierce, Fenner & Smith Inc. (the
"Underwriter") as follows:
1. Underwriter. The term "Underwriter" as used herein shall be deemed
to mean the addressee of this Agreement.
2. Description of Securities. The Company proposes to issue and sell
its debt securities of the designation, the terms and in the amount specified in
Schedule I hereto (the "Securities") in one or more new series under a governing
indenture (the "Indenture") between the Company and The Chase Manhattan Bank, as
trustee (the "Trustee"), in substantially the form heretofore delivered to the
Underwriter.
3. Representations and Warranties of the Company. The Company
represents and warrants to the Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a Registration Statement on Form S-3 (No.
333-69237) (the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), for the registration of up to
an aggregate of $1,500,000,000 of the Company's First Mortgage Bonds,
Senior Notes and Debt Securities (collectively, the "Registered
Securities") in unallocated amounts, as each is defined in the
Registration Statement. The Registration Statement has been declared
effective by the Commission, and the Indenture has been qualified under
the Trust Indenture Act of 1939 Act, as amended (the "1939 Act"). The
term "Registration Statement" shall be deemed to include all amendments
to the date hereof and all documents incorporated by reference therein
(the "Incorporated Documents"). The prospectus included in the
Registration Statement, as supplemented by a preliminary prospectus
supplement, dated October 18, 1999, relating to the Securities (the
"Preliminary Prospectus Supplement"), 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
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referred to as the "Preliminary Prospectus." The prospectus included in
the Registration Statement, as it is to be supplemented by a prospectus
supplement, dated on or about the date hereof, relating to the
Securities (the "Prospectus Supplement"), 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
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 Underwriter, and any
references herein to the terms "Registration Statement" or "Prospectus"
at a date after the filing of the Prospectus Supplement shall be deemed
to refer to the Registration Statement or the Prospectus, as the case
may be, as each may be amended or supplemented prior to such date. As
of the date hereof, the Company has sold Registered Securities in the
aggregate amount of $400,000,000.
(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 Underwriter or of which the
Underwriter shall not previously have been advised or to which the
Underwriter shall reasonably object in writing and which has not been
approved by the Underwriter or its counsel acting on behalf of the
Underwriter.
(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, 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 Underwriter expressly for use in the Prospectus or to
any statements in or omissions from the Statements of Eligibility
(Forms T-1 and T-2), as applicable, of the Trustees under any
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 Underwriter 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.
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(d) The financial statements incorporated by reference in the
Registration Statement present fairly the financial condition and
operations of the Company at the respective dates or for the respective
periods to which they apply; such financial statements have been
prepared in each case in accordance with generally accepted accounting
principles consistently applied throughout the periods involved; and
Deloitte & Touche LLP, who have audited certain of the financial
statements, are independent public or independent certified public
accountants as required by the Securities Act or the Exchange Act and
the rules and regulations of the Commission thereunder.
(e) Except as reflected in, or contemplated by, the
Registration Statement and the Prospectus, since the respective dates
as of which information is given in the Registration Statement and
Prospectus, and prior to the Closing Date, there has not been any
material adverse change in the business, property, financial condition,
earnings, business affairs, or business prospects of the Company and
its subsidiaries considered as a whole, and since such dates and prior
to the Closing Date, there has not been any material transaction
entered into by the Company other than transactions contemplated by the
Registration Statement and Prospectus or transactions arising in the
ordinary course of business. The Company has no material contingent
obligation which is not disclosed in the Registration Statement and
Prospectus.
(f) The consummation of the transactions herein contemplated
and the fulfillment of the terms hereof on the part of the Company to
be fulfilled have been duly authorized by all necessary corporate
action of the Company in accordance with the provisions of its charter
(the "Charter"), by-laws and applicable law.
(g) The consummation of the transactions herein contemplated
and the fulfillment of the terms hereof will not result in a breach of
any of the terms or provisions of, or constitute a default under, the
Charter, the Company's by-laws, applicable law or any indenture,
mortgage, deed of trust or other agreement or instrument to which the
Company is now a party or any judgment, order, writ or decree of any
government or governmental authority or agency or court having
jurisdiction over the Company or any of its subsidiaries or any of
their assets, properties or operations.
(h) The Securities conform in all material respects to the
description contained in the Prospectus.
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of North Carolina with corporate power and authority to own, lease and
operate its properties and to conduct its business as contemplated
under this Underwriting Agreement, the Remarketing Agreement, the
Remarketing Agency Agreement and the other agreements to which it is a
party, and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on the
financial condition, earnings, business affairs or business prospects
of the Company and its subsidiaries considered as a whole.
(j) The outstanding capital stock of the Company has been duly
authorized and validly issued and is fully paid and non-assessable and
is not subject to preemptive or other similar rights.
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(k) The Company does not have any significant subsidiaries as
defined in Rule 1-02 of Regulation S-X promulgated under the Securities
Act.
(l) The Indenture (A) has been duly authorized, executed and
delivered by the Company, and, assuming due authorization, execution
and delivery by the Trustee, constitutes a valid and legally binding
obligation of the Company, enforceable against the Company in
accordance with its terms, subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or similar
laws affecting creditor's rights generally and (ii) general principles
of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity and except the effect on enforceability
of federal or state law limiting, delaying or prohibiting the making of
payments outside the United States); and (B) conforms in all material
respects to the description thereof in the Prospectus.
(m) The Securities have been duly authorized by the Company
and when issued and authenticated in the manner provided for in the
Indenture and delivered against payment of the consideration therefor
specified in the Officer's Certificate, will constitute valid and
legally binding obligations of the Company, entitled to the benefits of
the Indenture enforceable against the Company in accordance with its
terms, subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transferor or similar laws
affecting creditors' rights generally and (ii) general principles of
equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity and except the effect on enforceability
of federal or state law limiting, delaying or prohibiting the making of
payments outside the United States). The Securities will be in the form
set forth in Schedule I, and each registered holder of Securities is
entitled to the benefits of the Indenture. Such Securities rank and
will rank on a parity with all unsecured and unsubordinated
indebtedness of the Company that is outstanding on the date hereof and
on each Remarketing Reset Date as contemplated in the Remarketing
Agreement or that may be incurred thereafter. The Securities will be
effectively subordinated to the prior claims of all holders of the
Company's First Mortgage Bonds, issued pursuant to a Mortgage and Deed
of Trust dated as of May 1, 1940, as amended or supplemented, and
Senior Notes, issued pursuant to an Indenture (For Senior Notes) dated
as of March 1, 1999, as amended or supplemented.
(n) Neither the Company nor any of its subsidiaries is an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended (the "1940 Act").
(o) Except as described in or contemplated by the Prospectus,
there are no pending actions, suits or proceedings against or affecting
the Company or any of its subsidiaries or properties which are likely
in the aggregate, to result in any material adverse change in the
business, property, financial condition, earnings, business affairs, or
business prospects of the Company and its subsidiaries considered as a
whole or which are likely in the aggregate to materially and adversely
affect the consummation of this Agreement, the Remarketing Agreement,
the Calculation Agency Agreement, the Remarketing Agency Agreement, the
Indenture, the Notes or the transactions contemplated herein or
therein.
(p) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder in connection
with the offering, issuance or sale of the Securities hereunder or the
consummation of the transactions herein contemplated or for the due
execution, delivery or performance of the
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Indenture by the Company, except such as have been already obtained or
as may be required under the Securities Act or state securities laws
and except for the qualification of the Indenture under the 1939 Act.
4. Purchase and Sale. On the basis of the representations, warranties
and covenants herein contained, but subject to the terms and conditions herein
set forth, the Company agrees to sell to the Underwriter, and the Underwriter
agrees to purchase from the Company, all of the Securities at the purchase price
set forth in Schedule I hereto.
5. Reoffering by Underwriter. The Underwriter agrees 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. 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 office of The Chase Manhattan Bank, 450 West 33rd Street,
New York, New York 10001, or such other place, time and date as the Underwriter
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 wire
transfer of immediately available funds against delivery to The Depository Trust
Company or to The Chase Manhattan Bank, as custodian for The Depository Trust
Company, in fully registered global form registered in the name of Cede & Co.,
for the respective accounts specified by the Underwriter not later than the
close of business on the business day prior to the Closing Date or such other
date and time not later than the Closing Date as agreed by The Depository Trust
Company or The Chase Manhattan Bank. For the purpose of expediting the checking
of the certificates by the Underwriter, the Company agrees to make the
Securities available to the Underwriter not later than 10:00 A.M., on the last
full business day prior to the Closing Date at said office of The Chase
Manhattan Bank.
7. Covenants of the Company. The Company covenants with the 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 Underwriter and to
counsel for the Underwriter, to the extent not previously delivered,
one fully executed copy or one conformed copy, certified by an officer
of the Company, of the Registration Statement, as originally filed, and
of all amendments thereto, heretofore or hereafter made, (other than
those relating solely to securities other than the Securities),
including any post-effective amendment (in each case including all
exhibits filed therewith and all documents incorporated therein not
previously furnished to the Underwriter), including signed copies of
each consent and certificate included therein or filed as an exhibit
thereto. The Company will also send to the Underwriter as soon as
practicable after the date of this Agreement and thereafter from time
to time as many copies of the Prospectus as the Underwriter 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 Underwriter 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 Underwriter 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
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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 dealers named by the Underwriter 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 the 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 Underwriter, will furnish to the Underwriter, at the
expense of the 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 advise the Underwriter promptly of the
filing of the Prospectus pursuant to Rule 424 and of any amendment or
supplement to the Prospectus or Registration Statement or of official
notice of institution of proceedings for, or the entry of, a stop order
suspending the effectiveness of the Registration Statement and, if such
a stop order should be entered, use its best efforts to obtain the
prompt removal thereof.
(e) The Company will use its best efforts to qualify the
Securities as may be required, for offer and sale under the Blue Sky or
legal investment laws of such jurisdictions as the Underwriter 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 Underwriter's counsel
shall be paid by the Underwriter (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 Underwriter for the fees and
disbursements of Underwriter's counsel. The Company shall not be
required to pay any amount for any expenses of the Underwriter except
as provided in this paragraph 7 and in paragraph 8. The Company shall
not in any event be liable to the Underwriter for damages on account of
the loss of anticipated profit.
8. Payment of Expenses. The Company will pay all expenses incident to
the performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement and the printing of this
Agreement, (ii) the delivery of the Securities to the Underwriter, (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(e), including filing fees
and the fees and disbursements of counsel for the Underwriter in connection
therewith, and in connection with the preparation of the Blue Sky Survey and any
Legality
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Memorandum, such fees and disbursements not to exceed $5,000, (v) the printing
and delivery to the Underwriter 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
Underwriter of copies of the Blue Sky Survey and Legality Memorandum, and (vii)
the preparation, execution, filing and recording by the Company of the Indenture
(such filing and recordation to be promptly made, after execution and delivery
of such Indenture to the Trustee under the Indenture in the counties in which
the mortgaged property of the Company is located); and the Company will pay all
taxes, if any (but not including any transfer taxes), on the issue of the
Securities and the filing and recordation of the Indenture.
9. Conditions of Underwriter's Obligations. The obligations of the
Underwriter to purchase and pay for the Securities shall be subject to the
accuracy of the representations and warranties of the Company as of the Closing
Date, to the performance by the Company of its obligations to be performed
hereunder prior to the Closing Date, and to the following further conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date; no
proceedings for that purpose shall be pending before or, to the
Company's knowledge, threatened by the Commission on the Closing Date;
and the Underwriter 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) At the time of execution of this Agreement, or such later
date as shall have been consented to by the Underwriter, 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 Underwriter 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
Underwriter or counsel for the Underwriter, contains any such
unacceptable provision).
(c) At the Closing Date, the Underwriter shall receive
favorable opinions from: (1) Hunton & Williams, counsel to the Company,
which opinion shall be satisfactory in form and substance to counsel
for the Underwriter, and (2) Winthrop, Stimson, Putnam & Roberts,
counsel for the Underwriter, in each of which opinions (except as to
subdivision (viii) of this subparagraph (c), as to which Winthrop,
Stimson, Putnam & Roberts need express no opinion) said counsel (except
Hunton & Williams as to North Carolina law) may rely as to all matters
of North Carolina and South Carolina law upon the opinions of William
D. Johnson, Esq., Senior Vice President and Corporate Secretary for the
Company, and Nelson Mullins Riley & Scarborough, L.L.P., respectively,
to the effect that:
(i) The 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 legally
binding obligation of the Company enforceable in accordance
with its terms, except as limited by bankruptcy, insolvency or
other laws affecting mortgagees' and other creditors' rights
and by general equitable principles and any implied covenant
of good faith and fair dealings;
(ii) The Indenture has been duly qualified under the
1939 Act;
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(iii) Assuming authentication by the Trustee in
accordance with the Indenture and delivery to and payment for
the Securities by the Underwriter, as provided in this
Agreement, the Securities have been duly and validly
authorized, executed and delivered and are legal, valid and
binding obligations of the Company enforceable in accordance
with their terms, except as limited by bankruptcy, insolvency
or other laws affecting mortgagees' and other creditors'
rights and by general equitable principles and any implied
covenant of good faith and fair dealings, and are entitled to
the benefits of the Indenture;
(iv) The statements made in the Prospectus under the
caption "Description of Debt Securities" and under the caption
"Description of the Notes," insofar as they purport to
constitute summaries of the documents referred to therein, are
correct in all material respects;
(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
Preliminary Prospectus and Prospectus, at the time each 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, the Preliminary Prospectus and the
Prospectus pursuant to Item 12 of Form S-3 (except as to
financial statements and other financial and statistical data
constituting a part thereof or incorporated by reference
therein, upon which such opinions need not pass), at the time
they were filed with the Commission, complied as to form in
all material respects with the requirements of the Exchange
Act and the applicable instructions, rules and regulations of
the Commission thereunder; the Registration Statement has
become effective under the Securities Act and, to the best of
the knowledge of said counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued
and not withdrawn and no proceedings for a stop order with
respect thereto are threatened or pending under Section 8 of
the Securities Act;
(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. Nothing has come to the attention of said counsel
that would lead them to believe that (x) the Preliminary
Prospectus, at the time it was filed with, or transmitted for
filing to, the Commission pursuant to Rule 424, included an
untrue statement of a material fact or omitted 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 or (y) the Prospectus, at the time
it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 or, as amended or
supplemented, at the Closing Date, included or includes an
untrue statement of a material fact or omitted or omits to
state a
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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, the Preliminary Prospectus 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; to the best of the knowledge of said counsel, said
orders are still in force and effect; and no further filing
with, or approval, authorization, consent or other order of,
any public board or body (except such as have been obtained
under the Securities Act and as may be required under the
state securities or Blue Sky laws of any jurisdiction) is
legally required for the consummation of the transactions
contemplated in this Agreement.
(d) At the Closing Date, the Underwriter shall receive from
William D. Johnson, Esq., Senior Vice President and Corporate Secretary
for the Company, a favorable opinion in form and substance satisfactory
to counsel for the Underwriter, 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 duly qualified to do business
as an electrical utility and is doing business in that State
and in the State of South Carolina;
(ii) The Company is duly authorized by its Charter to
conduct the business which it is now conducting as set forth
in the Prospectus;
(iii) The Company has valid and subsisting
franchises, licenses and permits free from burdensome
restrictions and adequate for the conduct of its business;
(iv) The information contained in the Prospectus that
is stated therein to have been made in reliance upon the
opinion of said counsel has been reviewed by said counsel and
is correct;
(v) The issuance and sale of the Securities have been
duly authorized by all necessary corporate action on the part
of the Company;
(vi) Except as described in or contemplated by the
Prospectus, there are no pending actions, suits or proceedings
against or affecting the Company or any of its subsidiaries or
properties which are likely in the aggregate, to result in any
material adverse change in the business, property, financial
condition, earnings, business affairs, or business prospects
of the Company and its subsidiaries considered as a whole or
which are likely in the aggregate, to materially and adversely
affect the consummation of this Agreement, the Remarketing
Agreement, the Remarketing Agency Agreement, the Calculation
Agency Agreement, the Indenture, the Notes or the transactions
contemplated herein or therein.
9
<PAGE>
(vii) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will not
result in a breach of any of the terms or provisions of, or
constitute a default under, the Charter, the Company's
by-laws, applicable law or any indenture, mortgage, deed of
trust or other agreement or instrument to which the Company is
now a party or any judgment, order, writ or decree of any
government or governmental authority or agency or court having
jurisdiction over the Company or any of its subsidiaries or
any of their assets, properties or operations.
In said opinion such counsel may rely as to all matters of South
Carolina law (except as to subdivision (iii) of this subparagraph (d))
on the opinion of Nelson Mullins Riley & Scarborough, L.L.P., and as to
all matters of New York law on the opinion of Hunton & Williams.
(e) At the Closing Date, the Underwriter shall receive from
Nelson Mullins Riley & Scarborough, L.L.P., a favorable opinion in form
and substance satisfactory to counsel for the Underwriter, to the
effect that:
(i) As recognized in a South Carolina Public Service
Commission Order on Remand dated July 9, 1990, (1) the Company
is an electrical utility engaged in the business of
generating, transmitting, distributing and selling electric
power to the general public in the States of South Carolina
and North Carolina, and (2) the Company conducts its South
Carolina retail operations subject to the jurisdiction of the
South Carolina Public Service Commission pursuant to South
Carolina Code Annotated, Sections 58-27-10 et seq. (1976 as
amended);
(ii) The Company is duly qualified to transact
business in the State of South Carolina; and
(iii) The South Carolina Public Service Commission
has entered an order authorizing the issuance and sale of the
Registered Securities; and no further filing with, or
approval, authorization, consent or other order of, any public
board or body of the State of South Carolina (except as may be
required under the Blue Sky laws of the State of South
Carolina) is legally required for the issuance and sale of the
Securities.
(f) At the time of execution of this Agreement and at the
Closing Date, the Underwriter 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 and
Prospectus 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
10
<PAGE>
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 and Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Securities Act or the Exchange Act, as applicable, and the published
rules and regulations thereunder or any material modifications should
be made for them to be in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the
most recent audited financial statements incorporated by reference in
the Registration Statement and Prospectus; 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 and Prospectus, except for changes or
decreases that the Registration Statement and Prospectus disclose 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 Underwriter shall reasonably request.
(g) At the Closing Date, the Underwriter 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 counsel for the Underwriter.
In case any of the conditions specified above in this paragraph 9 shall
not have been fulfilled or waived by 2:00 P.M. on the Closing Date, this
Agreement may be terminated by the Underwriter by 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 12:00 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).
11
<PAGE>
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 delivering written notice thereof to the Underwriter. 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 the
Underwriter and each person who controls the 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 the Underwriter and each such
controlling person for any legal or other expenses (including to the
extent hereinafter provided, reasonable counsel fees) incurred by them
(when and as incurred) in connection with investigating any such
losses, claims, damages or liabilities or in connection with defending
any actions, insofar as such losses, claims, damages, liabilities,
expenses or actions arise out of or are based upon any untrue
statement, or alleged untrue statement, of a material fact contained in
the Registration Statement, any preliminary prospectus or the
Prospectus, or in the Registration Statement or Prospectus as amended
or supplemented (if any amendments or supplements thereto shall have
been furnished), or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the
indemnity agreement contained in this paragraph 11 shall not apply to
any such losses, claims, damages, liabilities, expenses or actions
arising out of, or based upon any such untrue statement or alleged
untrue statement, or any such omission or alleged omission, if such
statement or omission was made in reliance upon and in conformity with
information furnished herein or in writing to the Company by the
Underwriter for use in the Registration Statement, any preliminary
prospectus 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
Statement of Eligibility under the 1939 Act (Form T-1) of the Trustee
under the Indenture, and provided, further, that the indemnity
agreement contained in this paragraph 11 shall not inure to the benefit
of the Underwriter (or of any person controlling the 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 (excluding documents incorporated by reference
therein) shall not have been given or sent to such person by or on
behalf of the Underwriter with or prior to the written confirmation of
the sale involved, unless such Prospectus failed to correct the
omission or statement. 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 the Underwriter or any such controlling person and shall
survive the delivery of the Securities. The Underwriter agrees to
notify promptly the Company of the commencement of any litigation or
proceedings against it, or any such controlling person, in connection
with the sale of the Securities.
(b) The Underwriter agrees to indemnify and hold harmless the
Company, its officers and directors, and each person who controls the
Company within the meaning of Section 15 of the Securities Act, against
any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Securities
Act or under any other statute or common law, and to reimburse each of
them for any legal or other expenses (including, to the extent
hereinafter provided, reasonable counsel fees) incurred by them (when
and as incurred) in connection with investigating any such losses,
claims, damages, or liabilities, or in
12
<PAGE>
connection with defending any actions, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, any preliminary
prospectus or Prospectus as amended or supplemented (if any amendments
or supplements thereto shall have been furnished), or the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, if
such statement or omission was made in reliance upon and in conformity
with information furnished herein or in writing to the Company by the
Underwriter for use in the Registration Statement, any preliminary
prospectus or the Prospectus or any amendment or supplement to either
thereof. The indemnity agreement of the Underwriter 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 such controlling person, and shall survive the delivery of the
Securities. The Company agrees promptly to notify the Underwriter 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 the Underwriter agree that, upon the
receipt of notice of the commencement of any action against it, its
officers and directors, or any person controlling it as aforesaid, in
respect of which indemnity may be sought on account of any indemnity
agreement contained herein, it will promptly give written notice of the
commencement thereof to the party or parties against whom indemnity
shall be sought hereunder. The Company and the Underwriter agree that
the notification required by the preceding sentence shall be a material
term of this Agreement. The omission so to notify such indemnifying
party or parties of any such action shall relieve such indemnifying
party or parties from any liability which it or they may have to the
indemnified party on account of any indemnity agreement contained
herein if such indemnifying party was materially prejudiced by such
omission, 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, as such expenses are
incurred; provided, however, if the defendants (including any impleaded
parties) in any such action include both the indemnified party and the
indemnifying party, and counsel for the indemnified party shall have
concluded, in its reasonable judgment, 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).
(d) If the indemnification provided for in subparagraphs (a)
or (b) above shall be unenforceable under applicable law by an
indemnified party, each indemnifying party agrees to contribute to such
indemnified party with respect to any and all losses, claims, damages,
liabilities and expenses for which each indemnification provided for in
such subparagraphs (a) or
13
<PAGE>
(b) shall be unenforceable, in such proportion as shall be appropriate
to reflect the relative fault of each indemnifying party on the one
hand and the indemnified party on the other in connection with the
statements or omissions which have resulted in such losses, claims,
damages, liabilities, and expenses, as well as any other relevant
equitable considerations; provided, however, that no indemnified party
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act), shall be entitled to contribution from
any indemnifying party not guilty of such fraudulent misrepresentation.
Relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or the indemnified
party and each such party's relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement
or omission. The Company and the Underwriter agree that it would not be
just and equitable if contributions pursuant to this subparagraph 11(d)
were to be determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations
referred to above.
(e) For purposes of this paragraph 11, it is understood and
agreed that the only information provided by the Underwriter for
inclusion in the Registration Statement and the Prospectus was as
follows: second, fourth and fifth paragraphs of the section in the
Prospectus Supplement entitled "Underwriting."
12. Termination Date of this Agreement. This Agreement may be
terminated by the Underwriter at any time prior to the Closing Date by
delivering written notice thereof to the Company, if after the date hereof and
prior to such Closing Date (a) there shall have occurred any general suspension
of trading in securities on the New York Stock Exchange, or there shall have
been established by the New York 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 any 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 Underwriter, for the
Underwriter 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
Underwriter, to consummate the sale of the Securities and the delivery of the
Securities by the Underwriter at the initial public offering price or (d) there
shall have been any downgrading or any notice of any intended or potential
downgrading in the rating accorded the Company's securities by any "nationally
recognized statistical rating organization" as that term is defined by the
Commission for the purposes of Securities Act Rule 436(g)(2),or any such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of the Securities or any
of the Company's other outstanding debt. This Agreement may also be terminated
at any time prior to the Closing Date if in the reasonable judgment of the
Underwriter 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 the Underwriter 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.
14
<PAGE>
13. Miscellaneous. The validity and interpretation of this Agreement
shall be governed by the laws of the State of New York. Unless otherwise
specified, time of day refers to New York City time. This Agreement shall inure
to the benefit of, and be binding upon, the Company, the Underwriter, 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 Underwriter.
14. Notices. All communications hereunder shall be in writing or by
telefax and, if to the Underwriter, shall be mailed, transmitted by any standard
form of telecommunication or delivered to the Underwriter at the address set
forth above and if to the Company, shall be mailed or delivered to it at 411
Fayetteville Street, Raleigh, North Carolina 27601-1748, attention of Mark F.
Mulhern, Treasurer.
15. Counterparts. This Agreement may be simultaneously executed in
counterparts, each of which when so executed shall be deemed to be an original.
Such counterparts shall together constitute one and the same instrument.
16. Defined Terms. Unless otherwise defined herein, capitalized terms
used in this Underwriting Agreement shall have the meanings assigned to them in
the Registration Statement.
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
Underwriter in accordance with its terms.
Very truly yours,
CAROLINA POWER & LIGHT COMPANY
By : /s/ Mark F. Mulhern
------------------------------
Authorized Representative
Accepted as of the date first
above written, as Underwriter.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: /s/ Mary E. Ryan
------------------------------
Authorized Representative
15
<PAGE>
SCHEDULE I
Underwriting Agreement dated October 25, 1999
Registration Statement No.: 333-69237
Designation: Extendible Notes due October 28, 2009
Principal Amount: $500,000,000
Indenture dated as of October 28, 1999
Date of Maturity: October 28, 2009
Interest Rate: During the period from and including October 28, 1999 to but
excluding July 28, 2000, a rate equal to LIBOR plus a spread of 0.33% per annum,
reset monthly and payable monthly on or about the 28th of each month, commencing
November 28, 1999; during any subsequent period, a floating interest rate, or a
fixed interest rate, with an applicable spread , to be determined by the Company
and the Remarketing Agent as set forth in the Prospectus Supplement.
Purchase Price: 99.875% of the principal amount thereof.
Public Offering Price: Varying prices relating to prevailing market prices at
the time of sale.
Redemption Terms: Redeemable on and after July 28, 2000, or repayable at the
option of the holders, under certain circumstances, as described in the
Prospectus Supplement.
Closing Date and Location: October 28, 1999; Hunton & Williams, One Hannover
Square, 421 Fayetteville Street Mall, Raleigh, North Carolina 27601
16
--------------------------------------------------
CAROLINA POWER & LIGHT COMPANY
TO
THE CHASE MANHATTAN BANK,
TRUSTEE
------------
INDENTURE
(FOR DEBT SECURITIES)
DATED AS OF OCTOBER 28,1999
--------------------------------------------------
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS*
<S> <C> <C>
PARTIES......................................................................................................... 1
RECITAL OF THE COMPANY............................................................................................1
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION................................................1
Section 101. Definitions.................................................................................1
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 Debt 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.............................................................................13
ARTICLE II DEBT SECURITY FORMS..................................................................................14
Section 201. Forms Generally............................................................................14
Section 202. Form of Trustee's Certificate of Authentication............................................14
SECTION 203. DEBT SECURITIES ISSUABLE IN THE FORM OF A GLOBAL SECURITY...........................................15
ARTICLE III THE DEBT SECURITIES.................................................................................17
Section 301. Amount Unlimited; Issuable in Series.......................................................17
Section 302. Denominations..............................................................................20
Section 303. Execution, Authentication, Delivery and Dating.............................................20
Section 304. Temporary Debt Securities..................................................................23
Section 305. Registration, Registration of Transfer and Exchange........................................24
Section 306. Mutilated, Destroyed, Lost and Stolen Debt Securities......................................25
Section 307. Payment of Interest; Interest Rights Preserved.............................................26
Section 308. Persons Deemed Owners......................................................................27
</TABLE>
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* This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
(i)
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Section 309. Cancellation by Debt Security Registrar....................................................27
Section 310. Computation of Interest....................................................................28
Section 311. Payment to be in Proper Currency...........................................................28
ARTICLE IV REDEMPTION OF DEBT SECURITIES........................................................................28
Section 401. Applicability of Article...................................................................28
Section 402. Election to Redeem; Notice to Trustee......................................................28
Section 403. Selection of Debt Securities to be Redeemed................................................29
Section 404. Notice of Redemption.......................................................................29
Section 405. Debt Securities Payable on Redemption Date.................................................31
Section 406. Debt Securities Redeemed in Part...........................................................31
ARTICLE V SINKING FUNDS.........................................................................................31
Section 501. Applicability of Article...................................................................31
Section 502. Satisfaction of Sinking Fund Payments with Debt Securities.................................32
Section 503. Redemption of Debt Securities for Sinking Fund.............................................32
ARTICLE VI COVENANTS............................................................................................33
Section 601. Payment of Principal, Premium and Interest.................................................33
Section 602. Maintenance of Office or Agency............................................................33
Section 603. Money for Debt Securities Payments to be Held in Trust.....................................34
Section 604. Corporate Existence........................................................................35
Section 605. Maintenance of Properties..................................................................35
Section 606. Annual Officer's Certificate as to Compliance..............................................35
Section 607. Waiver of Certain Covenants................................................................36
ARTICLE VII SATISFACTION AND DISCHARGE..........................................................................36
Section 701. Satisfaction and Discharge of Debt Securities..............................................36
Section 702. Satisfaction and Discharge of Indenture....................................................39
Section 703. Application of Trust Money.................................................................39
ARTICLE VIII EVENTS OF DEFAULT; REMEDIES........................................................................40
Section 801. Events of Default..........................................................................40
Section 802. Acceleration of Maturity; Rescission and Annulment.........................................41
Section 803. Collection of Indebtedness and Suits for Enforcement by Trustee............................43
Section 804. Trustee May File Proofs of Claim...........................................................43
Section 805. Trustee May Enforce Claims Without Possession of Debt Securities...........................44
Section 806. Application of Money Collected.............................................................44
Section 807. Limitation on Suits........................................................................44
Section 808. Unconditional Right of Holders to Receive Principal, Premium and Interest..................45
Section 809. Restoration of Rights and Remedies.........................................................45
</TABLE>
(ii)
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Section 810. Rights and Remedies Cumulative.............................................................46
Section 811. Delay or Omission Not Waiver...............................................................46
Section 812. Control by Holders of Debt Securities......................................................46
Section 813. Waiver of Past Defaults....................................................................46
Section 814. Undertaking for Costs......................................................................47
Section 815. Waiver of Stay or Extension Laws...........................................................47
ARTICLE IX THE TRUSTEE..........................................................................................48
Section 901. Certain Duties and Responsibilities........................................................48
Section 902. Notice of Defaults.........................................................................49
Section 903. Certain Rights of Trustee..................................................................49
Section 904. Not Responsible for Recitals or Issuance of Debt Securities................................51
Section 905. May Hold Debt Securities...................................................................51
Section 906. Money Held in Trust........................................................................51
Section 907. Compensation and Reimbursement.............................................................52
Section 908. Disqualification; Conflicting Interests....................................................53
Section 909. Corporate Trustee Required; Eligibility....................................................53
Section 910. Resignation and Removal; Appointment of Successor..........................................53
Section 911. Acceptance of Appointment by Successor.....................................................55
Section 912. Merger, Conversion, Consolidation or Succession to Business................................56
Section 913. Preferential Collection of Claims Against Company..........................................57
Section 914. Co-trustees and Separate Trustees..........................................................57
Section 915. Appointment of Authenticating Agent........................................................58
ARTICLE X HOLDERS'LISTS AND REPORTS BY TRUSTEE AND COMPANY......................................................60
Section 1001. Lists of Holders..........................................................................60
Section 1002. Reports by Trustee and Company............................................................61
ARTICLE XI CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER..................................................62
Section 1101. Company May Consolidate, Etc., Only on Certain Terms......................................62
Section 1102. Successor Corporation Substituted.........................................................62
ARTICLE XII SUPPLEMENTAL INDENTURES.............................................................................63
Section 1201. Supplemental Indentures Without Consent of Holders........................................63
Section 1202. Supplemental Indentures With Consent of Holders...........................................65
Section 1203. Execution of Supplemental Indentures......................................................66
Section 1204. Effect of Supplemental Indentures.........................................................66
Section 1205. Conformity With Trust Indenture Act.......................................................66
Section 1206. Reference in Debt Securities to Supplemental Indentures...................................67
Section 1207. Modification Without Supplemental Indenture...............................................67
</TABLE>
(iii)
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE XIII MEETINGS OF HOLDERS; ACTION WITHOUT MEETING........................................................67
Section 1301. Purposes for Which Meetings May be Called.................................................67
Section 1302. Call, Notice and Place of Meetings........................................................67
Section 1303. Persons Entitled to Vote at Meetings......................................................68
Section 1304. Quorum; Action............................................................................68
Section 1305. Attendance at Meetings; Determination of Voting Rights; Conduct and Adjournment
of Meetings...........................................................................69
Section 1306. Counting Votes and Recording Action of Meetings...........................................70
Section 1307. Action Without Meeting....................................................................71
ARTICLE XIV IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.....................................71
Section 1401. Liability Solely Corporate................................................................71
TESTIMONIUM......................................................................................................71
SIGNATURE AND SEALS...............................................................................................1
</TABLE>
(iv)
<PAGE>
CAROLINA POWER & LIGHT COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF OCTOBER 28, 1999
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
<S> <C> <C>
ss.310 (a)(1) ...................................................................... 909
(a)(2) ...................................................................... 909
(a)(3) ...................................................................... 914
(a)(4) ...................................................................... Not Applicable
(b) ...................................................................... 908
910
ss.311 (a) ...................................................................... 913
(b) ...................................................................... 913
(c) ...................................................................... 913
ss.312 (a) ...................................................................... 1001
(b) ...................................................................... 1001
(c) ...................................................................... 1001
ss.313 (a) ...................................................................... 1002
(b) ...................................................................... 1002
(c) ...................................................................... 1002
(d) ...................................................................... 1002
ss.314 (a) ...................................................................... 1002
(a)(4) ...................................................................... 606
(b) ...................................................................... Not Applicable
(c)(1) ...................................................................... 102
(c)(2) ...................................................................... 102
(c)(3) ...................................................................... Not Applicable
(d) ...................................................................... Not Applicable
(e) ...................................................................... 102
ss.315 (a) ...................................................................... 901
903
(b) ...................................................................... 902
(c) ...................................................................... 901
(d) ...................................................................... 901
(e) ...................................................................... 814
ss.316 (a) ...................................................................... 812
...................................................................... 813
(a)(1)(A)...................................................................... 802
812
(a)(1)(B)...................................................................... 813
(a)(2) ...................................................................... Not Applicable
(b) ...................................................................... 808
ss.317 (a)(1) ...................................................................... 803
(a)(2) ...................................................................... 804
(b) ...................................................................... 603
ss.318 (a) ...................................................................... 107
</TABLE>
(v)
<PAGE>
INDENTURE, dated as of October 28, 1999, between CAROLINA
POWER & LIGHT COMPANY, a corporation duly organized and existing under the laws
of the State of North Carolina (herein called the "Company"), having its
principal office at 411 Fayetteville Street, Raleigh, North Carolina 27601-1748,
and The Chase Manhattan BANK, a banking corporation organized under the laws of
the State of New York, having its principal corporate trust office at 450 West
33rd Street, New York, New York 10001, 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 senior
unsubordinated, unsecured notes (herein called the "Debt Securities"), in an
unlimited aggregate principal amount, 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 Debt Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Debt
Securities or of series thereof, as follows:
ARTICLE I
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
1
<PAGE>
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 Debt
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 pursuant to
Section 915 to act on behalf of the Trustee to authenticate one or more series
of Debt Securities or Tranche thereof.
"AUTHORIZED OFFICER" means the Chairman of the Board, 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 or any director or
directors and/or officer or officers of the Company to whom that board or
committee shall have duly delegated its authority 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 Debt 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
2
<PAGE>
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 450 West 33rd Street, New York, New York 10001.
"CORPORATION" means a corporation, association, company,
limited liability company, joint stock company or business trust.
"DEBT SECURITIES" has the meaning stated in the first recital
of this Indenture and more particularly means any securities authenticated and
delivered under this Indenture.
"DEBT SECURITY REGISTER" and "DEBT SECURITY REGISTRAR" have
the respective meanings specified in Section 305.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DEPOSITORY" shall mean, with respect to Debt Securities of
any series, for which the Company shall determine that such Debt Securities will
be issued as a Global Security, The Depository Trust Company, New York, New
York, another clearing agency, or any successor registered as a clearing agency
under the Exchange Act or other applicable statute or regulation, which, in each
case, shall be designated by the Company pursuant to Section 203(d).
"DESIGNATED TRUSTEE OFFICE" means any office or offices of the
Trustee or any Affiliate, servicer or other agent of the Trustee from time to
time established by the Trustee in its discretion as the location at which
particular actions or functions (for example, registration of securities and
paying agent responsibilities) will occur. The Trustee shall, upon the written
request of the Company or any Holder, provide the Company or such Holder with a
written list of its Designated Trustee Offices hereunder, but, in the absence of
such written request or unless otherwise provided herein or unless necessary for
the proper performance by the Trustee of its responsibilities hereunder, the
Trustee may establish and change its Designated Trustee Offices hereunder
without notice to the Company or any Holder.
3
<PAGE>
"DISCOUNT DEBT SECURITY" means any Debt 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 Debt Security means interest,
if any, borne by such Debt 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 Debt Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Debt 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 Debt
Securities, as contemplated by Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section 801.
"EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended.
"GLOBAL SECURITY" shall mean, with respect to the Debt
Securities, a Debt Security executed by the Company and delivered by the Trustee
to the Depository or pursuant to the Depository's instruction, all in accordance
with this Indenture, which shall be registered in the name of the Depository or
its nominee.
"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 $100,000,000; 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
4
<PAGE>
such obligations or specific payments and shall not be permitted to
make any deduction therefrom.
"HOLDER" means a Person in whose name a Debt Security is
registered in the Debt Security Register.
"INDEMNITEES" has the meaning given in Section 907.
"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 or Officer's Certificates supplemental hereto entered into
pursuant to the applicable provisions hereof and shall include the terms of
particular series of Debt Securities established as contemplated by Section 301.
"INTEREST PAYMENT DATE", when used with respect to any Debt
Security, means the Stated Maturity of an installment of interest on such Debt
Security.
"LOSSES" has the meaning given in Section 907.
"MATURITY", when used with respect to any Debt Security, means
the date on which the principal of such Debt Security or an installment of
principal becomes due and payable as provided in such Debt 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 Debt Securities,
means, as of the date of determination, all Debt Securities theretofore
authenticated and delivered under this Indenture, except:
(a) Debt Securities theretofore canceled by the Trustee or the
Debt Security Registrar or delivered to the Trustee or the Debt
Security Registrar for cancellation;
(b) Debt Securities deemed to have been paid in accordance
with Section 701; and
(c) Debt Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Debt Securities have
been authenticated and delivered pursuant to this Indenture, other than
any such Debt Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it and the Company that
such Debt Securities are held by a bona fide purchaser or purchasers in
whose hands such Debt Securities are valid obligations of the Company;
5
<PAGE>
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Debt Securities Outstanding under this
Indenture, or the Outstanding Debt 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 Debt
Securities,
(x) Debt Securities owned by the Company or any other
obligor upon the Debt Securities or any Affiliate of the
Company or of such other obligor (unless the Company, such
Affiliate or such obligor owns all Debt Securities Outstanding
under this Indenture, or all Outstanding Debt 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 Debt Securities which the
Trustee knows to be so owned shall be so disregarded;
provided, however, that Debt 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 Debt Securities
and that the pledgee is not the Company or any other obligor
upon the Debt Securities or any Affiliate of the Company or of
such other obligor; and
(y) the principal amount of a Discount Debt 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;
provided, further, that, in the case of any Debt Security the principal of which
is payable from time to time without presentment or surrender, the principal
amount of such Debt 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 Debt Securities on behalf of the Company.
"PERIODIC OFFERING" means an offering of Debt Securities of a
series from time to time any or all of the specific terms of which Debt
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 Debt Securities.
"PERSON" means any individual, corporation, partnership, joint
venture, trust or unincorporated organization or any Governmental Authority.
6
<PAGE>
"PLACE OF PAYMENT", when used with respect to the Debt
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 Debt Securities
of such series or Tranche are payable.
"PREDECESSOR DEBT SECURITY" of any particular Debt Security
means every previous Debt Security evidencing all or a portion of the same debt
as that evidenced by such particular Debt Security; and, for the purposes of
this definition, any Debt Security authenticated and delivered under Section 306
in exchange for or in lieu of a mutilated, destroyed, lost or stolen Debt
Security shall be deemed (to the extent lawful) to evidence the same debt as the
mutilated, destroyed, lost or stolen Debt Security.
"REDEMPTION DATE", when used with respect to any Debt 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 Debt
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 Debt 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.
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest on the Debt 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 interest. Any
calculation or other determination to be made under this Indenture by reference
to the Stated Interest Rate on a Debt Security shall be made without regard to
the effective interest cost to the Company of such Debt Security and without
regard to the Stated Interest Rate on, or the effective cost to the Company of,
any other indebtedness in respect of which the Company's obligations are
evidenced or secured in whole or in part by such Debt 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 Debt Securities which (a) are of
the same series and (b) have identical terms except as to principal amount.
7
<PAGE>
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as
in force and effect as of the date of execution of this Indenture; provided,
however, that in the event the Trust Indenture Act of 1939 is succeeded by
another statute or is amended after such date, "Trust Indenture Act" shall mean
such successor statute or the Trust Indenture Act of 1939, as so amended, to the
extent such successor statute or amendment is applicable to this Indenture or to
the actions of the Company or the Trustee under or pursuant to this Indenture.
"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 Debt 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 Debt Securities of
any series shall mean the Trustee with respect to Debt 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 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.
8
<PAGE>
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 or had or could be expected to have
a material adverse effect on the Holders of any Debt Securities issued
hereunder). Without limiting the generality of the foregoing, any Debt
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 Debt
Securities.
9
<PAGE>
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 Debt 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 Debt Securities held by any Person, and the date of holding
the same, shall be proved by the Debt 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 Debt Security and the Holder of every Debt
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 Debt 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 Debt 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
Debt
10
<PAGE>
Securities by written notice by such Holder or any subsequent Holder,
proven in the manner in which such instrument was proven.
(f) Debt 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 Debt 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 Debt 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, 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 Debt 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 Debt
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 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 certified or
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:
11
<PAGE>
If to the Trustee, to:
The Chase Manhattan Bank
c/o Chase National Corporate Services, Inc.
3800 Colonnade Parkway, Suite 490
Birmingham, Alabama 35243
Telephone: 205-968-0500
Telecopy: 205-968-9109
If to the Company, to:
Carolina Power & Light Company
411 Fayetteville Street
Raleigh, North Carolina 27601-1768
Attention: Mark F. Mulhern, 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 or other direct written
electronic means, upon date of receipt of the transmission, and if transmitted
by certified or registered mail, on the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF DEBT 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 Debt 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.
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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 Debt Securities, express or
implied, shall give to any Person, other than the parties hereto, their
successors hereunder, and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Debt Securities shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to conflicts of law principles thereof, 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 Debt Security shall not be a Business Day at any Place
of Payment, then (notwithstanding any other provision of this Indenture or of
the Debt Securities other than a provision in Debt Securities of any series, or
any Tranche thereof, or in the indenture supplemental hereto, Board Resolution
or Officer's Certificate which establishes the terms of the Debt 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 with the same force
and effect as if made on the Interest Payment Date or Redemption Date, or at
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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 II
DEBT SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Debt 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 Debt
Securities, as evidenced by their execution of the Debt Securities. If the form
or forms of Debt Securities of any series are established in a Board Resolution
or in an Officer's Certificate pursuant to an indenture supplement hereto or 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
Debt Securities.
Unless otherwise specified as contemplated by Sections 301 or
1201(g), the Debt Securities of each series shall be issuable in registered form
without coupons. The definitive Debt Securities shall be produced in such manner
as shall be determined by the officers executing such Debt 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:
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This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:____________________ THE CHASE MANHATTAN BANK
as Trustee
By:______________________________
Authorized Representative
SECTION 203 DEBT SECURITIES ISSUABLE IN THE FORM OF A GLOBAL SECURITY.
(a) If the Company shall establish pursuant to Section 301 that the
Debt Securities of a particular series are to be issued in whole or in part in
the form of one or more Global Securities, then the Company shall execute and
the Trustee shall, in accordance with Section 303 and the Company Order
delivered to the Trustee thereunder, authenticate and deliver such Global
Security or Securities, which (i) shall represent, and shall be denominated in
an amount equal to the aggregate principal amount of the Outstanding Debt
Securities of such series to be represented by such Global Security or
Securities, (ii) may provide that the aggregate amount of Outstanding Debt
Securities represented thereby may from time to time be increased or reduced to
reflect exchanges, (iii) shall be registered in the name of the Depository for
such Global Security or Securities or its nominee, (iv) shall be delivered by
the Trustee to the Depository or pursuant to the Depository's instruction and
(v) shall bear a legend in accordance with the requirements of the Depository.
(b) Notwithstanding any other provision of this Section 203 or of
Section 305, subject to the provisions of paragraph (c) below, unless the terms
of a Global Security expressly permit such Global Security to be exchanged in
whole or in part for individual Debt Securities, a Global Security may be
transferred, in whole but not in part and in the manner provided in Section 305,
only to a nominee of the Depository for such Global Security, or to the
Depository, or to a successor Depository for such Global Security selected or
approved by the Company, or to a nominee of such successor Depository.
(c) (1) If at any time the Depository for a Global Security notifies
the Company that it is unwilling or unable to continue as a Depository for such
Global Security or if at any time the Depository for the Debt Securities for
such series shall no longer be eligible or in good standing under the Exchange
Act, or other applicable statute or regulation, the Company shall appoint a
successor Depository with respect to such Global Security. If a successor
Depository for such Global Security is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such
ineligibility, the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of individual Debt Securities
of such series in exchange for such Global Security, will authenticate and
deliver individual Debt
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Securities of such series of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of the Global Security
in exchange for such Global Security. Such Debt Securities will be issued in
registered form to such Persons as are specified by the Depository.
(2) The Company may at any time and in its sole discretion determine
that the Debt Securities of any series issued or issuable in the form of one or
more Global Securities shall no longer be represented by such Global Security or
Securities. In addition, if an Event of Default shall have occurred and be
continuing, the holders of more than 50% of the aggregate principal amount of
Debt Securities of any series may determine that the Debt Securities of that
Series will no longer be represented by such Global Security or Securities. In
either such event the Company will execute, and the Trustee, upon receipt of a
Company Request for the authentication and delivery of individual Debt
Securities of such series in exchange in whole or in part for such Global
Security, will authenticate and deliver without service charge to each person
specified by the Depository individual Debt Securities of such series of like
tenor and terms in definitive form in an aggregate principal amount equal to the
principal amount of such Global Security or Securities representing such series
in exchange for such Global Security or Securities.
(3) If specified by the Company pursuant to Section 301 with respect
to Debt Securities issued or issuable in the form of a Global Security, the
Depository for such Global Security may surrender such Global Security in
exchange in whole or in part for individual Debt Securities of such series of
like tenor and terms in definitive form on such terms as are acceptable to the
Company and such Depository. Thereupon the Company shall execute, and the
Trustee shall authenticate and deliver, without service charge, (A) to each
Person specified by such Depository a new Debt Security or Securities of the
same series of like tenor and terms and any authorized denomination as requested
by such Person in aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and (B) to such Depository
a new Global Security of like tenor and terms and in an authorized denomination
equal to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Debt Securities delivered
to Holders thereof.
(4) In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee will authenticate and
deliver individual Debt Securities in definitive form in authorized
denominations. Upon the exchange of the entire principal amount of a Global
Security for individual Debt Securities, such Global Security shall be cancelled
by the Trustee. Except as provided in the preceding paragraph, Debt Securities
issued in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depository
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. Provided that the Company
and the Trustee have so agreed, the Trustee shall deliver such Debt Securities
to the Persons in whose names the Debt Securities are registered.
(5) Any endorsement of a Global Security to reflect the amount, or any
increase or decrease in the amount, or changes in the rights of Holders, of
Outstanding Debt Securities represented thereby shall be made in such manner and
by such Person or Persons as
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shall be specified therein or in the Company Order to be delivered pursuant to
Section 303 with respect thereto. Subject to the provisions of Section 303, the
Trustee shall deliver and redeliver any such Global Security in the manner and
upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 has been,
or simultaneously is, delivered, any instructions by the Company with respect to
such Global Security shall be in writing but need not be accompanied by or
contained in an Officer's Certificate and need not be accompanied by an Opinion
of Counsel.
ARTICLE III
THE DEBT SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. Subject to
the last paragraph of this Section, prior to the authentication and delivery of
Debt 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 Debt Securities of such series (which
shall distinguish the Debt Securities of such series from Debt
Securities of all other series);
(b) any limit upon the aggregate principal amount of the Debt
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 Debt Securities of the series pursuant to Section 304,
305, 306, 406 or 1206 and, except for any Debt 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 Debt 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 Debt Securities (or one or more
Predecessor Debt 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 to an index or other fact or event
ascertainable outside of this Indenture or otherwise (without regard
to any provisions for redemption, prepayment, acceleration, purchase
or extension);
(e) the rate or rates at which the Debt Securities of such
series, or any Tranche thereof, shall bear interest, if any (including
the rate or rates at which overdue principal
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shall bear interest, if different from the rate or rates at which such
Debt 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), the period or periods during which such
rate or rates shall be applicable, or any formulary or other method or
other means by which such rate or rates, and any period or periods,
shall be determined, by reference to an index or other fact or event
ascertainable outside of this Indenture 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 Debt Securities on any
Interest Payment Date; 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 Debt
Securities of such series, or any Tranche thereof, shall be payable,
(2) registration of transfer of Debt Securities of such series, or any
Tranche thereof, may be effected, (3) exchanges of Debt 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 Debt Securities
of such series, or any Tranche thereof, and this Indenture may be
served; the Debt 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 Debt 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 Debt
Securities of any series, or any Tranche thereof, resulting in
delisting of such Debt Securities from any national exchange;
(h) the obligation or obligations, if any, of the Company to
redeem or purchase the Debt Securities of such series, or any Tranche
thereof, pursuant to any sinking fund or other mandatory redemption or
tender 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 Debt
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 Debt 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 Debt Securities of such series, or any
Tranche thereof, shall be payable (if other than in Dollars);
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(k) if the principal of or premium, if any, or interest, if
any, on the Debt 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 Debt 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, if
any, on the Debt 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 Debt 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 Debt 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 Debt Securities of such series, and
any covenants of the Company for the benefit of the Holders of the
Debt 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 Debt 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 Debt
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 Debt Securities after the
satisfaction and discharge thereof as provided in Section 701;
(r) whether the Debt Securities of the series shall be issued
in whole or in part in the form of a Global Security or Securities;
the terms and conditions, if any, upon which such Global Security or
Securities may be exchanged in whole or in part for certificated Debt
Securities of such series and of like tenor of any authorized
denomination and the circumstances under which such exchange may
occur, if other than in the manner provided for in Section 203; the
Depository for such Global Security or
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Securities; and the form of any legend or legends to be borne by any
such Global Security in addition to or in lieu of the legend referred
to in Section 203;
(s) if the Debt Securities of such series, or any Tranche
thereof, are to be issuable in bearer form, 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
Debt Securities of such Series, or any Tranche thereof, to transfer or
exchange such Debt 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 Debt 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 Debt Securities of
such series, or any Tranche thereof;
(v) any collateral security, assurance or guarantee for such
series of Debt Securities; and
(w) any other terms of the Securities of such series, or any
Tranche thereof, not inconsistent with the provisions of this
Indenture.
With respect to Debt 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 Debt Securities of such series and provide
either that the specific terms of Debt 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 clause (b) of the third paragraph 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 Debt 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 Debt Securities, or any Tranche thereof, the Debt
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 Debt Securities may be manual or facsimile.
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Debt 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 Debt Securities or did not hold such offices at the date of such Debt
Securities.
The Trustee shall authenticate and deliver Debt 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 Debt Securities and, to the extent that the terms of such Debt
Securities shall not have been established in an indenture
supplemental hereto or in a Board Resolution, or in an Officer's
Certificate, all as contemplated by Sections 201 and 301, either (i)
establishing such terms or (ii) in the case of Debt Securities of a
series subject to a Periodic Offering, specifying procedures,
acceptable to the Trustee, by which such terms are to be established
in either case in accordance with the instrument or instruments
delivered pursuant to clause (a) above;
(c) the Debt Securities of such series, executed on behalf of
the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such Debt Securities have
been duly authorized by the Company and have been established
in conformity with the provisions of this Indenture;
(ii) the terms of such Debt Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture; and
(iii) assuming authentication and delivery by the
Trustee and subject to any conditions specified in such
Opinion of Counsel, such Debt Securities will have been duly
issued under the Indenture and will be legal, valid and
binding obligations of the Company, 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 Debt 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
Debt Securities (provided that such Opinion of Counsel
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addresses the authentication and delivery of all Debt 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 Debt 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 Debt 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 Debt 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 Debt 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 Debt 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 Debt 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 Debt 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 Debt 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 Debt Securities if the issuance of such Debt
Securities pursuant to this Indenture will materially or adversely affect the
Trustee's own rights, duties or immunities under the Debt 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 Debt Securities, or any Tranche thereof, each Debt
Security shall be dated the date of its authentication.
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Unless otherwise specified as contemplated by Section 301 with
respect to any series of Debt Securities, or any Tranche thereof, no Debt
Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Debt 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 Debt Security shall be conclusive evidence, and the only evidence, that
such Debt Security has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture. Notwithstanding the foregoing, if
any Debt 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 Debt Security to the
Debt Security Registrar 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 Debt Security has never
been issued and sold by the Company, for all purposes of this Indenture such
Debt Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits hereof.
SECTION 304. TEMPORARY DEBT SECURITIES.
Pending the preparation of definitive Debt Securities of any
series, or any Tranche thereof, the Company may execute, and upon Company Order
the Trustee shall authenticate and deliver, temporary Debt Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Debt
Securities in lieu of which they are issued, with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Debt Securities may determine, as evidenced by their execution of such Debt
Securities; provided, however, that temporary Debt Securities need not recite
specific redemption, sinking fund, conversion or exchange provisions.
Unless otherwise specified as contemplated by Section 301 with
respect to the Debt Securities of any series, or any Tranche thereof, after the
preparation of definitive Debt Securities of such series or Tranche, the
temporary Debt Securities of such series or Tranche shall be exchangeable,
without charge to the Holder thereof, for definitive Debt Securities of such
series or Tranche, upon surrender of such temporary Debt Securities at the
office or agency of the Company maintained pursuant to Section 602 in a Place of
Payment for such Debt Securities. Upon such surrender of temporary Debt
Securities, the Company shall, except as aforesaid, execute and the Trustee
shall authenticate and deliver in exchange therefor definitive Debt 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
Debt Securities shall in all respects be entitled to the same benefits under
this Indenture as definitive Debt Securities of the same series and Tranche and
of like tenor authenticated and delivered hereunder.
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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 Debt Securities of each series or
any Tranche thereof, a register (all registers kept in accordance with this
Section being collectively referred to as the "Debt Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Debt Securities of such series or Tranche
and the registration of transfer thereof. The Company shall designate one Person
to maintain the Debt Security Register for the Debt Securities of each series on
a consolidated basis, and such Person is referred to herein, with respect to
such series, as the "Debt 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 Debt Securities of one or more
series, or any Tranche or Tranches thereof, shall be maintained, and the Company
may designate itself the Debt Security Registrar with respect to one or more of
such series. The Debt 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 Debt Securities of any series, or any Tranche thereof, upon
surrender for registration of transfer of any Debt 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 Debt 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 Debt Securities of any series, or any Tranche thereof, any
Debt Security of such series or Tranche may be exchanged at the option of the
Holder, for one or more new Debt Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate principal amount, upon
surrender of the Debt Securities to be exchanged at any such office or agency.
Whenever any Debt Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Debt Securities
which the Holder making the exchange is entitled to receive.
All Debt Securities delivered upon any registration of
transfer or exchange of Debt Securities shall be valid obligations of the
Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered upon such registration of transfer
or exchange.
Every Debt Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company, the Trustee or
the Debt 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 Debt 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 Debt Securities of any series, or any Tranche thereof, no service
charge shall be made for any
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registration of transfer or exchange of Debt 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 Debt 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) Debt Securities of any
series, or any Tranche thereof, during a period of 15 days immediately preceding
the day of the mailing of a notice of redemption of the Debt Securities of such
series or Tranche is to be given or (b) any Debt Security so selected for
redemption in whole or in part, except the unredeemed portion of any Debt
Security being redeemed in part.
None of the Company, the Trustee, any Paying Agent or the Debt
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN DEBT SECURITIES.
If any mutilated Debt Security is surrendered to the Trustee,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Debt 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 Debt 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
Debt Security is held by a Person purporting to be the owner of such Debt
Security, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Debt Security, a new Debt
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 Debt Security has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new Debt
Security, pay such Debt Security.
Upon the issuance of any new Debt 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 Debt Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Debt Security shall constitute
an original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Debt Security shall be at any time enforceable by
anyone other than the Holder of such new Debt Security, and any such
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new Debt Security shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Debt 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 Debt
Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301 with
respect to the Debt Securities of any series, or any Tranche thereof, interest
on any Debt 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
Debt Security (or one or more Predecessor Debt Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Debt 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 Debt Securities of such
series (or their respective Predecessor Debt 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 Debt 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 Debt Securities of such series at the
address of such Holder as it appears in the Debt 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 Debt Securities of such series
(or their respective Predecessor Debt Securities) are registered at
the close of business on such Special Record Date.
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(b) The Company may make payment of any Defaulted Interest on
the Debt Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Debt 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 Debt Security delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Debt Security shall
carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Debt Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Debt Security for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Debt Security is registered as
the absolute owner of such Debt 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 Debt Security and for all other purposes whatsoever,
whether or not such Debt Security is 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 DEBT SECURITY REGISTRAR.
All Debt Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any Person other
than the Debt Security Registrar, be delivered to the Debt Security Registrar
and, if not theretofore canceled, shall be promptly canceled by the Debt
Security Registrar. The Company may at any time deliver to the Debt Security
Registrar for cancellation any Debt 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 Debt Securities so
delivered shall be promptly canceled by the Debt Security Registrar. No Debt
Securities shall be authenticated in lieu of or in exchange for any Debt
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All certificates representing canceled Debt Securities held
by the Debt Security Registrar shall be disposed of in accordance with the
customary practices of the Debt Security Registrar at the time in effect, and
the Debt Security Registrar shall not be required to destroy any such
certificates. The Debt Security Registrar, if other than the trustee, shall
promptly deliver a certificate of disposition with respect to such disposed
certificates to the Trustee and the Company unless, by a Company Order,
similarly delivered, the Company shall direct that canceled Debt Securities be
returned to it. The Debt Security Registrar shall promptly deliver evidence of
any cancellation of a Debt Security in accordance with this Section to the
Trustee and the Company. If the Trustee is the entity acting as Debt Security
Registrar, it shall promptly deliver to the Company a certificate of disposition
with respect to any certificates disposed of and/or evidence of any cancellation
of a Debt Security, in each case in accordance with this Section, if so
requested by a Company Order.
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SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301
for Debt Securities of any series, or any Tranche thereof, interest on the Debt
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 Debt 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 Debt 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.
ARTICLE IV
REDEMPTION OF DEBT SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Debt 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 Debt 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 Debt Securities
shall be evidenced by a Board Resolution and/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 Debt Securities to be redeemed. In the case of any redemption of Debt
Securities (a) prior to the expiration of any restriction on such redemption
provided in the terms of such Debt Securities or elsewhere in this Indenture or
(b) pursuant to an election of the Company which is
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subject to a condition specified in the terms of such Debt Securities, the
Company shall furnish the Trustee with an Officer's Certificate evidencing
compliance with such restriction or condition.
SECTION 403. SELECTION OF DEBT SECURITIES TO BE REDEEMED.
If less than all the Debt Securities of any series, or any
Tranche thereof, are to be redeemed, the particular Debt Securities to be
redeemed shall be selected by the Trustee from the Outstanding Debt 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 Trustee 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 Debt Securities of
such series or Tranche or any integral multiple thereof) of the principal amount
of Debt Securities of such series or Tranche of a denomination larger than the
minimum authorized denomination for Debt 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 Debt
Securities then Outstanding of any series, or any Tranche thereof, and less than
all of such Debt Securities as to which such offer was made shall have been
tendered to the Company for such purchase, the Trustee, if so directed by
Company Order, shall select for redemption all or any principal amount of such
Debt Securities which have not been so tendered.
If the Debt Securities are then held in the form of a Global
Security, the Trustee shall select Debt Securities to be redeemed in accordance
with the customary procedures for the Depository.
The Trustee shall promptly notify the Company and the Debt
Security Registrar in writing of the Debt Securities selected for redemption
and, in the case of any Debt 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 Debt Securities
shall relate, in the case of any Debt Securities redeemed or to be redeemed only
in part, to the portion of the principal amount of such Debt 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 Debt 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,
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(c) if less than all the Debt Securities of any series or
Tranche are to be redeemed, the identification of the particular Debt
Securities to be redeemed and the portion of the principal amount of
any Debt 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 Debt Security to be redeemed
and, if applicable and provided that the Redemption Price is received
by the Paying Agent or Agents on or prior to the Redemption Date, that
interest thereon will cease to accrue on and after said date,
(e) the place or places where such Debt 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 Debt 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 (including CUSIP numbers with respect to such Debt
Securities, if the Company shall so elect, in which event such notice
of redemption may contain a disclaimer as to the correctness of such
numbers either as printed on the Debt Securities or on such notice of
redemption).
Unless otherwise specified with respect to any Debt Securities
in accordance with Section 301, with respect to any notice of redemption of Debt
Securities at the election of the Company, unless, upon the giving of such
notice, such Debt 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 Debt
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 Debt 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 Debt 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 Debt Securities otherwise to have been redeemed shall
promptly return to the Holders thereof any of such Debt Securities which had
been surrendered for payment upon such redemption.
Notice of redemption of Debt 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 Debt Security Registrar in the name and at the expense of the
Company. Notice of mandatory redemption of Debt Securities shall be given by the
Debt Security Registrar in the name and at the expense of the Company.
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SECTION 405. DEBT 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 Debt
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 Debt Securities or portions thereof, if interest-bearing,
shall cease to bear interest. Upon surrender of any such Debt Security for
redemption in accordance with such notice, such Debt 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 Debt Security; and provided, further, that
except as otherwise specified as contemplated by Section 301 with respect to
such Debt Security, any installment of interest on any Debt Security the Stated
Maturity of which installment is on or prior to the Redemption Date shall be
payable to the Holder of such Debt Security, or one or more Predecessor Debt
Securities, registered as such at the close of business on the related Regular
Record Date according to the terms of such Debt Security and subject to the
provisions of Section 307.
SECTION 406. DEBT SECURITIES REDEEMED IN PART.
Upon the surrender of any Debt 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 Debt
Security, without service charge, a new Debt Security or Debt 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 Debt Security so surrendered.
ARTICLE V
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of the Debt Securities of any series, or any
Tranche thereof, except as otherwise specified as contemplated by Section 301
for Debt Securities of such series or Tranche.
The minimum amount of any sinking fund payment provided for by
the terms of Debt 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 Debt Securities of any series,
or any Tranche thereof, is herein referred to as an
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"optional sinking fund payment." If provided for by the terms of Debt 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 Debt Securities of the series
or Tranche in respect of which it was made as provided for by the terms of such
Debt Securities.
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH DEBT SECURITIES.
The Company (a) may deliver to the Trustee Outstanding Debt
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 Debt Securities of such series or Tranche which have
been redeemed either at the election of the Company pursuant to the terms of
such Debt Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Debt Securities, in each case in
satisfaction of all or any part of such mandatory sinking fund payment;
provided, however, that no Debt Securities shall be applied in satisfaction of a
mandatory sinking fund payment if such Debt Securities shall have been
previously so applied. Debt Securities so applied shall be received and credited
for such purpose by the Trustee at the Redemption Price specified in such Debt
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 DEBT SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date
for the Debt 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; and
(e) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by delivering and crediting Debt
Securities of such series or Tranche pursuant to Section 502 and
stating the basis for such credit and that such Debt Securities have
not previously been so credited, and the Company shall also deliver to
the Trustee any Debt Securities to be so delivered.
If the Company shall not have delivered such Officer's
Certificate and, to the extent applicable, all such Debt Securities, on or prior
to the 45th day prior to such sinking fund payment date, the sinking fund
payment for such series or Tranche in respect of such sinking
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fund payment date 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 Debt Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 403 and the
Debt Security Registrar shall 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 Debt
Securities shall be made upon the terms and in the manner stated in Sections 405
and 406.
ARTICLE VI
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 Debt Securities of each series in accordance with
the terms of such Debt Securities and this Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for the
Debt Securities of each series, or any Tranche thereof, an office or agency
where payment of such Debt Securities shall be made, where the registration of
transfer or exchange of such Debt Securities may be effected and where notices
and demands to or upon the Company in respect of such Debt 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 Debt Securities of any series, or
any Tranche thereof, or shall fail to furnish the Trustee with the address
thereof, payment of such Debt Securities shall be made, registration of transfer
or exchange thereof may be effected and notices and demands in respect thereof
may be served at one or more Designated Trustee Offices specified from time to
time by 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 Debt 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 Debt
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 Debt 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.
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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 DEBT SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent
with respect to the Debt 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 Debt 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 Debt Securities) to make any payment of principal of or premium, if any,
or interest, if any, on such Debt Securities.
Whenever the Company shall have one or more Paying Agents for
the Debt 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 Debt 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 Debt
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 Debt 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 Debt Securities) to make any payment of
principal of or premium, if any, or interest, if any, on such Debt
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
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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 Debt 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 Debt Security shall, as an unsecured
general creditor and not as a Holder of an Outstanding Debt 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, 2000,
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,
stating whether, to such officer's knowledge, the Company is in 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,
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and making any other statements as may be required by the provisions of Section
314(a)(4) of the Trust Indenture Act.
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 Debt 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 Debt 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 Debt 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 VII
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF DEBT SECURITIES.
Any Debt Security or Debt 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 Debt 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,
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to pay when due the principal of and premium, if any, and interest, if
any, due and to become due on such Debt 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 Debt
Securities of any series or Tranche, such Debt Securities or portions
thereof shall have been selected by the Trustee 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 Debt 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 Debt Securities, an Officer's Certificate
stating the Company's intention that, upon delivery of such
Officer's Certificate, its indebtedness in respect of such
Debt Securities or portions thereof will have been satisfied
and discharged as contemplated in this Section.
If the Company shall make any deposit of money and/or Eligible
Obligations with respect to any Debt Securities, or any portion of the principal
amount thereof, as contemplated by this section, the Company shall not deliver
an Officer's Certificate described in clause (z) above unless the Company shall
also deliver to the Trustee, together with such Officer's Certificate, an
Opinion of Counsel to the effect that, as a result of a change in law occurring
after the date of this Indenture, the Holders of such Debt Securities, or
portions thereof, will not recognize income, gain or loss for United States
federal income tax purposes as a result of the satisfaction and discharge of the
Company's indebtedness in respect thereof and will be subject to United States
federal income tax on the same amounts, at the same times and in the same manner
as if such satisfaction and discharge had not been effected.
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 Debt Security or Debt 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 first
paragraph of this Section shall have been satisfied in respect of any Debt
Securities or portions thereof except that the Officer's Certificate specified
in
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clause (z) shall not have been delivered, such Debt Securities or portions
thereof shall nevertheless be deemed to have been paid for all purposes of this
Indenture, and the Holders of such Debt 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 Debt Securities or portions thereof as contemplated by Section 301, but the
indebtedness of the Company in respect of such Debt 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 Debt 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 Debt 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 Debt
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 Trustee shall select
such Debt Securities, or portions of principal amount thereof, in the manner
specified by Section 403 for selection for redemption of less than all the Debt
Securities of a series or Tranche.
In the event that Debt 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 Debt Securities, to the Holders of such Debt
Securities to the effect that such deposit has been made and the effect thereof.
Notwithstanding that any Debt 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 Debt Securities under Sections
304, 305, 306, 404, 503 (as to notice of redemption), 602, 603, 907, 914 and 915
and this Article 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 Debt 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
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representative under any applicable Federal or State bankruptcy, insolvency or
other similar law, such Debt 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 Debt Security shall be deemed to remain Outstanding and (b)
any satisfaction and discharge of the Company's indebtedness in respect of any
Debt 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 Debt 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 Debt 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,
914 and 915 and this Article 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 Debt 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 Debt 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, or an event
which, with the giving of notice or the passage of time, would become 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
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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 Debt 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, or an event which, with the giving of notice or the passage of time,
would become an Event of Default, any moneys held in accordance with this
Section on the Maturity of all such Debt Securities in excess of the amount
required to pay the principal of and premium, if any, and interest, if any, then
due on such Debt 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, or an event
which, with the giving of notice or the passage of time, would become 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, or
event which, with the giving of notice or the passage of time, would become an
Event of Default, shall have been waived or cured.
ARTICLE VIII
EVENTS OF DEFAULT; REMEDIES
SECTION 801. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Debt
Securities of any series, means any one of the following events:
(a) failure to pay interest, if any, on any Debt Security of
such series within thirty (30) days after the same becomes due and
payable; or
(b) failure to pay the principal of or premium, if any, on any
Debt Security of such series when due and payable; 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 Debt 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 Debt
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 Debt Securities of such
series not less than the principal amount of Debt 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
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of such principal amount of Debt Securities of such series, as the
case may be, shall be deemed to have agreed to an extension of such
period for a maximum of one hundred twenty (120) days 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 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 Debt
Securities of such series.
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default due to the default in payment of
principal of, or premium, if any, or interest on, any series of Debt Securities
or due to the default in the performance or breach of any other covenant or
warranty of the Company applicable to the Debt Securities of such series but not
applicable to all Outstanding Debt Securities shall have occurred and be
continuing, either the Trustee or the Holders of not less than 33% in principal
amount of the Debt Securities of such series may then declare the principal
amount (or, if any of the Debt Securities of such series are Discount Debt
Securities, such portion of the principal amount as may be specified in the
terms thereof as contemplated by Section 301) of all Debt Securities of such
series and premium, if payment of any thereof be in default, and interest
accrued thereon to be
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due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by the Holders). If an Event of Default due to default in the
performance of any other of the covenants or warranties herein applicable to all
Outstanding Debt Securities or an Event of Default specified in Section 801(d)
or (e) shall have occurred and be continuing, either the Trustee or the Holders
of not less than 33% in principal amount of all Debt Securities then Outstanding
(considered as one class), and not the Holders of the Debt Securities of any one
of such series, may declare the principal amount (or, if any of the Debt
Securities are Discount Debt Securities, such portion of the principal amount of
such Debt Securities as may be specified in the terms thereof as contemplated by
Section 301) of all Debt Securities and premium, if payment of any thereof be in
default, and interest accrued thereon to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by the Holders).
As a consequence of each such declaration (herein referred to as a declaration
of acceleration) with respect to Debt Securities of any series, the principal
amount (or portion thereof in the case of Discount Debt Securities) of such
Securities, premium, if any, and interest accrued thereon shall become due and
payable immediately.
At any time after such a declaration of acceleration with
respect to Debt 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 Debt Securities of such
series;
(2) the principal of and premium, if any, on any Debt
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 Debt 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 Debt Securities;
(4) all amounts due to the Trustee under Section 907; and
(b) any other Event or Events of Default with respect to Debt
Securities of such series, other than the non-payment of the principal
of Debt 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.
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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 Debt
Securities of the series with respect to which such Event of Default shall have
occurred, the whole amount then due and payable on such Debt 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 Debt 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 Debt
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 Debt Securities, wherever situated.
If an Event of Default with respect to Debt 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 Debt
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
Debt Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Debt
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 Debt 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,
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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
Debt 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 DEBT SECURITIES.
All rights of action and claims under this Indenture or the
Debt Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Debt 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.
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 Debt
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 Debt 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 Debt
Securities for principal, premium, if any, and interest, if any,
respectively; and
THIRD: To the payment of the remainder, if any, to the
Company, or to whomsoever may be lawfully entitled to receive the same
or as a court of competent jurisdiction may direct.
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:
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(a) such Holder shall have previously given written notice to
the Trustee of a continuing Event of Default with respect to the Debt
Securities of such series;
(b) the Holders of not less than a majority in aggregate
principal amount of the Outstanding Debt 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
Debt 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 Debt 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) interest, if any, on such Debt Security on the Stated
Maturity or Maturities expressed in such Debt 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.
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.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 DEBT SECURITIES.
If an Event of Default shall have occurred and be continuing
in respect of a series of Debt Securities, the Holders of a majority in
principal amount of the Outstanding Debt 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 Debt 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 Debt Securities, the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of all such
series, considered as one class, shall have the right to make such direction,
and not the Holders of the Debt 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 reasonable discretion be adequate, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Before proceeding to exercise any right or power hereunder at
the direction of such Holders, the Trustee shall be entitled to receive from
such Holders security or indemnity satisfactory to the Trustee in its reasonable
judgment, against the costs, expenses and liabilities which might be incurred by
it in compliance with any such direction.
SECTION 813. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any series may on behalf of the Holders of
all the Debt Securities of such
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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 Debt 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 Debt 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
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
Debt 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 Debt Security on or after the Stated Maturity or Maturities
expressed in such Debt 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.
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ARTICLE IX
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Trustee shall have and be subject to all the duties
and responsibilities specified with respect to an indenture trustee in
the Trust Indenture Act and no implied covenants or obligations shall
be read into this Indenture against the Trustee. For purposes of
Sections 315(a) and 315(c) of the Trust Indenture Act, the term
"default" is hereby defined as an Event of Default which has occurred
and is continuing.
(b) The Trustee, prior to the occurrence of an Event of
Default and after the curing or waiving of all Events of Default which
may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an
Event of Default of which a Responsible Officer of the Trustee has
actual knowledge has occurred (which has not been cured or waived) the
Trustee shall exercise 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 willful misconduct, except
that
(1) prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which may
have occurred
(A) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture,
and the Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth
in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(B) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any 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 that 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.
(d) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Officers of the
Trustee, unless it shall be proven that the Trustee was negligent in
ascertaining the pertinent facts.
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(e) 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 Debt Securities pursuant to Section
812, 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.
(f) 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, satisfactory to the Trustee in its reasonable judgment,
against such risk or liability is not reasonably assured to it.
(g) Notwithstanding anything contained in this Indenture to
the contrary, the duties and responsibilities of the Trustee under
this Indenture shall be subject to the protections, exculpations and
limitations on liability afforded to the Trustee under the provisions
of the Trust Indenture Act, including those provisions of such Act
deemed by such Act to be included herein.
(h) 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.
ECTION 902. NOTICE OF DEFAULTS.
The Trustee shall give the Holders notice of any default
hereunder with respect to the Debt Securities of any series to the Holders of
Debt Securities of such series of which it has knowledge (within the meaning of
Section 903(h) hereof) 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 60 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 conclusively rely and shall be fully
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;
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(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 of its selection and
the 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 security satisfactory to the
Trustee in its reasonable judgment 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 any number of agents (including, without limitation,
authenticating agents and paying agents), servicers, custodians,
nominees or attorneys (any or all of which agents, servicers,
custodians, nominees or attorneys, in the Trustee's discretion, may be
Affiliates of the Trustee) and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent, servicer,
contractor, nominee, or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be charged with knowledge of any
default or Event of Default with respect to the Debt 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
default or Event of Default or (2) written notice of such default or
Event of Default (which shall state that such notice is a "Notice of
Default" or a "Notice of an Event of Default" hereunder, as the case
may be) shall have been given to the Trustee by the Company, any other
obligor on such Debt Securities or by any Holder of such Debt
Securities;
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(i) the Trustee shall not be liable for any action taken or
omitted by it in good faith, without negligence, and believed by it to
be authorized or within the discretion or rights or powers conferred
upon it by this Indenture;
(j) the Trustee shall not be bound to ascertain or inquire as
to the performance or observance of any covenants, conditions or
agreements on the part of the Company, except as otherwise set forth
herein, but the Trustee may require of the Company, full information
and advice as to the performance of the covenants, conditions and
agreements contained herein and shall be entitled in connection
herewith to examine the books, records and premises of the Company;
(k) in no event shall the Trustee be liable for the selection
of investments or for investment losses incurred thereon. The Trustee
shall have no liability in respect of losses as a result of the
liquidation of any investment prior to its stated maturity or the
failure of the party directing such investment to provide timely
written investment direction. The Trustee shall have no obligation to
invest or reinvest any amounts held hereunder in the absence of such
written investment direction; and
(l) in the event that the Trustee is also acting as
Authenticating Agent, Paying Agent, Debt Security Registrar, exchange
agent or transfer agent hereunder, the rights, indemnities (including
without limitation Section 907) and protections afforded to the
Trustee pursuant to this Article Nine shall also be afforded to such
Authenticating Agent, Paying Agent, Debt Security Registrar, exchange
agent or transfer agent.
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBT SECURITIES.
The recitals contained herein and in the Debt 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 Debt Securities. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Debt Securities or the proceeds thereof.
SECTION 905. MAY HOLD DEBT SECURITIES.
Each of the Trustee, any Authenticating Agent, any Paying Agent, any
Debt Security Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Debt 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, Debt 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 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.
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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
costs of collection (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, willful misconduct or bad faith; and
(c) indemnify, defend and hold the Trustee and its directors,
officers, agents and employees (collectively, the "Indemnitees")
harmless from and against any and all claims, liabilities, losses,
damages, fines, penalties, taxes (other than taxes on the income of
the Trustee) and expenses, including out-of-pocket and incidental
expenses and legal fees (including the allocated costs and expenses of
in-house counsel and legal staff) ("Losses") that may be imposed on,
incurred by, or asserted against, the Indemnitees or any of them for
following any instructions or other directions upon which the Trustee
is authorized to rely pursuant to the terms of this Indenture; and
(d) in addition to and not in limitation of clause (c) above
of this Paragraph, indemnify, defend and hold harmless the Indemnitees
and each of them from and against any and all Losses that may be
imposed on, incurred by, or asserted against, the Indemnitees or any
of them in connection with or arising out of the exercise or
performance by the Trustee of any of its powers or duties under this
Indenture, provided that the Indemnitees have not acted with
negligence or bad faith or engaged in willful misconduct.
(e) In connection with claims for which indemnification is
provided under paragraphs (c) or (d) above, the Company shall assume
the defense of the Indemnitees with counsel acceptable to the Trustee,
provided that the Trustee may employ separate counsel and participate
in the defense but the fees and expenses of such separate counsel
shall be at its own expense.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the Debt
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, willful
misconduct or bad faith of any Trustee hereunder shall not affect the rights of
any other Trustee hereunder.
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When a Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 801(d) or Section
801(e), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section 907 shall survive termination
of this Indenture.
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 shall not be deemed to have a
conflicting interest by virtue of being a Trustee under this Indenture with
respect to Debt Securities of more than one 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 $100,000,000
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 $100,000,000 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
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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
Debt 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 Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Debt Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Debt 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 Debt 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 Debt 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 Debt Securities
of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the
Debt Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Debt
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 Debt 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 Debt Securities of
any series shall be appointed by Act of the Holders of a
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majority in principal amount of the Outstanding Debt 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 Debt
Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect
to the Debt 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 Debt 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 Debt 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 Debt 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 or, should the Company fail so to act
promptly, the successor Trustee, at the expense of the Company, shall
give notice of each resignation and each removal of the Trustee with
respect to the Debt Securities of any series and each appointment of a
successor Trustee with respect to the Debt Securities of any series by
mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Debt Securities of such series as their
names and addresses appear in the Debt Security Register. Each notice
shall include the name of the successor Trustee with respect to the
Debt 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 Debt 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
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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 Debt Securities of one or more (but not
all) series, the Company, the retiring Trustee and each successor
Trustee with respect to the Debt 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 Debt 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 Debt 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 Debt 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 Debt 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 Debt 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
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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 Debt 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 Debt Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such
Debt 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 Debt 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
Debt 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 join 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.
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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 Debt 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 Debt Securities of one or more series, or any Tranche thereof,
which shall be authorized to act on behalf of the Trustee to authenticate Debt
Securities of such series or Tranche issued upon original issuance, exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Debt Securities so authenticated shall be entitled to the benefits of
this
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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 Debt 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 45
days 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 Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
The provisions of Sections 308, 904 and 905 shall be
applicable to each Authenticating Agent.
If an appointment with respect to the Debt Securities of one
or more series, or any
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Tranche thereof, shall be made pursuant to this Section, the Debt 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 Debt Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated:___________________________
By___________________________
As Trustee
By___________________________
As Authenticating Agent
By___________________________
Authorized Signatory
If all of the Debt Securities of a series may not be
originally issued at one time, and if the Trustee does not have an office
capable of authenticating Debt Securities upon original issuance located in a
Place of Payment where the Company wishes to have Debt 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 Debt Securities.
ARTICLE X
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1001. LISTS OF HOLDERS.
Semiannually, between March 15 and April 1 and between
September 15 and October 1 in each year, commencing with the year 2000, 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
Debt Security Registrar. Every holder of Debt Securities by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Debt
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Securities in accordance with Section 312 of the Trust Indenture Act, or any
successor section of such Act, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 312(b)
of the Trustee Indenture Act, or any successor section of such Act.
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY.
Annually, not later than sixty (60) days after May 15 in each
year, commencing May 15, 2000, the Trustee shall transmit to the Holders, the
Commission and each securities exchange upon which any Debt Securities are
listed, a report, dated as of the next preceding May 15th, 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, the Commission and each securities
exchange upon which any Debt Securities are listed, 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. Without limitation
to the generality of the foregoing, the Company, pursuant to Section 314(a) of
the Trust Indenture Act, shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) that the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act, or, if the Company is not required
to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act, in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(3) transmit, within 30 days after the filing thereof with the
Trustee, to the Holders, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, such summaries of any
information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) above of this Section 1002 as may be
required by rules and regulations prescribed from time to time by the
Commission.
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The Company shall notify the Trustee of the listing of any
Debt Securities on any securities exchange. Delivery of such reports,
information and documents by the Company to the Trustee is for informational
purposes only, and the Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officer's Certificates).
ARTICLE XI
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 Debt
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
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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 Debt
Securities Outstanding hereunder.
ARTICLE XII
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 Debt 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 Debt 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 Debt 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 Debt 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 Debt Security of such
series or Tranche remains Outstanding; or
(e) to provide collateral security for the Debt Securities; or
(f) to establish the form or terms of Debt 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
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(h) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee with respect to the Debt
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 Debt
Securities; or 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
(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
Debt Securities, or any Tranche thereof, shall be payable, (2) all or
any series of Debt Securities, or any Tranche thereof, may be
surrendered for registration of transfer, (3) all or any series of
Debt 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 Debt Securities, or any Tranche thereof, and
this Indenture may be served; or
(k) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein; provided that no such changes or additions shall
adversely affect the interests of the Holders of Debt 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 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.
The Trustee is hereby authorized to join with the Company in the
execution of any supplemental indenture pursuant to this Section 1201 to effect
any such amendment described above, to make any further agreements and
stipulations which may be contained therein and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall not be
obligated to, but may in its discretion, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
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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 Debt 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 Debt Securities of more than one series
Outstanding hereunder and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Debt 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 Debt Securities of all series so
directly affected, considered as one class, shall be required; and provided,
further, that if the Debt 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 Debt 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 Debt 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 any Debt 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 Debt 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 Debt 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 Debt 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 Debt
Security, or
(b) reduce the percentage in principal amount of the
Outstanding Debt 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 Debt 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 Debt Securities of any series, or
any Tranche thereof (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 Debt
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
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changes in this Section in accordance with the requirements of
Sections 911(b), 914 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 Debt Securities, or of one or more
Tranches thereof, or which modifies the rights of the Holders of Debt 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
Debt Securities of any other series or Tranche.
Upon the request of the Company, accompanied by a copy of the
Board Resolution authorizing the execution of any such supplemental indenture,
compliance by the Company with Section 1203 hereof, and the filing with the
Trustee of evidence of the consent of the Holders of the Debt Securities
required hereunder with respect to the proposed supplemental indenture, the
Trustee shall join with the Company in the execution of such supplemental
indenture unless the supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture, or otherwise, in which case the
Trustee may in its discretion but shall not be obligated to enter into such
supplemental indenture.
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 Officer's Certificate and an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture.
ECTION 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 Debt 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.
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SECTION 1206. REFERENCE IN DEBT SECURITIES TO SUPPLEMENTAL INDENTURES.
Debt 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 Debt 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 Debt Securities of such series or Tranche.
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
If the terms of any particular series of Debt 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 XIII
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Debt 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 Debt
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
Debt 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
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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 Debt 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 Debt 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 Debt 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 Debt 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 Debt 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 Debt
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 Debt 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 Debt 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 Debt 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 Debt 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
Debt 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 Debt Securities of such series
and Tranches, considered as one class, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Debt Securities
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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 Debt
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 Debt 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 Debt 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 Debt 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 Debt Securities of such series and Tranches,
considered as one class.
Any resolution passed or decision taken at any meeting of
Holders of Debt Securities duly held in accordance with this Section shall be
binding on all the Holders of Debt 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 Debt 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 Debt Securities with respect to which it was given
unless and until specifically revoked by the Holder or future Holder
of such Debt 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 Debt Securities in regard to
proof of the holding of such Debt 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
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appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Debt 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 Debt 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 Debt 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 Debt Securities held or
represented by him; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Debt 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 Debt 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 Debt 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 Debt 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
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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 XIV
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 Debt 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 Debt 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 Debt 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 Debt Securities.
--------------------
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.
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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.
CAROLINA POWER & LIGHT COMPANY
By: /s/ Mark F. Mulhern
---------------------------------
Mark F. Mulhern
Vice President and Treasurer
[SEAL]
ATTEST:
/s/ William D. Johnson
- ---------------------------------
William D. Johnson
Senior Vice President and
Corporate Secretary
(Trustee's Signature Page Follows)
<PAGE>
THE CHASE MANHATTAN BANK, Trustee
By: /s/ Patti Maner
-------------------------------
Patti Maner
Authorized Representative
[SEAL]
ATTEST:
/s/ Roy Wessinger
- ---------------------------------
Roy Wessinger
Authorized Representative
CAROLINA POWER & LIGHT COMPANY
OFFICER'S CERTIFICATE
Mark F. Mulhern, the Vice President and Treasurer of Carolina Power &
Light Company (the "Company"), pursuant to the authority granted in the Board
Resolutions dated December 9, 1998, July 14, 1999, and October 25, 1999 and the
Indenture as defined herein, does hereby certify to The Chase Manhattan Bank
(the "Trustee"), as Trustee under the Indenture (for Debt Securities) of the
Company dated as of October 28, 1999 (as amended by this Officer's Certificate,
the "Indenture") that he has authorized the issue and sale of Extendible Notes
due October 28, 2009 (the "Notes") by the Company, and, in connection with such
issuance, has determined, approved or appointed, as the case may be, the
following:
1) The notes of the first series issued under the Indenture shall be
designated "Extendible Notes due October 28, 2009." The Form of Note is
attached hereto as Exhibit A. All capitalized terms used in this
certificate which are not defined herein shall have the meanings (if
any) set forth in Exhibit A hereto; all capitalized terms used in this
certificate which are not defined herein or in Exhibit A hereto shall
have the meanings set forth in the Indenture.
2) The Notes shall initially be limited in aggregate principal amount to
$500,000,000 at any time Outstanding, except as may otherwise be
permitted under the Indenture and the Notes.
3) If not redeemed earlier pursuant to their terms, the Notes shall mature
and the principal thereof shall be due and payable together with all
accrued and unpaid interest thereon on October 28, 2009.
4) The Notes shall be issued as Global Securities registered in the name
of a nominee of The Depository Trust Company. The Notes shall be issued
in denominations of $1,000 and integral multiples thereof.
5) The Notes shall bear interest, and the interest rate shall reset as
provided in Exhibit A. The Notes will bear interest (a) during the
Initial Spread Period, from and including October 28, 1999 to but
excluding July 28, 2000, at a rate that will reset monthly equal to the
one month LIBOR plus a spread of .33% and (b) during each Subsequent
Spread Period either at a fixed or floating interest rate as determined
by the Company with the recommendation of the Remarketing Agent.
6) Pursuant to the Calculation Agency Agreement and the Remarketing
Agreement, respectively, the Rate Agent (i) in Floating Rate Mode will
be The Chase Manhattan Bank and (ii) in Fixed Rate Mode will be Merrill
Lynch, Pierce, Fenner & Smith Incorporated.
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7) The Notes may be redeemed on or after July 28, 2000, as provided in
Exhibit A. To the extent the provisions of Exhibit A are inconsistent
with Article IV of the Indenture, the provisions of Exhibit A shall
control.
8) On and after July 28, 2000, if the Company so elects with respect to a
Subsequent Spread Period, the Notes will be subject to repayment at the
option of holders thereof during such Subsequent Spread Period, as
provided in Exhibit A. To the extent the provisions of Exhibit A are
inconsistent with Article IV of the Indenture, the provisions of
Exhibit A shall control.
9) On the Remarketing Reset Date which commences each Subsequent Spread
Period, each Note will automatically be tendered, or deemed tendered to
the Remarketing Agent, for remarketing at 100% of the principal amount
thereof unless the beneficial holder affirmatively elects not to tender
such Note by following the procedures set forth in the prospectus
supplement.
10) The Notes shall not be subject to a sinking fund.
11) The purchase price of the Notes from the Company shall be 99.875% of
the principal amount thereof.
12) Principal and interest will be payable at the corporate trust office of
The Chase Manhattan Bank, presently located at 450 West 33rd Street,
New York, New York, 10001 or such other place as may be designated by
the Trustee from time to time.
13) The Notes will be subject to certain events of default and certain
covenants as set forth in the Indenture and the Notes.
14) The Trustee shall initially be The Chase Manhattan Bank, the principal
corporate trust office of which presently is located at 450 West 33rd
Street, New York, New York, 10001.
15) The Notes shall be senior unsecured obligations of the Company.
16) Any further terms of the Notes shall be as provided for in Exhibit A
hereto and in the Indenture.
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<PAGE>
IN WITNESS WHEREOF, the undersigned Vice President and Treasurer of the
Company has executed this Certificate as of the 28th day of October, 1999.
/s/ Mark F. Mulhern
------------------------------
Mark F. Mulhern
Vice President and Treasurer
3
<PAGE>
EXHIBIT A--FORM OF NOTE
[depository legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (55 WATER STREET, NEW YORK, NEW
YORK) ("DTC"), TO CAROLINA POWER & LIGHT COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
[FORM OF FACE OF EXTENDIBLE NOTE]
REGISTERED REGISTERED
CAROLINA POWER & LIGHT COMPANY
EXTENDIBLE NOTE DUE OCTOBER 28, 2009
NO. _____ PRINCIPAL AMOUNT:
$_______________
CUSIP NO. ___________
CAROLINA POWER & LIGHT COMPANY, a corporation duly organized and existing under
the laws of the State of North Carolina (herein referred to as the "Company"),
for value received, hereby promises to pay to CEDE & CO., or registered assigns,
the principal amount of ________________ Dollars ($____________), on October 28,
2009 (the "Stated Maturity") (unless and to the extent earlier redeemed or
repaid prior to such date) and to pay interest thereon from October 28, 1999 or
from the most recent Interest Payment Date (as defined below) to which interest
has been paid or duly provided for in arrears on the 28th day of each month
during the Initial Spread Period and any other date as shall be established by
the Company as an interest payment date in accordance with the provisions set
forth below (each, an "Interest Payment Date"), and at maturity or earlier
redemption, until the principal hereof is paid or made available for payment.
Interest payments for this Note shall include interest accrued to but excluding
each Interest Payment Date. The interest so payable, and punctually paid or duly
provided for, on Notes held in global (i.e., book-entry) form, on any Interest
Payment Date shall, as provided in
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the Indenture (as defined below), be paid to the Person in whose name this Note
(or one or more Predecessor Debt Securities) is registered at the close of
business on the Regular Record Date, which shall be the calendar day (whether or
not a Business Day) next preceding such Interest Payment Date. Interest on Notes
held in definitive form will be payable on each Interest Payment Date specified
for the Initial Spread Period and any Subsequent Spread Period, in each case to
the person in whose name such Note is registered at the close of business on the
15th calendar day (whether or not a Business Day) preceding such Interest
Payment Date.
Except as otherwise provided in the Indenture, any interest not
punctually paid or duly provided for on any Interest Payment Date ("Defaulted
Interest") shall forthwith cease to be payable to the Holder on the Regular
Record Date with respect to such Interest Payment Date by virtue of having been
such Holder and may either (1) be paid to the Person in whose name this Note (or
one or more Predecessor Debt 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 (as defined below), notice of which shall be given to Holders of
Notes not less than 10 days prior to such Special Record Date, or (2) be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the
Indenture. Payment of the principal of (and premium, if any) and interest, if
any, on this Note shall be made at the Corporate Trust Office of the Trustee or
such other offices or agencies of the Trustee maintained for that purpose from
time to time, or at any other office or agency maintained by the Company for
such purpose, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
PROVIDED, HOWEVER, that at the option of the Company, payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Debt Security Register.
Reference is hereby made to the further provisions of this Note set
forth below, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee or its duly appointed co-authenticating agent by manual signature,
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this Instrument to be signed
by the signature or facsimile signature of its Chairman of the Board, its
President, a Vice President, its Treasurer or an Assistant Treasurer and
attested by its Secretary or an Assistant Secretary by his/her signature or a
facsimile thereof, and its corporate seal or a facsimile of its corporate seal
to be affixed hereunto or imprinted hereon.
(SEAL) CAROLINA POWER & LIGHT COMPANY
By ____________________________________
Name:
Title:
Attest:
- -------------------------------
Name:
Title:
Dated: October 28, 1999
6
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein referred to in
the within-mentioned Indenture.
Dated: October 28, 1999
THE CHASE MANHATTAN BANK, as Trustee
By: _________________________________
Name:
Title: Authorized Representative
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<PAGE>
[FORM OF REVERSE OF NOTE]
This Note is one of a duly authorized issue of securities of the
Company (herein called the "Notes") issued and to be issued in one or more
series under an Indenture (For Debt Securities), dated October 28, 1999 (herein
called the "Indenture," which term shall have the meaning assigned to it in such
instrument) between the Company and The Chase Manhattan Bank, as trustee (herein
called the "Trustee," which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered. Capitalized
terms used but not defined in this Note have the meanings given to them in the
Indenture. This Note is a "Debt Security" as that term is defined in the
Indenture.
The Notes are senior unsecured obligations of the Company and
rank equally with all of the Company's other senior unsecured indebtedness from
time to time outstanding. Debt Securities may be issued under the Indenture from
time to time as a single series or in two or more separate series up to the
aggregate principal amount from time to time authorized for each series. The
Company may, from time to time, without the consent of the holder of this Note,
provide for the issuance of Notes or other Debt Securities under the Indenture
in addition to this Note.
The Notes will mature, unless previously redeemed, on October 28, 2009
(the "Stated Maturity"). This Note is one of the series designated on the face
hereof, initially limited in the aggregate principal amount of $500,000,000.
This series of Notes may be "reopened" and additional Notes issued under the
Indenture. The Notes will bear interest as described below for the Initial
Spread Period and any Subsequent Spread Period (each as defined below). Interest
on the Notes held in book-entry form will be payable on each Interest Payment
Date (as defined below) specified for the Initial Spread Period and any
Subsequent Spread Period, in each case to the person in whose name the Notes are
registered at the close of business on the calendar day (whether or not a
Business Day) next preceding such Interest Payment Date. Interest payable on any
Interest Payment Date or Stated Maturity or date of earlier redemption or
repayment will be the amount of interest accrued from and including the date of
original issuance or from and including the most recent Interest Payment Date on
which interest has been paid, to but excluding such Interest Payment Date or
Stated Maturity or date of earlier redemption or repayment, as the case may be.
Principal of and interest on the Notes will be payable, and the transfer of the
Notes will be registrable, at the Corporate Trust Office of the Trustee, or such
other offices or agencies of the Trustee from time to time designated by the
Trustee for such purpose, or at any other office or agency designated by the
Company for such purpose.
The Remarketing Agent (or its successor(s)) for the Notes of this
series shall be designated by the Company. The Remarketing Agent shall remarket
the Notes on terms and conditions as set forth herein and in the Remarketing
Agreement (as defined below).
The Notes will not be subject to a sinking fund.
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If the Stated Maturity for the Notes falls on a day that is not a
Business Day, the related payment of principal and interest will be made on the
next succeeding Business Day as if it were made on the date such payment was
due, and no interest will accrue on the amounts so payable for the period from
and after such date to the next succeeding Business Day.
The term "Business Day" means any day other than a Saturday or Sunday
or a day on which banking institutions in The City of New York are required or
authorized to close and, in the case of Notes in the Floating Rate Mode (as
defined below), that is also a London Business Day. The term "London Business
Day" means any day on which dealings in deposits in U.S. dollars are transacted
in the London interbank market.
All percentages resulting from any calculation of any interest rate for
the Notes will be rounded, if necessary, to the nearest one hundred thousandth
of a percentage point, with five one millionths of a percentage point rounded
upward and all dollar amounts will be rounded to the nearest cent, with one-half
cent being rounded upward.
INITIAL SPREAD PERIOD
The "Initial Spread Period" will be the period from and including
October 28, 1999, the date of original issuance of the Notes, to but excluding
the initial "Remarketing Reset Date" for the Notes. The initial Remarketing
Reset Date will be July 28, 2000.
During the Initial Spread Period for the Notes, interest on the Notes
will be payable in arrears monthly, on the 28th day of each month, commencing
November 28, 1999 (each such date an "Interest Payment Date" in respect of the
Initial Spread Period), except as described below. The interest rate on the
Notes will be reset monthly on the 28th day of each month, commencing November
28, 1999 (the "Interest Reset Date" in respect of the Initial Spread Period),
and the Notes will bear interest during the Initial Spread Period at a per annum
rate (computed on the basis of the actual number of days elapsed over a 360-day
year) equal to LIBOR (as defined below) for the applicable Interest Reset Period
(as defined below), plus the Initial Spread (as defined below). The "Initial
Interest Reset Period" will be the period from and including the date of
original issuance of the Notes, to but excluding November 28, 1999. Thereafter,
each "Interest Reset Period" during the Initial Spread Period will be the
monthly period from and including the most recent Interest Reset Date, to but
excluding the next succeeding Interest Reset Date or Remarketing Reset Date, as
the case may be.
The spread applicable to the Notes during the Initial Spread Period
will be .33% (the "Initial Spread"), and the interest rate mode used for the
Initial Spread Period will be the "Floating Rate Mode." Thus, the interest rate
per annum for the Notes during the Initial Interest Reset Period will be equal
to LIBOR, determined as of October 26, 1999, plus the Initial Spread. The
interest rate per annum for each succeeding Interest Reset Period during the
Initial Spread Period will equal LIBOR for such Interest Reset Period plus the
Initial Spread, calculated as described below under "Subsequent Spread Periods
- -- Floating Rate Mode."
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If, during the Initial Spread Period, any Interest Payment Date,
redemption date, Interest Reset Date or Remarketing Reset Date would otherwise
be a day that is not a Business Day, such Interest Payment Date, redemption
date, Interest Reset Date or Remarketing Reset Date will be postponed to the
next succeeding day that is a Business Day, except that if such Business Day is
in the next succeeding calendar month, such Interest Payment Date, redemption
date, Interest Reset Date or Remarketing Reset Date shall be the next preceding
Business Day.
SUBSEQUENT SPREAD PERIODS
The Spread (as defined below) will be determined in the manner
described below for each period from and including each Remarketing Reset Date,
to but excluding each next succeeding Remarketing Reset Date or, as the case may
be, Stated Maturity (a "Subsequent Spread Period"). A Subsequent Spread Period
will be one or more periods of at least three months (or any integral multiple
of three months), but not more than the period remaining to the Stated Maturity
of the Notes as designated by the Company, and commencing on the 28th day of
January, April, July or October (or as otherwise specified by the Company and
the Remarketing Agent on the applicable Duration/Mode Determination Date (as
defined below) in connection with the establishment of each Subsequent Spread
Period), as applicable (each such date, a "Remarketing Reset Date"); PROVIDED,
HOWEVER, that no Subsequent Spread Period may end on or after the Stated
Maturity.
Interest on the Notes during each Subsequent Spread Period shall accrue
and be payable, as applicable, either:
o at a floating interest rate (the Notes being in the "Floating Rate
Mode" and the interest rate being a "Floating Rate"), or
o at a fixed interest rate (the Notes being in the "Fixed Rate Mode"
and the interest rate being a "Fixed Rate"),
in each case as determined by the Company and the Remarketing Agent in
accordance with the Remarketing Agreement and the applicable Remarketing Agency
Agreement (each as defined below). The Spread that will be applicable to the
Notes during each Subsequent Spread Period will be the percentage (a)
recommended by the Remarketing Agent so as to result in a rate that, in the
reasonable opinion of the Remarketing Agent, will enable tendered Notes to be
remarketed by the Remarketing Agent at 100% of the principal amount thereof, as
described under "Tender of Notes; Remarketing Agency Agreement" below, and (b)
agreed to by the Company.
Unless notice of redemption of the Notes as a whole has been given, the
following terms will be established by 3:00 p.m., New York City time, on the
eighth Business Day prior to the Remarketing Reset Date which commences such
Subsequent Spread Period (the "Duration/Mode Determination Date"):
o duration,
o redemption dates,
o redemption type (I.E., par, premium or make-whole),
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o redemption prices (if applicable),
o repayment dates,
o Remarketing Reset Date,
o Interest Reset Dates,
o Interest Payment Dates,
o interest rate mode (I.E., Fixed Rate Mode or Floating Rate Mode),
o optional repayment terms, if any, and
o any other relevant terms for each Subsequent Spread Period.
In addition, the Spread for each Subsequent Spread Period will be established by
3:00 p.m., New York City time, on the fourth Business Day prior to the
Remarketing Reset Date commencing such Subsequent Spread Period (the "Spread
Determination Date").
The Company will, not less than ten nor more than twenty calendar days
prior to any Duration/Mode Determination Date:
o inform The Depository Trust Company ("DTC") that the Notes are
subject to mandatory, automatic tender on the Remarketing Reset
Date (subject to the right to elect not to tender), and
o request that DTC notify its participants of such Duration/Mode
Determination Date and of the procedures that must be followed if
any beneficial owner of a Note wishes to retain such Note as
described under "Tender of Notes; Remarketing Agency Agreement"
below.
In the event that DTC or its nominee is no longer the holder of record of the
Notes, the Company will notify the holders of the Notes of such information
within such period of time. This will be the only notice given by the Company or
the Remarketing Agent with respect to such Duration/Mode Determination Date and
procedures for electing not to tender Notes.
If the Company and the Remarketing Agent cannot agree on the Spread for
any Subsequent Spread Period, then the Company is required unconditionally to
repurchase and retire all of the Notes on the Remarketing Reset Date at a price
equal to 100% of the principal amount of the Notes, together with accrued and
unpaid interest, if any, thereon to but excluding the Remarketing Reset Date.
FLOATING RATE MODE
If the Notes are to be reset to the Floating Rate Mode, as agreed to by
the Remarketing Agent and the Company on a Duration/Mode Determination Date,
then during the corresponding Subsequent Spread Period:
o the interest rate on the Notes will be reset monthly, quarterly or
semiannually (each, an "Interest Reset Period") and interest on
the Notes will be payable either monthly, quarterly or
semiannually on such dates (each such date, an "Interest Payment
Date"
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in respect of such Subsequent Spread Period), in each case
as specified by the Remarketing Agent and the Company on the
applicable Duration/Mode Determination Date, and
o the Notes will bear interest at a per annum rate (computed on the
basis of the actual number of days elapsed over a 360-day year)
equal to LIBOR for the applicable Interest Reset Period, plus the
applicable Spread, as determined on the relevant Spread
Determination Date.
Unless otherwise specified on the applicable Duration/Mode Determination Date
for Notes in the Floating Rate Mode, interest on such Notes will be payable, in
the case of Notes which reset:
o monthly, on the 28th day of each month,
o quarterly, on the 28th day of each January, April, July and
October, or
o semiannually, on the 28th day of each April and October.
The first day of an Interest Reset Period is referred to in this Note as an
"Interest Reset Date" in respect of the Subsequent Spread Period and, unless
otherwise specified on the applicable Duration/Mode Determination Date, will be,
in the case of Notes which reset:
o monthly, on the 28th day of each month,
o quarterly, on the 28th day of each January, April, July and
October, or
o semiannually, on the 28th day of each April and October.
The interest rate in effect on each day will be:
o if such day is an Interest Reset Date, the interest rate
determined as of the Floating Rate Determination Date (as defined
below) immediately preceding such Interest Reset Date, or
o if such day is not an Interest Reset Date, the interest rate
determined as of the Floating Rate Determination Date immediately
preceding the most recent Interest Reset Date.
o If any Interest Payment Date (other than at Stated Maturity),
redemption date, repayment date, Interest Reset Date or
Remarketing Reset Date in the Floating Rate Mode would otherwise
be a day that is not a Business Day, such Interest Payment Date,
redemption date, repayment date, Interest Reset Date or
Remarketing Reset Date will be postponed to the next succeeding
day that is a Business Day, except that if such Business Day is in
the next succeeding calendar month, such Interest Payment Date,
redemption date, repayment date, Interest Reset Date or
Remarketing Reset Date shall be the next preceding Business Day.
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The interest rate applicable to each Interest Reset Period commencing
on the related Interest Reset Date will be the rate determined as of the
applicable Floating Rate Determination Date. The "Floating Rate Determination
Date" will be the second London Business Day immediately preceding the
applicable Interest Reset Date.
For the Initial Spread Period and if the Notes are reset to the
Floating Rate Mode for a Subsequent Spread Period, LIBOR will be determined by
the Rate Agent (as defined under "Tender of Notes; Remarketing Agency Agreement"
below) as of the applicable Floating Rate Determination Date in accordance with
the following provisions:
(i) LIBOR will be determined on the basis of the offered rates
for deposits in U.S. dollars of not less than U.S. $1,000,000 of the
applicable Index Maturity, commencing on the second London Business Day
immediately following such Floating Rate Determination Date, which
appears on Telerate Page 3750 (as defined below) as of approximately
11:00 a.m., London time, on such Floating Rate Determination Date.
"Telerate Page 3750" means the display designated on page "3750" on
Bridge Telerate, Inc. (or such other page as may replace the 3750 page
on that service, any successor service or such other service or
services as may be nominated by the British Bankers' Association for
the purpose of displaying London interbank offered rates for U.S.
dollar deposits). If no rate appears on Telerate Page 3750, LIBOR for
such Floating Rate Determination Date will be determined in accordance
with the provisions of paragraph (ii) below.
(ii) With respect to a Floating Rate Determination Date on
which no rate appears on Telerate Page 3750 as of approximately 11:00
a.m., London time, on such Floating Rate Determination Date, the Rate
Agent shall request the principal London offices of each of four major
reference banks in the London interbank market selected by the Rate
Agent to provide the Rate Agent with a quotation of the rate at which
deposits of the applicable Index Maturity in U.S. dollars, commencing
on the second London Business Day immediately following such Floating
Rate Determination Date, are offered by it to prime banks in the London
interbank market as of approximately 11:00 a.m., London time, on such
Floating Rate Determination Date in a principal amount equal to an
amount of not less than U.S. $1,000,000 that is representative for a
single transaction in such market at such time. If at least two such
quotations are provided, LIBOR for such Floating Rate Determination
Date will be the arithmetic mean of such quotations as calculated by
the Rate Agent. If fewer than two quotations are provided, LIBOR for
such Floating Rate Determination Date will be the arithmetic mean of
the rates quoted as of approximately 11:00 a.m., New York City time, on
such Floating Rate Determination Date by three major banks in The City
of New York selected by the Rate Agent (after consultation with the
Company) for loans in U.S. dollars to leading European banks of the
applicable Index Maturity commencing on the second London Business Day
immediately following such Floating Rate Determination Date and in a
principal amount equal to an amount of not less than U.S. $1,000,000
that is representative for a single transaction in such market at such
time; provided, however, that if the banks selected as aforesaid by the
Rate Agent are not quoting as mentioned in this sentence, LIBOR for
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<PAGE>
such Floating Rate Determination Date will be LIBOR determined with
respect to the immediately preceding Floating Rate Determination Date,
or in the case of the first Floating Rate Determination Date, LIBOR for
the Initial Interest Reset Period.
The Index Maturity applicable to Notes in the Floating Rate Mode will
be, in the case of Notes resetting:
o monthly, one month,
o quarterly, three months, or
o semiannually, six months.
FIXED RATE MODE
If the Notes are to be reset to the Fixed Rate Mode, as agreed to by
the Company and the Remarketing Agent on a Duration/Mode Determination Date,
then the applicable Fixed Rate for the corresponding Subsequent Spread Period
will be determined by 4:00 p.m., New York City time, on the third Business Day
prior to the Remarketing Reset Date for such Subsequent Spread Period (the
"Fixed Rate Determination Date"), in accordance with the following provisions.
The Fixed Rate will be determined by adding:
o the applicable Spread (as determined by the Remarketing Agent and
agreed to by the Company on the immediately preceding Spread
Determination Date) and
o the yield to maturity determined by 4:00 p.m., New York City time,
on the Fixed Rate Determination Date (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the applicable United
States Treasury security, selected by the Rate Agent after
consultation with the Remarketing Agent, as having a maturity
comparable to the duration selected for the following Subsequent
Spread Period, which would be used in accordance with customary
financial practice in pricing new issues of corporate debt
securities of comparable maturity to the duration selected for the
following Subsequent Spread Period.
Interest in the Fixed Rate Mode will be computed on the basis of a
360-day year of twelve 30-day months. Such interest will be payable semiannually
in arrears on the Interest Payment Dates (i.e., April 28 and October 28, unless
otherwise specified by the Company and the Remarketing Agent on the applicable
Duration/Mode Determination Date) at the applicable Fixed Rate, as determined on
the Fixed Rate Determination Date, beginning on the applicable Remarketing Reset
Date and continuing for the duration of the relevant Subsequent Spread Period.
If any Interest Payment Date, redemption date or repayment date in the
Fixed Rate Mode would otherwise be a day that is not a Business Day (in either
case, other than any Interest Payment Date, redemption date or repayment date
that falls on a Remarketing Reset Date, in
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<PAGE>
which case each such date will be postponed to the next succeeding day that is a
Business Day), the related payment of principal and interest will be made on the
next succeeding Business Day as if it were made on the date such payment was
due, and no interest will accrue on the amounts so payable for the period from
and after such date to the next succeeding Business Day.
TENDER OF NOTES; REMARKETING AGENCY AGREEMENT
The Company has entered into a Remarketing Agreement dated October 28,
1999 with Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch")
with respect to remarketing of the Notes (the "Remarketing Agreement") by the
Remarketing Agent. If the Company and the Remarketing Agent agree on the Spread
on the Spread Determination Date with respect to any Subsequent Spread Period,
the Company will enter into a Remarketing Agency Agreement (the "Remarketing
Agency Agreement") with the Remarketing Agent on such Spread Determination Date.
On the Remarketing Reset Date which commences such Subsequent Spread Period,
each Note will be automatically tendered, or deemed tendered, to the Remarketing
Agent for remarketing by the Remarketing Agent on the Remarketing Reset Date at
100% of the principal amount thereof (the "Purchase Price") unless the
beneficial owner of such Note, at such owner's option, upon giving notice as
provided below (the "Hold Notice"), elects not to tender such Note. If the Notes
are held in book-entry form, subject to the second succeeding paragraph, the
Purchase Price will be paid by the Remarketing Agent in accordance with the
standard procedures of DTC, which currently provide for payments in same-day
funds. Interest accrued on such Notes with respect to the preceding interest
period will be paid in the manner described under "Form, Denomination and
Registration" below.
The Hold Notice must be received by the Remarketing Agent (through DTC
if held in book-entry form) during the period commencing at 3:00 p.m., New York
City time, on the Duration/Mode Determination Date and ending at 12:00 noon, New
York City time, on the third Business Day prior to the Remarketing Reset Date
for such Subsequent Spread Period (the "Notice Date"); provided, however, that
if the Company is unable to agree with the Remarketing Agent on the Spread for
such Subsequent Spread Period, any Hold Notices received will be null and void.
Except as otherwise provided below, a Hold Notice shall be irrevocable. If a
Hold Notice is not received for any reason by the Remarketing Agent with respect
to any Note by 12:00 noon, New York City time, on the Notice Date, the
beneficial owner of such Note shall be deemed to have elected to tender such
Note for purchase by the Remarketing Agent. All of the Notes, whether or not
tendered, shall bear interest upon the same terms.
If the Remarketing Agent is unable to remarket some or all of the
tendered Notes and, in its sole discretion, elects not to purchase such tendered
Notes, the Company is obligated unconditionally to purchase and retire on the
Remarketing Reset Date the remaining unsold tendered Notes at a price equal to
100% of the principal amount thereof, plus accrued and unpaid interest, if any,
thereon to the applicable Remarketing Reset Date.
No beneficial owner of any Note shall have any rights or claims against
the Remarketing Agent as a result of the Remarketing Agent not purchasing such
Notes.
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<PAGE>
Notwithstanding anything to the contrary contained herein, the
Remarketing Agent shall have the option, but not the obligation, to purchase any
Notes tendered to it that it is not able to remarket. If the Remarketing Agent
is unable to remarket the entire principal amount of all Notes tendered on any
Remarketing Reset Date and, in its sole discretion, the Remarketing Agent elects
not to purchase such tendered Notes, it will promptly notify the Company and the
Trustee. The Company or its affiliates may offer to purchase Notes in a
remarketing, provided that the Spread and related interest rate established with
respect to the Notes in connection with such remarketing are not different than
they would otherwise be if the Company or its affiliates had not purchased such
Notes.
The term "Remarketing Agent" means the nationally recognized
broker-dealer selected by the Company to act as Remarketing Agent. Pursuant to
the Remarketing Agreement, Merrill Lynch has agreed to act as Remarketing Agent.
The term "Rate Agent" means the entity selected by the Company as its agent to
determine:
o LIBOR and the interest rate on the Notes for any Interest Reset
Period, and/or
o the yield to maturity on the applicable United States Treasury
security that is used in connection with the determination of the
applicable Fixed Rate, and the ensuing applicable Fixed Rate.
Pursuant to the Remarketing Agreement, Merrill Lynch has agreed to act as the
initial Rate Agent in respect of any Notes in the Fixed Rate Mode, and pursuant
to a calculation agency agreement dated October 28, 1999, by and between the
Company and The Chase Manhattan Bank (the "Calculation Agency Agreement"), The
Chase Manhattan Bank has agreed to act as the initial Rate Agent in respect of
any Notes in the Floating Rate Mode. In the Company's sole discretion, it may
change the Remarketing Agent and the Rate Agent for any Subsequent Spread Period
at any time on or prior to 3:00 p.m., New York City time, on the Duration/Mode
Determination Date relating thereto.
REDEMPTION OF THE NOTES
The Notes may not be redeemed prior to the initial Remarketing Reset
Date. On each Remarketing Reset Date (including the initial Remarketing Reset
Date) and on those Interest Payment Dates or other dates specified as redemption
dates by the Company on the Duration/Mode Determination Date in connection with
any Subsequent Spread Period, the Notes may be redeemed, at the Company's
option, in whole or in part, upon notice thereof given at any time during the 30
calendar day period ending on the eighth Business Day prior to the redemption
date (or fifteen Business Days prior to the redemption date in the case of a
partial redemption), in accordance with the redemption type selected on the
Duration/Mode Determination Date. The Notes are also subject to redemption in
whole or in part as provided above under "Subsequent Spread Periods" and "
Tender of Notes; Remarketing Agency Agreement" below. If less than all of the
outstanding Notes are to be redeemed, the Notes to be redeemed shall be selected
by such method as the Company shall deem fair and appropriate. If DTC or its
nominee is the record holder of the Notes, however, the Company will give notice
to
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<PAGE>
DTC, and DTC will determine the principal amount to be redeemed from the
account of each direct participant in accordance with its rules and procedures.
A direct or indirect participant may determine to redeem from some beneficial
owners (which may include a participant holding Notes for its own account)
without redeeming from the accounts of other beneficial owners.
The redemption type to be chosen by the Company and the Remarketing
Agent on the Duration/Mode Determination Date with respect to any Subsequent
Spread Period may be one of the following:
o "Par Redemption," meaning redemption at a redemption price equal
to 100% of the principal amount thereof, plus unpaid interest
thereon, if any, accrued to the redemption date,
o "Premium Redemption," meaning redemption at a redemption price or
prices greater than 100% of the principal amount thereof, plus
unpaid interest thereon, if any, accrued to the redemption date,
as determined on the Duration/Mode Determination Date, or
o "Make-Whole Redemption," meaning redemption at a redemption price
equal to the Make-Whole-Amount with respect to such Notes.
In connection with any optional redemption of any Note, "Make-Whole Amount"
means an amount equal to the greater of:
o 100% of its principal amount plus accrued interest, if any,
thereon to the date of redemption, or
o the sum of the present values of the remaining scheduled payments
of principal and interest thereon discounted to the date of
redemption on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the applicable Treasury
Yield plus the Reinvestment Spread.
Unless otherwise specified by the Remarketing Agent and the Company on any
Duration/Mode Determination Date, the redemption type will be Par Redemption.
Furthermore, the redemption in part of any Notes must be in increments of $1,000
or integral multiples thereof.
"Treasury Yield" means, with respect to any redemption date applicable
to any of the Notes, the rate per annum equal to the semiannual equivalent yield
to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the applicable Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means, with respect to the Notes subject to
redemption, the United States Treasury security selected by the Remarketing
Agent as having a maturity comparable to the remaining term of the Notes that
would be utilized, at the time of selection and
17
<PAGE>
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of the
Notes.
"Comparable Treasury Price" means, with respect to any redemption date
applicable to the Notes subject to redemption:
o the average of the applicable Reference Treasury Dealer Quotations
for such redemption date, after excluding the highest and lowest
of such applicable Reference Treasury Dealer Quotations, or
o if the Trustee obtains fewer than four such Reference Treasury
Dealer Quotations, the average of all such Quotations, or
o if only one Reference Treasury Dealer Quotation is received, such
Quotation.
"Reference Treasury Dealer" means, with respect to the Notes subject to
redemption, at least four primary U.S. Government securities dealers in New York
City as selected by the Company, which may include the Remarketing Agent or an
affiliate thereof.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date for the Notes subject to
redemption, the average, as determined by the Trustee, of the bid and asked
prices for the Comparable Treasury Issue for the Notes (expressed in each case
as a percentage of its principal amount) quoted in writing to the Trustee by
such Reference Treasury Dealer at 5:00 p.m. on the third business day preceding
such redemption date.
"Reinvestment Spread" means, with respect to the Notes subject to
redemption, a number, expressed as a number of basis points or as a percentage,
selected by the Company and agreed to by the Remarketing Agent on the
Duration/Mode Determination Date.
REPAYMENT AT THE OPTION OF THE HOLDERS
The Notes will not be subject to repayment at the option of the holders
thereof prior to the initial Remarketing Reset Date. Thereafter, if the Company
elects on the Duration/Mode Determination Date preceding a Subsequent Spread
Period, the Notes will be subject to repayment at the option of the holders
thereof during such Subsequent Spread Period, on such date(s) as the Company may
select, in whole or in part in increments of $1,000 or integral multiples
thereof, at a repayment price equal to 100% of the unpaid principal amount to be
repaid, together with unpaid interest accrued thereon to but excluding the date
of repayment. So long as DTC or its nominee is the record holder of the Notes,
beneficial owners that desire to have all or any portion of their Notes repaid
must instruct their broker or other designated direct or indirect participant to
direct DTC or its nominee to exercise the repayment option on their behalf by
forwarding the instructions to the Trustee, not more than 60 nor less than 30
calendar days prior to the date scheduled for repayment or within such other
notice period as may be specified on the applicable Duration/Mode Determination
Date.
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All instruction given to participants from beneficial owners of global
notes relating to the option to elect repayment shall be irrevocable. In
addition, at the time such instructions are given, each such beneficial owner
shall cause the broker or direct or indirect participant through which it owns
its interest to transfer such beneficial owner's interest in the global note or
notes representing the related book entry Notes, on DTC's records, to the
Trustee.
FORM, DENOMINATION AND REGISTRATION
The Notes will be issued only in fully registered form, without
coupons, in minimum denominations of $1,000 and any integral multiple of $1,000
in excess thereof. The Notes will be deposited with, or on behalf of, DTC. The
Notes will be represented by one or more global notes registered in the name of
Cede & Co., as nominee of DTC. The interests of beneficial owners in the global
notes will be represented through financial institutions acting on their behalf
as direct or indirect participants in DTC.
Ownership of beneficial interests in a global note will be limited to
persons who have accounts with DTC ("direct participants") or persons such as
securities brokers and dealers, banks and trust companies that clear through or
maintain a custodial relationship with a direct participant, either directly or
indirectly ("indirect participants"). Ownership of beneficial interests in the
global notes will be shown on, and the transfer of these ownership interests
will be effected only through, records maintained by DTC or its nominee (with
respect to interests of direct participants) and the records of direct
participants (with respect to interests of persons other than direct
participants).
So long as DTC, or its nominee, is the registered owner or holder of a
global note, DTC or such nominee, as the case may be, will be considered the
sole owner or holder of the Notes represented by such global note for all
purposes under the Indenture and the Notes. In addition, no beneficial owner of
an interest in a global note will be able to transfer that interest except in
accordance with DTC's applicable procedures (in addition to those under the
Indenture referred to herein).
Payments on global notes will be made to DTC or its nominee, as the
registered owner thereof. Neither the Company, the Trustee nor any paying agent
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in the global
notes or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
The Indenture provides that if:
o the Depository notifies the Company that it is unwilling or unable
to continue as Depository,
o if the Depository ceases to be eligible under the Indenture and
a successor depository is not appointed by the Company within
90 days, or
19
<PAGE>
o an Event of Default with respect to the Notes shall have occurred
and be continuing, and the holders of a majority in aggregate
principal amount of the Notes determine to discontinue the system
of book-entry transfers through DTC (or a successor depository),
the global notes will be exchanged for Notes in definitive form of like tenor
and of an equal aggregate principal amount, in authorized denominations. Such
definitive Notes shall be registered in such name or names as the Depository
shall instruct the Trustee. Interest on Notes held in definitive form will be
payable on each Interest Payment Date specified for the Initial Spread Period
and any Subsequent Spread Period, in each case to the person in whose name such
Note is registered at the close of business on the 15th calendar day (whether or
not a Business Day) preceding such Interest Payment Date.
CERTAIN INDENTURE PROVISIONS
The Indenture permits, in certain circumstances therein specified, the
amendment thereof without the consent of the Holders of any of the Debt
Securities. The Indenture also permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations under the Indenture of the Company and the rights of Holders of the
Debt 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 specified
percentage in aggregate principal amount of the Debt Securities at the time
Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of a specified percentage in aggregate
principal amount of the Debt Securities of each series at the time Outstanding,
on behalf of the Holders of all the Debt 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 Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture, a Holder
of Debt Securities 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 Debt
Securities of this series, the Holders of not less than a specified percentage
in aggregate principal amount of the Debt Securities of all series at the time
Outstanding in respect of which an Event of Default shall have occurred and be
continuing shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have received from the
Holders of a majority in principal amount of Debt Securities of all series at
the time Outstanding in respect of which an Event of Default shall have occurred
and be continuing a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Note for the enforcement of any payment of
principal hereof or any premium
20
<PAGE>
or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Note, subject to the provisions for satisfaction and discharge in Article
Seven of the Indenture, shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
The Indenture permits the Company, by irrevocably depositing,
in amounts and maturities sufficient to pay and discharge at the Stated
Maturity or redemption date, as the case may be, the entire indebtedness on
all Outstanding Notes, cash or U.S. Government Obligations with the Trustee
in trust solely for the benefit of the Holders of all Outstanding Notes, to
defease the Indenture with respect to such Notes, and upon such deposit the
Company shall be deemed to have paid and discharged its entire indebtedness
on such Notes. Thereafter, Holders would be able to look only to such trust
fund for payment of principal and interest at the Stated Maturity or
redemption date, as the case may be.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of Notes is registrable in the
Debt Security Register, upon surrender of a Note for registration of transfer
at the Corporate Trust Office of the Trustee or at such other offices or
agencies of the Trustee from time to time designated for such purpose, or at
such other offices or agencies as the Company may designate, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory
to the Company and the Security Registrar duly executed by, the Holder hereof
or his attorney duly authorized in writing, and thereupon one or more new
Notes of like tenor, of authorized denominations and for the same aggregate
principal amount, shall be issued to the designated transferee or
transferees.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
All undefined terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
21
REMARKETING AGREEMENT
REMARKETING AGREEMENT, dated as of October 28, 1999 (this "Remarketing
Agreement" or this "Agreement"), by and between Carolina Power & Light Company
(the "Company") and Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill
Lynch").
WHEREAS, the Company proposed to issue $500,000,000 aggregate principal
amount of Extendible Notes due 2009 (the "Notes"), such Notes to be issued under
an Indenture (for Debt Securities) dated as of October 28, 1999, as further
amended or supplemented from time to time (the "Indenture"), by and between the
Company and The Chase Manhattan Bank, as trustee (the "Trustee"); and
WHEREAS, the Notes are being initially offered to the public through
Merrill Lynch through a prospectus dated January 7, 1999 (including any
documents incorporated by reference therein, the "Prospectus") and a prospectus
supplement dated October 25, 1999, the "Prospectus Supplement"); and
WHEREAS, the Company has requested that Merrill Lynch as Rate Agent and
as Remarketing Agent (as each term is defined in Section 2(a) hereof) in
connection with the Notes and as such to perform the services described herein;
and
WHEREAS, Merrill Lynch is willing to act as Rate Agent and as
Remarketing Agent in connection with the Notes and as such to perform such
duties on the terms and conditions expressly set forth herein.
NOW, THEREFORE, for and in consideration of the covenants herein made,
and subject to the conditions herein set forth, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the respective meanings assigned to them in the Notes, the
Prospectus and/or the Prospectus Supplement or, if not defined therein, in the
Indenture relating to the Notes.
2. Appointment and Obligations of Merrill Lynch. (a) The Company hereby
appoints Merrill Lynch, and Merrill Lynch hereby accepts such appointment, (i)
as the rate agent (the "Rate Agent") of the Company for the Notes for the
purpose of determining the yield to maturity on the applicable United States
Treasury security that is used in connection with the determination of the
applicable Fixed Rate, and the ensuing applicable Fixed Rate and (ii) as the
exclusive remarketing agent (the "Remarketing Agent") for the purpose of (x)
recommending the Spread for each Subsequent Period that, in the opinion of the
Remarketing Agent, will enable it to remarket, for delivery on the Remarketing
Reset Date, tendered Notes at 100% of the principal amount thereof, (y) if the
Company and the Remarketing Agent agree on the Spread referred to in
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(x) above, entering into a remarketing agency agreement (each, a "Remarketing
Agency Agreement") with the Company, substantially in the form attached hereto
as Exhibit A, pursuant to which the Remarketing Agent will attempt, on a
reasonable efforts basis, to remarket the Notes tendered by the beneficial
owners thereof (the "Beneficial Owners") at a price equal to 100% of the
aggregate principal amount so tendered (each such attempted and/or completed
remarketing being hereinafter referred to as a "Remarketing"), and (z)
performing such other duties as are assigned to the Remarketing Agent in the
Notes and/or the Indenture and/or the applicable Remarketing Agency Agreement,
in each case subject to the conditions set forth herein and therein. The
Remarketing Agent shall also have the option, but not the obligation, to
purchase any tendered Notes at a price equal to 100% of the principal amount
thereof.
The Rate Agency hereby agrees to determine the yield to maturity on the
applicable United States Treasury security that is used in connection with the
determination of the applicable Fixed Rate, and the ensuing applicable Fixed
Rate, in accordance with this Section 2(c). If the Notes are to be reset to the
Fixed Rate Mode, as agreed to by the Company and the Remarketing Agent on a
Duration/Mode Determination Date, then the applicable Fixed Rate for the
corresponding Subsequent Spread Period will be determined by 4:00 p.m., New York
City time, on the third Business Day prior to the Remarketing Reset Date for the
Subsequent Spread Period (the "Fixed Rate Determination Date"). The Fixed Rate
will be a per annum rate and will be determined by adding (i) the applicable
Spread (as determined by the Remarketing Agent and agreed to by the Company on
the preceding Spread Determination Date) to (ii) the yield to maturity
determined by 4:00 p.m., New York City time, on the Fixed Rate Determination
Date (expressed as a bond equivalent, on the basis of a year of 365 or 366 days,
as applicable and applied on a daily basis) of the applicable United States
Treasury security, selected by the Rate Agent after consultation with the
Remarketing Agent, as having a maturity comparable to the duration selected for
the following Subsequent Spread Period, which would be used in accordance with
customary financial practice in pricing new issues of corporate debt securities
of comparable maturity to the duration selected for the following Subsequent
Spread Period.
3. Fees and Expenses. The obligations of the Company to pay to the
Remarketing Agent on each Remarketing Reset Date the fees set forth in the
applicable Remarketing Agency Agreement shall survive the termination of this
Agreement and remain in full force and effect until all such payments shall have
been made in full. The Company will pay all expenses incurred in connection with
the transactions contemplated by this Agreement, including reasonable expenses
of the Remarketing Agent, in connection with the Remarketing Agency Agreement,
including: (a) the preparation, filing, printing and delivery of the
registration statement and the prospectus, if any, and any amendments or
supplements thereto and any Remarketing Memorandum (as defined in the
Remarketing Agency Agreement) in connection with the Remarketing of the Notes;
(b) the preparation and delivery of this Agreement, the Remarketing Agency
Agreement, the Calculation Agency Agreement, the Indenture and such other
documents as may be required in connection with the Remarketing of the Notes;
(c) the fees and disbursements of the Company's accountants, counsel and other
advisors or agents (including any calculation agent) and of the reasonable fees
and required disbursements of the Trustee; and (d) the reasonable fees charged
by nationally recognized statistical rating organizations for the rating of the
Notes. The Company will not pay any transfer or other taxes in connection with
the Remarketing of the Notes.
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4. Removal of the Rate Agent and Remarketing Agent. With respect to any
Subsequent Spread Period, the Company may, in its absolute discretion, remove
the Rate Agent and Remarketing Agent by giving notice to the Rate Agent and
Remarketing Agent prior to 12:00 Noon, New York City time, on the Duration/Mode
Determination Date applicable thereto, such removal to be effective upon the
Company's appointment of a successor Rate Agent and Remarketing Agent. In such
case, the Company will use its reasonable efforts to appoint a successor Rate
Agent and Remarketing Agent and enter into such a remarketing agreement with
such persons as soon as reasonably practicable.
5. Dealing in the Notes. Subject to its compliance with applicable laws
and regulations, Merrill Lynch, when acting as a Rate Agent and Remarketing
Agent or in its individual or any other capacity, may buy, sell, hold and deal
in any of the Notes. Merrill Lynch may exercise any vote or join in any action
which any beneficial owner of the Notes may be entitled to exercise or take
pursuant to the Indenture with like effect as if it did not act in any capacity
hereunder. Merrill Lynch, in its individual capacity, either as principal agent,
may also engage in or have an interest in any financial or other transaction
with the Company as freely as if it did not act in any capacity hereunder.
6. Current Prospectus. If either Merrill Lynch or the Company
determines, based upon advice of counsel, that applicable law, regulations or
interpretations of the Securities and Exchange Commission (the "Commission")
make it necessary or advisable to file a new registration statement with the
Commission and/or deliver a current prospectus and/or prospectus supplement in
connection with a Remarketing, the Company shall file such new registration
statement with the Commission, in a form reasonably acceptable to Merrill Lynch
and its counsel (unless such registration statement is in the form of a shelf
registration statement on Form S-3) and furnish such current prospectus, in a
form reasonably acceptable to Merrill Lynch and its counsel, to be used by the
Remarketing Agent in such Remarketing, as applicable. Any registration
statement, prospectus or prospectus supplement contemplated by this Section 6
and any Remarketing Memorandum contemplated by the Remarketing Agency Agreement
shall be deemed to include all documents incorporated by reference therein.
7. Representations and Warranties of the Company. (a) The Company
represents and warrants to Merrill Lynch as of the date hereof, and as of each
Remarketing Reset Date, as follows:
(i) The Company has made all filings with the Commission that
it is required to make under the Securities Exchange Act of 1934, as amended
(the "1934 Act"), and the rules and regulations thereunder (the "1934 Act
Regulations"), commencing with the Company's most recent Annual Report on Form
10-K (collectively, the "1934 Act Documents"). Each 1934 Act Document complies
in all material respects with the requirements of the 1934 Act and the 1934 Act
Regulations, and each 1934 Act Document did not, at the time of filing with the
Commission, and will not, as of each Remarketing Reset Date, as modified or
superseded by any subsequently filed 1934 Act Document on or prior to such
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Remarketing Reset Date, 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, in light of the circumstances under which they were made,
not misleading.
(ii) Any prospectus and any Remarketing Memorandum
relating to the Notes and any amendments and supplements thereto do 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 light of the circumstances
under which they were made, not misleading.
(iii) 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.
(iv) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will not result in a breach
of any of the terms or provisions of, or constitute a default under, the
Charter, the Company's by-laws, applicable law or any indenture, mortgage, deed
of trust or other agreement or instrument to which the Company is now a party or
to which the party will be a party at the Remarketing Reset Date, or any
judgment, order, writ or decree of any government or governmental authority or
agency or court having jurisdiction over the Company or any of its subsidiaries
or any of their assets, properties or operations.
(v) The Notes conform in all material respects to the
description contained in the prospectus or Remarketing Memorandum relating to
the Notes.
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of North
Carolina with corporate power and authority to own, lease and operate its
properties and to conduct its business as contemplated under this Remarketing
Agreement, the Remarketing Agency Agreement and the other agreements to which it
is a party, and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
would not have a material adverse effect on the business, property, financial
condition, earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(vii) Each of the Company's significant subsidiaries, if
any (as defined in Rule 1-02 of Regulation S-X promulgated under the 1933 Act)
(each, a "Significant Subsidiary") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the 1934 Act
Documents, and to enter into and perform its obligations under any agreements to
which it is a party, and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required
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whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a material
adverse effect on the business, property, financial condition, earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; and all of the issued and outstanding capital
stock of each Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company, directly
or through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity, except for security interests
granted in respect of indebtedness of the Company or any of its subsidiaries and
referred to in the 1934 Act Documents.
(viii) The Indenture (A) has been duly authorized, executed
and delivered by the Company and constitutes a valid and legally binding
obligation of the Company, enforceable against the Company in accordance with
its terms, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or similar laws affecting creditor's rights
generally and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity and except the
effect on enforceability of federal or state law limiting, delaying or
prohibiting the making of payments outside the United States); and (B) conforms
in all material respects to the description thereof in the prospectus or
Remarketing Memorandum relating to the Notes.
(ix) The Notes have been duly authorized by the Company and
constitute valid and legally binding obligations of the Company, entitled to the
benefits of the Indenture enforceable against the Company in accordance with
their terms, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transferor or similar laws affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity and except the
effect on enforceability of federal or state law limiting, delaying or
prohibiting the making of payments outside the United States). Each registered
holder of Notes is entitled to the benefits of the Indenture. The Notes rank and
will rank on a parity with all unsecured and unsubordinated indebtedness of the
Company that is outstanding on the date hereof and on each Remarketing Reset
Date as contemplated in this Remarketing Agreement or that may be incurred
thereafter.
(x) Neither the Company nor any of its subsidiaries is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended (the "1940 Act").
(xi) Except as described in or contemplated by the
prospectus or Remarketing Memorandum relating to the Notes, there are no pending
actions, suits or proceedings against or affecting the Company or any of its
subsidiaries or properties which are likely in the aggregate, to result in any
material adverse change in the business, property, financial condition ,
earnings, business affairs, or business prospects of the Company and its
subsidiaries considered as a whole or which are likely in the aggregate to
materially and adversely affect the consummation of this Remarketing Agreement,
the Calculation Agency Agreement, the Remarketing Agency Agreement, the
Indenture, the Notes or the transactions contemplated herein or therein.
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(xii) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by
the Company of its obligations hereunder in connection with the remarketing of
the Notes hereunder or the consummation of the transactions herein contemplated
or for the performance of the Indenture by the Company, except such as have been
already obtained.
(xiii) The accountants who certified the financial
statements, financial statement schedules and historical summaries of revenue
and certain operating expenses for the properties related thereto included or
incorporated by reference in the 1934 Act Documents are independent public
accounts as required by the 1933 Act, and the rules and regulations thereunder
(the "1933 Act Regulations").
(xiv) The historical financial statements included or
incorporated by reference in the 1934 Act Documents present fairly the financial
position of the Company and its consolidated subsidiaries as at the dates
indicated and the results of their operations for the periods specified; except
as may otherwise be stated in the 1934 Act Documents, said financial statements
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis; and the financial statement schedules and other
financial information and data included or incorporated by reference in the 1934
Act Documents present fairly the information required to be stated therein.
(xv) The historical summaries of revenue and certain
operating expenses included or incorporated by reference in the 1934 Act
Documents, if any, present fairly the revenue and those operating expenses
included in such summaries for the periods specified in conformity with
generally accepted accounting principles; the pro forma condensed consolidated
financial statements included or incorporated by reference in the 1934 Act
Documents, if any, present fairly the pro forma financial position of the
Company and its consolidated subsidiaries as of the dates indicated and the pro
forma results of their operations for the periods specified; and the pro forma
condensed consolidated financial statements, if any, have been prepared in
conformity with generally accepted accounting principles applied on a consistent
basis, the assumptions set forth in the notes thereto, such pro forma financial
statements have been prepared, and the pro forma adjustments set forth therein
have been applied, in accordance with the applicable accounting requirements of
the 1933 Act and the 1933 Act Regulations, and such pro forma adjustments have
been properly applied to the historical amounts in the compilation of such
statements.
(xvi) Since the respective dates as of which information is
given in the 1934 Act Documents, except as may otherwise be stated therein or
contemplated thereby, (A) there has been no material adverse change in the
business, property, financial condition, earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and (B) there have
been no transactions or acquisitions entered into by the Company or any of its
subsidiaries, other than those arising in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered as one
enterprise.
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(xvii) The Company has full corporate power and authority to
enter into this Remarketing Agreement and the Remarketing Agency Agreement, and
this Remarketing Agreement has been duly authorized, executed and delivered by
the Company.
(b) Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Remarketing Agent in connection with any
Remarketing of the Notes shall be deemed a representation and warranty by the
Company to the Remarketing Agent as to the matters covered thereby on the date
of such certificate and, unless subsequently amended or supplemented, at each
Remarketing Reset Date subsequent thereto.
(c) References in the foregoing representations and warranties
to the 1934 Act Documents shall be deemed to refer to the registration statement
and prospectus, if any, in each case including the documents incorporated by
reference therein, if any of such documents are required pursuant to Section 6
hereof.
8. Conditions to the Remarketing Agent's Obligations.
The obligations of the Remarketing Agent to purchase and remarket the
Notes shall be subject to (a) the terms and conditions of the applicable
Remarketing Agency Agreement, (b) the due performance in all material respects
by the Company of its obligations and agreements as set forth in this
Remarketing Agreement and the accuracy of the representations and warranties in
this Remarketing Agreement and any certificate, delivered pursuant hereto, and
(c) the further condition that none of the following events shall exist at any
time during which the Remarketing Agent would otherwise be obligated to take any
action under this Remarketing Agreement:
(1) all of the Notes for which the Remarketing Agent is
responsible hereunder shall have been called for redemption or tendered for
repurchase by the Company; or
(2) without the prior written consent of the Remarketing
Agent, the Indenture or the Notes shall have been amended in any manner, or
otherwise contain any provisions not contained therein as of the date hereof
that in either case in the reasonable opinion of the Remarketing Agent
materially changes the nature of the Notes or the remarketing procedures (it
being understood that notwithstanding the previsions of this clause (2) the
Company shall not be prohibited from amending such documents); or
(3) if a prospectus and/or registration statement under the
1933 Act are required pursuant to Section 6, the Company shall fail to provide,
prior to the third Business Day preceding the applicable Remarketing Reset Date,
either or both to the Remarketing Agent; or
(4) there shall have been any downgrading or any notice of any
intended or potential downgrading in the rating accorded the Company's
securities by any "nationally recognized statistical rating organization" as
that term is defined by the Commission for the purposes of Securities Act Rule
436(g)(2),or
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any such organization shall have publicly announced that it
has under surveillance or review, with possible negative
implications, its rating of the Notes or any of the Company's
other outstanding debt.
9. Indemnification. (a) The Company agrees to indemnify and hold
harmless the Remarketing Agent and each person, if any, who controls the
Remarketing Agent within the meaning of Section 20 of the 1934 Act and any
director, officer, employee or affiliate thereof as follows:
(i) against any and all loss, liability, claim, damage
incurred by them (as and when incurred), arising out of (A) the failure to have
an effective registration statement under the 1933 Act, relating to the Notes,
if required, or the failure to satisfy the prospectus delivery requirements of
the 1933 Act because the Company failed to provide the Remarketing Agent with a
prospectus for delivery, or (B) any untrue statement or alleged untrue statement
of a material fact contained in the 1934 Act Documents, the registration
statement and prospectus, if any are required pursuant to Section 6 of this
Agreement, or the Remarketing Memorandum if any, or any amendment thereto
(including in each case any documents incorporated by reference therein), or (C)
the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading or (D) any violation by
the Company of, or any failure by the Company to perform any of its obligation
under, this Agreement or (E) the acts or emissions of the Rate Agent in
connection with its duties and obligations hereunder except those that are
finally judicially determined to be due to its gross negligence or willful
misconduct;
(ii) against any and all loss, liability, claim, damage
incurred by them (as and when incurred), to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
arising out of or based upon, any of items (A) through (E) of clause (i) above;
provided that (subject to Section 9(d) hereof) any such settlement is effected
with the written consent of the Company, which consent shall not be unreasonably
withheld; and
(iii) against any legal or other expenses (including
reasonable counsel fees), reasonably incurred by them (as and when incurred), in
investigating preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever arising out of or based upon, any of items
(A) through (E) of clause (i) above to the extent that any such expense is not
paid under (i) or (ii) above;
provided, however, that this indemnity shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by the Remarketing
Agent expressly for use in the Remarketing Memorandum, registration statement or
prospectus (or any amendment or supplement thereto), if applicable.
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(b) The Remarketing Agent agrees to indemnify and hold harmless
the Company, its officers and directors, and each person , if any who controls
the Company within the meaning of Section 20 of the 1934 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 1933 Act or under any other statute or
common law, and to reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable counsel fees)
incurred by them (when and as incurred) in connection with investigating any
such losses, claims, damages, or liabilities, or in connection with defending
any actions, but only insofar as such losses, claims, damages, liabilities,
expenses or actions arise out of or are based upon untrue statements or
omissions, or alleged untrue statements or omissions, made in the Remarketing
Memorandum, registration statement or prospectus (or any amendment or supplement
thereto), if applicable, in reliance upon and in conformity with written
information furnished to the Company by the Remarketing Agent expressly for use
in such Remarketing Memorandum or registration statement (or any amendment
thereto).
(c) Each indemnified party shall promptly give written notice to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder. The Company and the Remarketing Agent agree
that the notification required by the preceding sentence shall be a material
term of this Agreement. The omission so to notify the 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 if such indemnifying party or parties
were materially prejudiced by such omission 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 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 indemnifying parties will reimburse such
indemnified party or parties for the reasonable fees and expenses of any counsel
retained by them, as such expenses are incurred; provided, however, if the
defendants (including any impleaded parties) in any such action include both the
indemnified party and the indemnifying party and counsel for the indemnified
party shall have the right to select separate counsel, satisfactory to the
indemnifying party in its reasonable judgment, 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 to such
action in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances). No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 9 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an
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unconditional release of each indemnified party from all liability arising out
of such litigation, investigation proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in (a)-(d) of this
Section 9 is for any reason held to be unenforceable under applicable law by the
indemnified parties in connection with any Remarketing, the Company, on the one
hand, and the Remarketing Agent, on the other, shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Company and the Remarketing Agent, as
incurred, in such proportions as shall be appropriate to reflect the relative
fault of each party; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls the Remarketing Agent within the meaning of Section 20 of the 1934 Act
shall have the same rights to contribution as the Remarketing Agent, and each
director, officer of the Company, and each person, if any, who controls the
Company within the meaning of Section 20 of the 1934 Act shall have the same
rights to contribution as the Company.
(e) The indemnity and contribution agreements contained in this
Section 9 shall remain operative and in full force and effects regardless of any
investigation made by or on behalf of the Remarketing Agent, and shall survive
the termination or cancellation of this Agreement and the remarketing of any
Notes hereunder.
10. Termination of this Remarketing Agreement.
Subject to Section 3 hereof relating to the payment of fees and
expenses, this Agreement (i) shall terminate as to the Rate Agent on the
effective date of the removal of such Rate Agent pursuant to Section 4 hereof
and (ii) shall terminate as to the Remarketing Agent on the effective date of
the removal of such Remarketing Agent pursuant to Section 4 hereof.
11. Rate Agent's and Remarketing Agent's Performance: Duty of Care. The
duties and obligations of the Rate Agent and Remarketing Agent hereunder shall
be determined solely by the express provisions of this Remarketing Agreement and
the Notes and the Indenture and, in the case of the Remarketing Agent, the
applicable Remarketing Agency Agreement.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED IN SUCH STATE.
13. Term of Agreement. Unless otherwise terminated in accordance with
the provisions hereof this Agreement shall remain in full force and effect from
the date hereof until the first day thereafter on which no Notes are
outstanding.
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14. Successors and Assigns. The rights and obligations of the Company
hereunder may not be assigned or delegated to any other person without the prior
written consent of Merrill Lynch. The rights and obligations of Merrill Lynch
hereunder may not be assigned or delegated to any other person without the prior
written consent of the Company. This Agreement shall inure to the benefit of and
be binding upon the Company and Merrill Lynch and their respective successors
and assigns. The terms "successors" and "assigns" shall not include any
purchaser of any Notes merely because of such purchase.
15. Headings. Section headings have been inserted in this Agreement as
a matter of convenience of reference only, and it is agreed that such section
headings are not a part of this Agreement and will not be used in the
interpretation of any provisions of this Agreement.
16. Severability. If any provision of this Agreement shall be hold or
deemed to be or shall, in fact, be invalid, inoperative or unenforceable as
applied in any particular case in any or all jurisdictions because it conflicts
with any provision of any constitution, statute, rule or public policy or for
any other reason, such circumstances shall not have the effect of rendering the
provision in question invalid, inoperative or unenforceable in any other case,
circumstances or jurisdiction, or of rendering any other provision or provisions
of tills Agreement invalid, inoperative or unenforceable to any extent
whatsoever.
17. Counterparts. This Agreement my 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.
18. Amendments. This Agreement may be amended by any instrument in
writing signed by each of the parties hereto.
19. Notices. Unless otherwise specified, all communications hereunder
shall be in writing or by telefax and, if to the Remarketing Agent, shall be
mailed, transmitted by any standard form of telecommunication or delivered to
the Remarketing Agent. All written notices shall be deemed to be validly given
or made, if delivered by hand, when so delivered, or if railed when mailed
registered or certified mail, return receipt requested and postage prepaid. All
notices by telecommunication (including telephone) shall be deemed to be validly
given or made when received. All such notices, requests, consents or other
communications shall be addressed as follows: if to the Company, to it at 411
Fayetteville Street, Raleigh, North Carolina 27601-1748, Attention Mark F.
Mulhern, Treasurer, and if to the Remarketing Agent, to Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Merrill Lynch World Headquarters, World Financial
Center, North Tower, New York, New York 10281-1209, Attention: Debt Syndicate,
or to such other address as either of the above shall specify to the other in
writing.
20. Benefit. Nothing in this Agreement, express or implied, is intended
or shall be construed to confer upon or given any person other than the parties
hereto any remedy or claim under or by reason of this Agreement or any term,
covenant or condition hereof all of which shall be for the sole and exclusive
benefit of the parties.
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IN WITNESS WHEREOF, each of the Company and Merrill Lynch has caused
this Agreement to be executed in its name and on its behalf by one of its duly
authorized officers as of the date first above written.
CAROLINA POWER & LIGHT COMPANY
By: /s/ Mark F. Mulhern
--------------------
Name: Mark F. Mulhern
Title: Vice President and Treasurer
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Mary E. Ryan
----------------
Authorized Signatory
<PAGE>
REMARKETING AGENCY AGREEMENT
REMARKETING AGENCY AGREEMENT, dated as of ___________________,________
(this "Agreement") by and between Carolina Power & Light Company (the "Company")
and Merrill Lynch, Pierce, Fenner & Smith Incorporated (the "Remarketing
Agent"). The Remarketing Agent hereby agrees to attempt, on a reasonable efforts
basis, to remarket the Notes described below (the "Notes") that have been
tendered by the holders thereof for sale on ___________________,________ (the
"Remarketing Reset Date") at a price equal to 100% of the aggregate principal
amount so tendered.
The Remarketing Agent will attempt, on a reasonable efforts basis, to
remarket the validly tendered Notes at a price equal to 100% of the aggregate
principal amount so tendered. There is no assurance that the Remarketing Agent
will be able to remarket the entire principal amount of Notes tendered in a
remarketing. The Remarketing Agent shall also have the option, but not the
obligation, to purchase any tendered Notes at such price. The obligation of the
Remarketing Agent to purchase tendered Notes from the tendering Noteholders will
be subject to the termination events, as amended hereby, incorporated into this
Agreement by reference to the Underwriting Agreement, dated as of October 25,
1999 (the "Underwriting Agreement"), and to the conditions set forth in Section
8 of the Remarketing Agreement.
IF NO NEW REGISTRATION STATEMENT OR PROSPECTUS IS REQUIRED, INCLUDE THE
FOLLOWING: It is acknowledged and agreed that the Notes need not be further
registered under the Securities Act of 1933, as amended (the "1933 Act"), and
that, in connection with the remarketing of the Notes by the Remarketing Agent
in accordance with the terms of the Remarketing Agreement dated October 28, 1999
(the "Remarketing Agreement"), no prospectus meeting the requirements of Section
10 of the 1933 Act need be delivered or filed pursuant to Rule 424 under the
1933 Act.
It is understood that the Remarketing Agent may, in its discretion,
deliver to purchasers and prospective purchasers, in connection with the
remarketing, one or more forms of written communication describing the terms of
the Notes (each a "Remarketing Memorandum"), the form of each of which shall be
delivered to the Company not less than two Business Days prior to its use. Such
Remarketing Memorandum shall be subject to the approval of the Company prior to
its use by the Remarketing Agent, which approval shall not be unreasonably
withheld or delayed.
Section 12 of the Underwriting Agreement is hereby incorporated into
this Agreement in its entirety and made applicable to the obligations of the
Remarketing Agent to the extent applicable to any remarketing of the Notes,
except that Section 12 is amended to allow for termination of this Agreement by
the Remarketing Agent if the Company's representations and warranties therein
are not accurate and correct at each relevant Remarketing Reset Date.
A-1
<PAGE>
EACH OF THE REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 7 OF
THE ABOVE-REFERENCED REMARKETING AGREEMENT ARE ACCURATE AND CORRECT.
All references contained in the Underwriting Agreement to the
"Underwriter" shall be deemed to refer to the Remarketing Agent. All references
to the "Notes" shall be deemed to refer to the Notes described below. All
references to the "Closing Date" shall be deemed to refer to the Remarketing
Reset Date. The terms "Registration Statement" and "Prospectus" shall be deemed
to refer to the 1934 Act Documents and Remarketing Memorandum, if any, in each
case as amended or supplemented to the date hereof and the Remarketing Reset
Date, including the documents included in or incorporated by reference into such
documents.
IF A NEW REGISTRATION STATEMENT OR PROSPECTUS IS REQUIRED, INCLUDE THE
FOLLOWING: It is understood that a new registration statement or new prospectus
is being filed by the Company in connection with the remarketing of the Notes
(the "New Registration Statement" and/or "New Prospectus"). In connection
therewith and with the remarketing of the Notes, the Underwriting Agreement
(including the requirements therein relating to delivery of legal opinions,
comfort letters and officers' certificates) hereby is incorporated into this
Agreement in its entirety (except as modified below) and the Remarketing Agent
shall be deemed to be acting as "Underwriter" thereunder. All references in the
Underwriting Agreement to (i) the "Underwriter" shall be deemed to refer to the
Remarketing Agent, (ii) the Underwriting Agreement shall be deemed to refer to
the Remarketing Agency Agreement and (iii) the "Closing Date" shall be deemed to
refer to the Remarketing Reset Date. To the extent the provisions of the
Underwriting Agreement refer to the "Prospectus" or the "Registration
Statement," such references shall be deemed to refer to the New Prospectus or
the New Registration Statement as applicable, including all documents
incorporated by reference therein. Section 12 of the Underwriting Agreement
shall be amended to allow for the termination of this Agreement by the
Remarketing Agent if the Company's representations and warranties therein are
not accurate and correct in all material respects.
A-2
<PAGE>
All capitalized terms not otherwise defined in this Agreement have the
respective meanings assigned thereto in the Notes, the form of which is attached
hereto.
<TABLE>
<CAPTION>
<S> <C>
Company: Carolina Power & Light Company
Remarketing Agent and Address: Merrill Lynch, Pierce, Fenner & Smith Incorporated
Merrill Lynch World Headquarters
World Financial Center, North Tower, 26th Floor
New York, New York 10281-1209
Rate Agent and Address: [ ]
Title of Notes: Extendible Notes due October 28, 2009
Principal Amount of Notes to be Purchased: [ ]
Title of Indenture: Indenture dated as of October ___, 1999 as further amended
or supplemented from time to time by and between the
Company and the Trustee
Trustee: The Chase Manhattan Bank
</TABLE>
Current Ratings:
Moody's Investors Service, Inc.:
Standard & Poor's Ratings Services:
CERTAIN TERMS OF THE NOTES
Stated Maturity: October __, 2009
Spread Determination Date:
Duration/Mode Determination Date:
Tender Notice Date:
Interest Reset Date:
Tender Date:
New Interest Rate:
As determined by application of the
provisions set forth in the attached form
of the Notes on the
A-3
<PAGE>
LIBOR Determination Date or the Fixed Rate
Determination Date, as applicable.
Spread:
Interest Payment Dates:
Subsequent Spread Period:
Redemption Provisions: As set forth in the attached Prospectus
Supplement dated __________________, ____,
with the following terms specified for any
optional redemption:__________________
_____________________________________.
Beneficial Owner Tender Provisions: As set forth in the attached Pricing
Supplement dated ___________________. In
the event that the Remarketing Agent fails
to purchase all Notes validly tendered for
purchase on the Remarketing Reset Date,
then the Remarketing Agent shall promptly
notify the Company and the Trustee of such
failure.
Legal Opinion: If required to be delivered pursuant to
this Agreement, the opinion required to be
delivered by counsel to the Company
pursuant to Section 9(c) of the
Underwriting Agreement shall be modified to
read as follows: "(iii) The Notes have been
duly and validly authorized, executed and
delivered and are legal, valid and binding
obligations of the Company, enforceable in
accordance with their terms, except as
limited by bankruptcy, insolvency or other
laws affecting mortgagees' and other
creditors' rights and to general equitable
principles and any implied covenant of good
faith and fair dealing and are entitled to
the benefits of the Note afforded by the
Indenture; [three] global Notes registered
in the name of CEDE & Co., a nominee of The
Depository Trust Company ("DTC"), have been
duly authenticated in accordance with the
provisions of the Indenture, paid for and
delivered to DTC; and the Underwriter will
acquire the rights of a bona fide purchaser
(as such terms are defined in the Uniform
Commercial Code as in effect in the State
of New York (the "UCC")) in any portion of
the Notes transferred to the
A-4
<PAGE>
Underwriter by a prior owner thereof as
recorded on the books of DTC, provided that
(i) the portion of the Notes transferred is
an authorized denomination of the Notes,
(ii) the transfer is recorded on the books
of DTC by a debit to the transferor's
account with DTC and a credit to the
Underwriter's account with DTC, (iii) the
Underwriter makes payment to such
transferor of value for such transfer and
(iv) the Underwriter purchases such
interest in good faith and without notice
of any adverse claim, within the meaning of
the UCC."
Form of Notes: Global certificate registered in the name
of the nominee, which currently is CEDE &
Co., of the depository of the Notes, which
is DTC. The beneficial owners of the Notes
are not entitled to receive definitive
certificates representing their Notes,
except under limited circumstances. A
beneficial owner's ownership of a Note
currently is recorded on or through the
records of the brokerage firm or other
entity that is a participant in DTC and
that maintains such beneficial owner's
account.
Purchase Price: 100% of the principal amount of the Notes,
payable to DTC for the beneficial owners of
Tendered Notes.
Remarketing Fee: ____% of the principal amount of the Notes
outstanding on each Remarketing Reset Date.
Closing: Merrill Lynch, Pierce, Fenner & Smith
Incorporated Merrill Lynch World
Headquarters World Financial Center, North
Tower, 26th Floor New York, New York
10281-1209
A-5
<PAGE>
The foregoing terms are hereby confirmed and agreed to as of this day
of October 1999.
CAROLINA POWER & LIGHT COMPANY
By:
---------------------------------------
Name:
Title:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
---------------------------------------
Authorized Signatory
A-6
CALCULATION AGENCY AGREEMENT
BETWEEN
CAROLINA POWER & LIGHT COMPANY
AND
THE CHASE MANHATTAN BANK
Dated as of October 28, 1999
CAROLINA POWER & LIGHT COMPANY, a North Carolina corporation (the
"Company"), has authorized the issuance of $500,000,000 aggregate principal
amount of its Extendible Notes due October 28, 2009 (the "Notes").
The Company proposes to issue the Notes under and pursuant to the terms
of its Indenture (For Debt Securities) (the "Indenture"), dated as of October
28, 1999, between the Company and The Chase Manhattan Bank, in its capacity as
trustee (the "Trustee") and the Officer's Certificate, dated as of October 28,
1999, relating to the Notes (the "Officer's Certificate"), a copy of which is
attached hereto.
Capitalized terms used and not otherwise defined herein shall have the
meanings given to them in the Indenture, as supplemented by the Officer's
Certificate and the Notes.
As more particularly set forth in the Officer's Certificate, the Notes
are to bear interest (i) during the Initial Spread Period at a rate that will be
reset monthly equal to the one month LIBOR plus a spread of .33%, and (ii)
during each Subsequent Spread Period, either at a floating interest rate or at a
fixed interest rate.
For the purpose of providing for an agent of the Company (in such
capacity, the "Rate Agent") to calculate the LIBOR and the interest rate
applicable to the Notes in the event that the Notes are in Floating Rate Mode,
as specified and described in the Officer's Certificate, the Company and The
Chase Manhattan Bank, a banking corporation organized under the laws of the
State of New York, hereby agree as follows:
Section 1. Appointment of Rate Agent. The Company hereby appoints The
Chase Manhattan Bank as rate agent (the "Rate Agent") of the Company with
respect to the Notes when such Notes are in Floating Rate Mode, and the Rate
Agent hereby accepts its appointment in such capacity and its obligations as set
forth in this Agreement upon the terms and conditions set forth herein.
Section 2. Calculation of LIBOR and Interest Rate and Other Duties of
the Rate Agent. If the Notes are reset to the Floating Rate Mode for a
Subsequent Spread Period, as determined by the Company and the Remarketing Agent
pursuant to the Officer's Certificate and
<PAGE>
the Notes, the Rate Agent shall determine LIBOR and the interest rate on the
Notes for any Interest Reset Period in the manner set forth in the Officer's
Certificate. The Company shall (a) promptly following each Duration/Mode
Determination Date, notify the Rate Agent whether the Notes will be reset to the
Floating Rate Mode during the ensuing Subsequent Spread Period and, if the Notes
are to be reset to the Floating Rate Mode during such Subsequent Spread Period,
the first day of the Subsequent Spread Period and all other terms (other than
the applicable Spread) to be applicable to the Notes during such Subsequent
Spread Period, and (b) promptly following the Spread Determination Date, notify
the Rate Agent of the Spread applicable during the next ensuing Subsequent
Spread Period. The Rate Agent shall notify the Company, the Trustee (unless the
Rate Agent also then serves as the Trustee) and The Depository Trust Company (if
the Notes are then held in global form and The Depository Trust Company is
depository) of such LIBOR and interest rate as soon as practicable after the
determination thereof but in no event later than the second Business Day of the
relevant Interest Reset Period. The Rate Agent shall perform such other actions
and undertake such other duties of the Rate Agent as are expressly set forth in
the Officer's Certificate to be performed or undertaken by the Rate Agent,
including but not limited to providing investors, upon request, with LIBOR and
interest rate on the Notes for the then current and preceding Interest Reset
Periods.
Section 3. Fees and Expenses. The Rate Agent shall be entitled to such
compensation for its services under this Agreement as may be agreed upon with
the Company annually, and the Company shall pay such compensation and shall
reimburse the Rate Agent for all reasonable expenses and disbursements incurred
or made by the Rate Agent in connection with the services rendered by it under
this Agreement (including legal fees and expenses).
Section 4. Rights and Liabilities of Rate Agent. All certificates,
communications, opinions, determinations, calculations, quotations and decisions
given, expressed, made or obtained for the purposes of this Agreement or the
provisions of the Officer's Certificate relating to the calculation and payment
of interest on the Notes, whether by the reference banks (or any of them) or the
Rate Agent, will (in the absence of gross negligence, willful default or bad
faith) be binding on the Company, the Trustee, the Rate Agent and all of the
Holders of the Notes, and no liability will (in the absence of gross negligence,
willful default or bad faith) attach to the Rate Agent in connection with the
exercise or non-exercise by it of its power, duties and discretion under,
pursuant to, or as permitted by any provision of this Agreement or the Officer's
Certificate. The Rate Agent shall not have any liability to any person for (i)
any error resulting from the use of or reliance on a source or publication
required to be used pursuant to this Agreement, the Officer's Certificate or the
Notes, (ii) any error in judgment made in good faith by a responsible officer or
officers of the Rate Agent unless the Rate Agent was grossly negligent or acting
in bad faith in ascertaining the pertinent facts, (iii) the selection of the
reference banks, or (iv) any inability of the Rate Agent to obtain quotations
from the reference banks which is caused by circumstances beyond its control.
The Rate Agent shall incur no liability for, or in respect of, any action taken,
omitted to be taken or suffered by it in reliance upon any certificate,
affidavit, instruction, notice, request, direction, order, statement or other
paper, document or communication it reasonably believed in good faith to be
genuine. Any order, certificate, affidavit, instruction, notice, request,
direction, statement or other communication from or on behalf of the Company
made or given by it and sent, delivered or
2
<PAGE>
directed to the Rate Agent under, pursuant to, or as permitted by any provision
of this Agreement or the Officer's Certificate, shall be sufficient for purposes
of this Agreement if such communication is in writing and signed by any officer
of the Company. The Rate Agent may consult with counsel satisfactory to it; and
the opinion of such counsel shall constitute full and complete authorization and
protection of the Rate Agent with respect to any action taken, omitted to be
taken or suffered by it hereunder in good faith and in accordance with and in
reliance upon the opinion of such counsel.
IN ACTING UNDER THIS AGREEMENT AND IN CONNECTION WITH THE NOTES, THE
RATE AGENT IS ACTING SOLELY AS AGENT OF THE COMPANY; AND IN ACTING UNDER THIS
AGREEMENT, THE RATE AGENT (IN ITS CAPACITY AS SUCH) DOES NOT ASSUME ANY
OBLIGATION TOWARDS, OR ANY RELATIONSHIP OF AGENCY OR TRUST FOR OR WITH, ANY OF
THE OWNERS OR HOLDERS OF THE NOTES.
Section 5. Duties of Rate Agent. The Rate Agent, in its capacity as
such, shall be obligated to perform only such duties as are specifically set
forth herein or in the form of Notes pursuant or in the Officer's Certificate
provided to the Rate Agent, if any; and no other duties or obligations on the
part of the Rate Agent, in its capacity as such, shall be implied by this
Agreement or by reference herein to any other document or instrument.
Section 6. Termination, Resignation or Removal of Rate Agent. The Rate
Agent may at any time resign and terminate its service under this Agreement by
giving no less than 60 days written notice to the Company unless the Company
consents in writing to a shorter time. Upon receipt of notice of termination by
the Rate Agent, the Company agrees to use reasonable efforts to promptly to
appoint a successor Rate Agent. The Company may terminate this Agreement or
remove the currently serving Rate Agent and appoint a successor Rate Agent by
giving no less than 60 days written notice to the Rate Agent unless the Rate
Agent consents in writing to shorter time; provided, however, that only 15 days
prior written notice shall be required if the Company elects to remove the
currently serving Rate Agent due to (i) a default in the performance of its
obligations hereunder or (ii) an inability to reach an agreement with regard to
the Rate Agent's compensation under Section 3 of this Agreement. Notwithstanding
the foregoing, no resignation or removal of the Rate Agent shall become
effective prior to the date of the appointment by the Company, as provided in
Section 7 hereof, of a successor Rate Agent and the acceptance of such
appointment by such successor Rate Agent. Upon termination by either party
hereto pursuant to the provisions of this Section or the resignation or removal
of the then serving Rate Agent, the Rate Agent shall be entitled to the payment
of any compensation owed to it by the Company hereunder and to the reimbursement
of all reasonable expenses and disbursements incurred or made by the Rate Agent
in connection with the service rendered by it hereunder, as provided by Section
3 hereof. Notwithstanding any resignation or removal of the Rate Agent or
termination of this Agreement for any reason, the provisions of Section 8 hereof
shall remain in effect following such termination or, in the case of the
resignation or removal of the then serving Rate Agent, in favor of the resigning
or removed Rate Agent following such resignation or removal.
Section 7. Appointment of Successor Rate Agent. Any successor Rate
Agent appointed by the Company following termination of this Agreement pursuant
to the provisions of Section 6 hereof shall execute and deliver to the Rate
Agent and to the Company an instrument
3
<PAGE>
accepting such appointment; and thereupon, (i) such successor Rate Agent shall,
without any further act or instrument become vested with all the rights,
immunities, duties and obligations of the Rate Agent under this Agreement, with
like effect as if originally named hereunder, (ii) the resigning or removed Rate
Agent shall be obligated and authorized to transfer and deliver, and the
successor Rate Agent appointed by the Company shall be entitled to receive and
accept, copies of any available records maintained by the Rate Agent in
connection with the performance of its obligations hereunder, and (iii) the
resigning or removed Rate Agent shall be released from any further
responsibility to act as Rate Agent under this Agreement.
Section 8. Indemnification. The Company shall:
(a) indemnify, defend and hold harmless the Rate Agent and its
directors, officers, agents and employees (collectively, the
"Indemnitees") harmless from and against any and all claims,
liabilities, losses, damages, fines, penalties, taxes (other than taxes
on the income of the Rate Agent) and expenses, including out-of-pocket
and incidental expenses and legal fees (including the allocated costs
and expenses of in-house counsel and legal staff) ("Losses") that may
be imposed on, incurred by, or asserted against, the Indemnitees or any
of them for following any instructions or other directions upon which
the Rate Agent is authorized to rely pursuant to the terms of this
Agreement, the Officer's Certificate or the Notes; and
(b) in addition to and not in limitation of clause (a) above
of this Section, indemnify, defend and hold harmless the Indemnitees
and each of them from and against any and all Losses that may be
imposed on, incurred by, or asserted against, the Indemnitees or any of
them in connection with or arising out of the exercise or performance
by the Rate Agent of any of its powers or duties under this Agreement,
the Officers' Certificate or the Notes, provided that the Indemnitees
have not acted with gross negligence or in bad faith or engaged in
willful misconduct.
In connection with any actual or alleged Losses under either (a) or
(b) above, the Company shall undertake the defense of any such matter with
counsel acceptable to the Rate Agent, and provided that the Rate Agent shall be
entitled, at its option, to employ separate counsel in connection with any such
matter and to participate in the defense of such matter, but the fees and
expenses of such separate Rate Agent counsel shall be at the Rate Agent's own
expense.
Section 9. Merger, Consolidation or Sale of Business by Rate Agent. Any
Person into which the Rate Agent may be merged, converted, or consolidated, or
any Person resulting from any merger, conversion or consolidation to which the
Rate Agent may be a party, or any Person to which the Rate Agent may sell or
otherwise transfer all or substantially all of its corporate trust business,
shall, to the extent permitted by applicable law, become the Rate Agent under
this Agreement without the execution of any paper or any further act by the
parties hereto. The Rate Agent will give prompt notice of any such merger,
consolidation or sale to the Company.
4
<PAGE>
Section 10. Notices. Any notice or other communication given hereunder
shall be delivered in person, or sent by letter or telecopy to the address given
below or such other address as the party to receive such notice may have
previously specified pursuant to notice given in accordance with this Section:
To the Company:
Carolina Power & Light Company
411 Fayetteville Street
Raleigh, North Carolina 27601-1748
Attention: Mark F. Mulhern, Treasurer
Telecopy: (919) 546-6373
Telephone: (919) 546-7826
To the Rate Agent:
The Chase Manhattan Bank
c/o Chase National Corporate Services, Inc.
3800 Colonnade Parkway, Suite 490
Birmingham, Alabama 35243
Attention: Corporate Trust Administration
Telecopy: (205) 968-0500
Telephone: (205) 968-9109
Any notice or other communication hereunder given by letter or telecopy shall be
deemed to have been made, given, furnished, and filed upon receipt.
The parties may, by notice given to the other party as specified above,
designate other or different addresses, telecopy numbers or telephone numbers to
which subsequent notices, requests, reports or other communications shall be
directed.
Section 11. Benefit of Agreement. Except as provided herein, this
Agreement is solely for the benefit of the parties hereto and their respective
successors and assigns and no other person shall acquire or have any rights
under or by virtue hereof other than, solely for purposes of Section 8 hereof,
the directors, officers, agents and employees of the Rate Agent.
Section 12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
Section 13. Severability. If any provision of this Agreement shall be
held or deemed to be or shall, in fact, be invalid, inoperative or unenforceable
as applied in any particular case in any jurisdiction or jurisdictions, or in
all jurisdictions because it conflicts with any provisions or
5
<PAGE>
any constitution, statute or rule of public policy, or for any other reason,
such circumstances shall not have the effect of rendering any other provision or
provisions of this Agreement invalid, inoperative or unenforceable in any other
case or circumstances, or of rendering any other provision or provisions of this
Agreement invalid, inoperative or unenforceable to any extent whatsoever.
Section 14. Amendments, Etc. The terms of this Agreement shall not be
waived, altered, modified, amended or supplemented in any manner whatsoever
except by written instrument signed by the parties hereto.
Section 15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
Section 16. The Rate Agent, in its individual or any other capacity,
may buy, sell, hold and deal in any of the Notes. Additionally, the Rate Agent
may exercise any vote or join in any action which any beneficial owners of Notes
may be entitled to exercise or take with like effect as if it did not act in any
capacity under the Calculation Agency Agreement. The Rate Agent, in its
individual capacity, either as principal or agent, may also engage in or have an
interest in any financial or other transaction with the Company as freely as if
it did not act in any capacity under the Calculation Agency Agreement.
[The remainder of this page intentionally left blank.]
6
<PAGE>
IN WITNESS WHEREOF, this Agreement has been entered into the day and
year first above written.
CAROLINA POWER & LIGHT COMPANY
By: /s/ MARK F. MULHERN
----------------------------------
Mark F. Mulhern
Vice President and Treasurer
THE CHASE MANHATTAN BANK
By: /s/ PATTI MANER
----------------------------------
Patti Maner
Authorized Representative
7
EXHIBIT NO. 12
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND
PREFERRED DIVIDENDS COMBINED AND RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
------------------------- ---------------------------------------------------
12 Months Ended June 30, Years Ended December 31,
------------------------- ---------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ---- ----
(Thousands of Dollars)
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings, as defined:
Net income $ 402,569 $403,805 $399,238 $388,317 $ 391,277 $372,604 $313,167
Fixed charges, as below 192,281 193,680 191,832 193,632 204,593 226,833 213,821
Income taxes, as below 243,499 253,325 249,180 225,340 247,405 232,046 180,518
-------------------------------------------------------------------------------
Total earnings, as defined $ 838,349 $850,810 $840,250 $807,289 $ 843,275 $831,483 $ 707,506
===============================================================================
Fixed Charges, as defined:
Interest on long-term debt $ 169,475 $169,140 $169,901 $163,468 $ 172,622 $ 187,397 $ 183,891
Other interest 11,630 13,755 11,156 18,743 19,155 25,896 16,119
Imputed interest factor in rentals-charged
Principally to operating expenses 11,176 10,785 10,775 11,421 12,816 13,540 13,811
-------------------------------------------------------------------------------
Total fixed charges, as defined $ 192,281 $193,680 $191,832 $ 193,632 $ 204,593 $226,833 $213,821
===============================================================================
Earnings Before Income Taxes $ 646,068 $657,130 $648,418 $613,657 $ 638,682 $604,650 $493,685
===============================================================================
Ratio of Earnings Before Income Taxes to
Net Income 1.60 1.63 1.62 1.58 1.63 1.62 1.58
Income Taxes:
Income tax expense 255,195 261,595 257,494 233,565 255,630 240,386 188,813
Included in AFUDC - deferred taxes in nuclear
Fuel amortization and book depreciation (11,696) (8,270) (8,314) (8,225) (8,225) (8,340) (8,295)
-------------------------------------------------------------------------------
Total income taxes $ 243,499 $253,325 $249,180 $225,340 $ 247,405 $232,046 $180,518
===============================================================================
Fixed Charges and Preferred Dividends Combined:
Preferred dividend requirements $ 2,968 $ 4,391 $ 2,967 $ 6,052 $ 9,609 $ 9,609 $ 9,609
Portion deductible for income tax purposes (312) (312) (312) (312) (312) (312) (312)
-------------------------------------------------------------------------------
Preferred dividend requirements not deductible $ 2,656 $ 4,079 $ 2,655 $ 5,740 $ 9,297 $ 9,297 $ 9,297
===============================================================================
Preferred dividend factor:
Preferred dividends not deductible times
ratio of Earnings before income taxes to
net income $ 4,250 $ 6,649 $ 4,301 $ 9,069 $ 15,154 $ 15,061 $ 14,689
Preferred dividends deductible for income
taxes 312 312 312 312 312 312 312
Fixed charges, as above 192,281 193,680 191,832 193,632 204,593 226,833 213,821
-------------------------------------------------------------------------------
Total fixed charges and preferred
dividends combined $ 196,843 $200,641 $196,445 $203,013 $ 220,059 $ 242,206 $228,822
===============================================================================
Ratio of Earnings to Fixed Charges and Preferred
Dividends Combined 4.26 4.24 4.28 3.98 3.83 3.43 3.09
Ratio of Earnings to Fixed Charges 4.36 4.39 4.38 4.17 4.12 3.67 3.31
</TABLE>
