<PAGE>
As filed with the Securities and Exchange Commission on March 24, 1999
Reg. No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Florida Progress FLORIDA 59-2147112
Corporation DELAWARE APPLIED FOR
Florida Progress Funding DELAWARE APPLIED FOR
Corporation DELAWARE APPLIED FOR
FPC Capital I
FPC Capital II
(State or other (I.R.S. Employer
(Exact name of each jurisdiction of Identification No.)
registrant as specified incorporation or
in its charter) organization)
Florida Progress Florida Progress Funding FPC Capital I and FPC
Corporation: Corporation Capital II:
One Progress Plaza 300 Delaware Avenue 300 Delaware Avenue
St. Petersburg, Florida Suite 319 Suite 319
33701 Wilmington, Delaware Wilmington, Delaware
(727) 824-6400 19801 19801
(302) 427-5821 (302) 427-5821
(Address, including zip (Address, including zip (Address, including zip
code, and telephone code, and telephone code, and telephone
number, including area number, including area number, including area
code, code, of each code, of each
of each registrant's registrant's principal registrant's principal
principal executive executive offices) executive offices)
offices)
--------------
Pamela A. Saari
Treasurer
Florida Progress Corporation
One Progress Plaza
St. Petersburg, Florida 33701
(727) 820-5871
(Name, address, including zip code, and telephone number, including area code,
of agent for service of each registrant)
--------------
Copies to:
Kenneth E. Armstrong, Esq. Jones, Day, Reavis & Pogue
Vice President and General Counsel 77 West Wacker
Florida Progress Corporation Chicago, Illinois 60601-1692
One Progress Plaza Attn: Timothy J. Melton, Esq.
St. Petersburg, FL 33701 (312) 782-3939
(727) 824-5153
--------------
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
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- -------------------------------------------------------------------------------------------
<CAPTION>
Title of Amount Proposed Maximum Proposed Maximum Amount of
each Class of Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered(1) per Unit(1)(2)(3) Price(1)(2)(3) Fee(1)
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Cumulative Quarterly
Income Preferred
Securities of FPC
Capital I and FPC
Capital II
("QUIPS")(5)...........
- -------------------------------------------------------------------------------------------
Junior Subordinated
Deferrable Interest
Notes of Florida
Progress Funding
Corporation
("QUIDS")(5)...........
- -------------------------------------------------------------------------------------------
Guarantees of QUIPS of
FPC Capital I and FPC
Capital II by Florida
Progress
Corporation(3).........
- -------------------------------------------------------------------------------------------
Guarantees of QUIDS of
Florida Progress
Funding Corporation by
Florida Progress
Corporation(4).........
- -------------------------------------------------------------------------------------------
Total................... $300,000,000(5) 100% $300,000,000(5) $83,400
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
</TABLE>
(footnotes continued on following page)
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- --------------------------------------------------------------------------------
<PAGE>
(continued from previous page)
(1) Such indeterminate amount of QUIPS and QUIDS as may from time to time be
issued at indeterminate prices. QUIDS may be issued and sold to FPC Capital
I and FPC Capital II, in which event such QUIDS may later be distributed to
the holders of QUIPS upon a dissolution of FPC Capital I and FPC Capital II
and the distribution of the assets thereof.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) and exclusive of accrued interest and dividends, if
any. Calculated using the maximum aggregate offering price of such
indeterminate amount of QUIPS and QUIDS that may be offered from time to
time at an offering price below their face value.
(3) Includes the rights of holders of the QUIPS of FPC Capital I or FPC Capital
II under the QUIPS Guarantees and back-up undertakings, consisting of
obligations by Florida Progress Corporation to provide certain indemnities
in respect of, and pay and be responsible for certain expenses, costs,
liabilities and debts of, as applicable, FPC Capital I and FPC Capital II
and such other obligations of Florida Progress Corporation and Florida
Progress Funding Corporation as are set forth in the Amended and Restated
Trust Agreement, the Junior Subordinated Indenture and Supplemental
Indentures thereto, in each case as further described in the Registration
Statement. No separate consideration will be received for any Florida
Progress Corporation Guarantees or any back-up undertakings.
(4) No separate consideration will be received for any such Guarantees.
(5) In no event will the aggregate initial public offering price of the
securities issued under this Registration Statement exceed $300,000,000,
exclusive of accrued distributions and interest (if any). QUIDS may be
issued and sold by Florida Progress Funding Corporation to FPC Capital I or
FPC Capital II in an aggregate principal amount equal to the aggregate
stated liquidation preference of any QUIDS and Common Securities to be
issued and sold by FPC Capital I or FPC Capital II. QUIDS may later be
distributed for no additional consideration to the holders of the QUIPS
upon a dissolution of FPC Capital I or FPC Capital II and the distribution
of the assets thereof.
----------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
EXPLANATORY NOTE
This Registration Statement includes a prospectus supplement that relates to
the proposed offering of QUIPS as described therein currently planned to
commence as soon as practicable after the effective date of the Registration
Statement.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this preliminary prospectus is not complete and may be +
+changed. These securities may not be sold until the registration statement +
+filed with the Securities and Exchange Commission is effective. This +
+preliminary prospectus is not an offer to sell nor does it seek an offer to +
+buy these securities in any jurisdiction where the offer or sale is not +
+permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion. Dated March 24, 1999.
Prospectus Supplement to Prospectus Dated , 1999.
Preferred Securities
Florida
Progress FPC Capital I
Logo
% Cumulative Quarterly Income Preferred Securities,
Series A (QUIPSSM)*
(Liquidation Amount $25 per QUIPS)
Fully and unconditionally guaranteed, as described herein, by
Florida Progress Corporation
--------
A brief description of the % Cumulative Quarterly Income Preferred
Securities, Series A (QUIPSSM) can be found under "Summary Information--Q&A" in
this prospectus.
Application will be made to list the QUIPS on the New York Stock Exchange. If
approved for listing, Florida Progress Corporation expects trading of the QUIPS
to begin within 30 days after they are first issued.
See "Risk Factors" on page S-5 to read about specific risks you should
consider before buying the QUIPS.
--------
Neither the Securities and Exchange Commission nor any other regulatory body
has approved or disapproved of these securities or passed upon the accuracy or
adequacy of this prospectus. Any representation to the contrary is a criminal
offense.
--------
<TABLE>
<CAPTION>
Per QUIPS Total
--------- -----
<S> <C> <C>
Initial public offering price(1).............................. $ $
Underwriting commissions to be paid by Florida Progress Corpo-
ration....................................................... (2) (2)
Proceeds to FPC Capital I..................................... $ $
</TABLE>
- -----
(1) Plus accumulated distributions, if any, from the date of original issuance,
which is expected to be , 1999.
(2) Underwriting commissions of $.7875 per QUIPS will be paid by Florida
Progress Corporation; except that for sales of 10,000 or more QUIPS to a
single purchaser, the commissions will be $.50 per QUIPS.
--------
The Underwriters expect to deliver the QUIPS in book-entry form only through
The Depository Trust Company against payment in New York, New York on , 1999.
*"QUIPS" AND "QUIDS" are registered service marks of Goldman, Sachs & Co.
--------
Goldman, Sachs & Co. Salomon Smith Barney
--------
Prospectus Supplement dated , 1999.
<PAGE>
SUMMARY INFORMATION--Q&A
The following information supplements, and should be read together with, the
information contained in other parts of this Prospectus Supplement and in the
accompanying Prospectus. This summary highlights selected information from this
Prospectus Supplement and the accompanying Prospectus to help you understand
the % Cumulative Quarterly Income Preferred Securities, Series A (QUIPSSM)
(the "Series A QUIPS"). You should carefully read this Prospectus Supplement
and the accompanying Prospectus to understand fully the terms of the Series A
QUIPS as well as the tax and other considerations that are important to you in
making a decision about whether to invest in the Series A QUIPS. You should pay
special attention to the "Risk Factors" section beginning on Page S-5 of this
Prospectus Supplement to determine whether an investment in the Series A QUIPS
is appropriate for you.
What are the Series A QUIPS?
Each Series A QUIPS represents an undivided beneficial interest in the
assets of FPC Capital I (the "Trust"). Each Series A QUIPS will entitle the
holder to receive quarterly cash distributions as described in this Prospectus
Supplement. The Trust is offering Series A QUIPS at a price of $ for each
Series A QUIPS.
Who is the Trust?
The Trust is a Delaware business trust. Its principal place of business is
300 Delaware Avenue, Suite 319, Wilmington, Delaware 19801, and the telephone
number is (302) 427-5821.
The Trust will sell its Series A QUIPS to the public and its Series A common
securities (the "Series A Common Securities") to Florida Progress Funding
Corporation ("Funding Corp."), a direct, wholly owned subsidiary of Florida
Progress Corporation ("Florida Progress"). The Trust will use the proceeds from
these sales to buy the % Junior Subordinated Deferrable Interest Notes, Series
A due , 2039 (QUIDSSM) (the "Series A QUIDS") from Funding Corp. with the
same financial terms as the Series A QUIPS. Florida Progress will guarantee
payments made on the Series A QUIDS and the Series A QUIPS as described herein.
The First National Bank of Chicago will act as property trustee (the
"Property Trustee") of the Trust. A direct or indirect, wholly owned subsidiary
of Florida Progress also will act as trustee (the "Administrative Trustee") of
the Trust. First Chicago Delaware Inc. will be an additional trustee (the
"Delaware Trustee") of the Trust. The First National Bank of Chicago will act
as trustee (the "Indenture Trustee") under the Junior Subordinated Indenture,
as supplemented (the "Junior Subordinated Indenture"), pursuant to which the
Series A QUIDS will be issued and will act as trustee (the "Guarantee Trustee")
under the Series A Preferred Securities Guarantee of Florida Progress (the
"Series A QUIPS Guarantee") (as defined below). The Property Trustee, Delaware
Trustee and Administrative Trustee are sometimes referred to as the "Securities
Trustees."
Who is Florida Progress?
Florida Progress was incorporated under the laws of Florida on January 21,
1982. Florida Progress is a diversified electric utility holding company. The
principal executive offices of Florida Progress are located at One Progress
Plaza, St. Petersburg, Florida 33701, and the telephone number is (727) 824-
6400.
S-1
<PAGE>
Who is Funding Corp.?
Funding Corp. was established to obtain financing for Florida Progress and
direct and indirect subsidiaries or affiliates of Florida Progress. Funding
Corp. does not and will not engage in business activities other than such
financing.
Funding Corp. was incorporated under the laws of Delaware on March 18, 1999
and is a wholly owned subsidiary of Florida Progress. The principal executive
offices of Funding Corp. are located at 300 Delaware Avenue, Suite 319,
Wilmington, Delaware 19801, and the telephone number is (302) 427-5821.
When will you receive quarterly distributions?
If you purchase the Series A QUIPS, you are entitled to receive cumulative
cash distributions at an annual rate of % (the "Securities Rate") of the
liquidation amount of $25 per Series A QUIPS. Distributions will accumulate
from the date the Trust issues the Series A QUIPS (the "Issue Date") and will
be paid quarterly in arrears on March 31, June 30, September 30 and December 31
of each year (each, a "Distribution Date"), beginning June 30, 1999.
When can payment of your distributions be deferred?
So long as no Junior Subordinated Indenture Event of Default (as defined
below) has occurred and is continuing, Funding Corp. can, on one or more
occasions, defer interest payments on the Series A QUIDS for up to 20
consecutive quarterly periods. A deferral of interest payments cannot extend,
however, beyond the maturity date of the Series A QUIDS (which is ,
2039).
If Funding Corp. defers interest payments on the Series A QUIDS, the Trust
will also defer distributions on the Series A QUIPS. During this deferral
period, distributions will continue to accrue on the Series A QUIPS at an
annual rate of % of the liquidation amount of $25 per Series A QUIPS. Also,
the deferred distributions will themselves accrue interest at an annual rate of
% (to the extent permitted by law). If Funding Corp. makes all deferred
interest payments on the Series A QUIDS, with accrued interest, it can again
defer interest payments on the Series A QUIDS.
During any period in which Funding Corp. defers interest payments on the
Series A QUIDS, neither Florida Progress nor Funding Corp. will be permitted to
(with limited exceptions):
. pay a dividend or make any distributions on its capital stock or redeem,
purchase, acquire or make a liquidation payment on any of its capital
stock; or
. make an interest, principal or premium payment on, or repurchase or
redeem, any of its debt securities that rank equally with or junior to
the Series A QUIDS or the Series A QUIDS Guarantee (as defined below), or
make any guarantee payments with respect to any guarantee by it of debt
securities of any of its subsidiaries if the guarantee is equal to or
junior in right of payment to the Series A QUIDS or the Series A QUIDS
Guarantee.
If Funding Corp. defers payments of interest on the Series A QUIDS, the
Series A QUIDS will, from the time of deferral, be treated as having been
reissued with original issue discount ("OID") for United States federal income
tax purposes. This means that you will be required to accrue interest income
and include the amounts of this income in your gross income for United States
federal income tax purposes even though you will not have received any cash
distributions relating to this interest income, and even though you may use the
cash method of accounting. See "United States Federal Income Tax
Considerations--Original Issue Discount."
S-2
<PAGE>
When can the trust redeem the Series A QUIPS?
The Trust must redeem all of the outstanding Series A QUIPS and Common
Securities when the Series A QUIDS are paid at maturity on , 2039. In
addition, if Funding Corp. redeems any Series A QUIDS before their maturity,
the Trust will use the cash it receives from the redemption to redeem, on a pro
rata basis, Series A QUIPS and Series A Common Securities (collectively, the
"Series A Trust Securities") having a combined liquidation amount equal to the
principal amount of the Series A QUIDS redeemed.
Funding Corp. can redeem some or all of the Series A QUIDS before their
maturity at 100% of their principal amount on one or more occasions any time on
or after , 2004. Funding Corp. also has the option to redeem the Series A
QUIDS, in whole, but not in part, at any time if specific changes in tax or
investment company law occur and other conditions are satisfied, as more fully
described under "Description of the Series A QUIPS--Special Event Redemption or
Distribution." In any case, Funding Corp. will pay accrued interest to the date
of redemption.
What is Florida Progress's guarantee of the Series A QUIPS?
Florida Progress will guarantee the Series A QUIPS based on:
. its guarantee of Funding Corp.'s obligations to make payments on the
Series A QUIDS (the "Series A QUIDS Guarantee");
. the Series A QUIPS Guarantee, which guarantees the Trust's obligation to
pay distributions on the Series A QUIPS; and
. its obligations under the Trust Agreement and the Agreement as to
Expenses and Liabilities (each of the capitalized terms being used as
defined under "FPC Capital I" at page S-8 of this Prospectus Supplement).
Florida Progress' obligations under the Series A QUIDS Guarantee are
subordinate and junior to all of its Senior Debt (as defined under "Description
of the QUIDS--Subordination" in the accompanying Prospectus).
The payment of distributions on the Series A QUIPS is guaranteed by Florida
Progress under the Series A QUIPS Guarantee, but only to the extent the Trust
has funds legally and immediately available to make distributions.
Florida Progress' obligations under the Series A QUIPS Guarantee are:
. subordinate and junior in right of payment to its other liabilities;
. equal in rank to its most senior preferred stock; and
. senior to its common stock.
When could the Series A QUIDS be distributed to you?
Funding Corp. has the right to terminate the Trust at any time. If Funding
Corp. terminates the Trust, the Trust will liquidate by distributing the Series
A QUIDS to holders of the Series A Trust Securities on a pro rata basis. If the
Series A QUIDS are distributed, Funding Corp. will use its best efforts to list
the Series A QUIDS on the New York Stock Exchange (or any other exchange on
which the Series A QUIPS are then listed) in place of the Series A QUIPS. For a
discussion of Funding Corp.'s ability to distribute the Series A QUIDS, see
"Description of the Series A QUIPS--Special Event Redemption or Distribution"
and "--Liquidation Distribution Upon Dissolution."
S-3
<PAGE>
Will the Series A QUIPS be listed on a Stock Exchange?
Application will be made to list the Series A QUIPS on the New York Stock
Exchange. If approved, trading of the Series A QUIPS is expected to begin
within 30 days after they are first issued.
Will holders of the Series A QUIPS have any voting rights?
Generally, the holders of the Series A QUIPS will not have any voting
rights. See "Description of the Series A QUIPS--Voting Rights."
In what form will the Series A QUIPS be issued?
The Series A QUIPS will be represented by one or more global securities that
will be deposited with and registered in the name of The Depository Trust
Company or its nominee. This means that you will not receive a certificate for
your Series A QUIPS and that your broker will maintain your position in the
Series A QUIPS. Florida Progress expects that the Series A QUIPS will be ready
for delivery through The Depository Trust Company on or about , 1999.
S-4
<PAGE>
RISK FACTORS
Your investment in the Series A QUIPS will involve risks. You should
carefully consider the following discussion of risks, and the other information
in this Prospectus Supplement and the accompanying Prospectus, before deciding
whether an investment in the QUIPS is suitable for you.
There are statements in this Prospectus Supplement and accompanying
Prospectus and in the documents incorporated herein and therein by reference
that are not historical fact, but are "forward-looking statements," which are
identified by the use of forward-looking terminology such as "believes,"
"expects," "may," "should," "will" or "anticipates" or the negative of or
variations on these terms. Discussions of strategy that involve risks or
uncertainties are also forward-looking. Actual results for Florida Progress may
differ from those expected due to a number of variables, including, but not
limited to, actual sales, the effects of competition, the implementation of
utility restructuring, environmental and nuclear and other regulatory
requirements, the timing and effect of regulatory and court proceedings and the
timely completion of Year 2000 modifications. While Florida Progress believes
that estimates given accurately measure the expected outcome, actual results
could vary materially due to the variables mentioned and other factors.
Funding Corp.'s Obligations under the Series A QUIDS and Florida Progress's
Obligations under the Series A QUIDS Guarantee and the Series A QUIPS Guarantee
are Subordinated.
Funding Corp.'s obligations under the Series A QUIDS will rank junior in
priority of payment to all of Funding Corp.'s Senior Debt (as defined under
"Description of the QUIDS--Subordination" in the accompanying Prospectus). The
obligations of Florida Progress under the Series A QUIDS Guarantee will be
subordinate and junior to all present and future Senior Debt of Florida
Progress. This means that neither Funding Corp. nor Florida Progress can make
any payments on the Series A QUIDS or the Series A QUIDS Guarantee if it
defaults on a payment of Senior Debt and does not cure that default within the
applicable grace period or if the Senior Debt becomes immediately due because
of a default and has not yet been paid in full. Funding Corp. currently has no
Senior Debt outstanding, but could issue such Senior Debt in the future. At
December 31, 1998, Senior Debt of Florida Progress aggregated approximately
$1.2 billion.
Florida Progress' obligations under the Series A QUIPS Guarantee will rank
in priority of payment as follows:
. subordinate and junior in right of payment to its other liabilities;
. equal in rank to its most senior preferred stock; and
. senior to its common stock.
This means that Florida Progress cannot make any payments on the Series A
QUIPS Guarantee if it defaults on a payment on any of its other liabilities. In
addition, in the event of the bankruptcy, liquidation or dissolution of Florida
Progress, its assets would be available to pay obligations under the Series A
QUIPS Guarantee only after Florida Progress made all payments on its other
Senior Debt.
None of the Series A QUIPS, the Series A QUIDS, the Series A QUIDS Guarantee
nor the Series A QUIPS Guarantee limit the ability of Florida Progress or
Funding Corp. to incur additional indebtedness, including indebtedness that
will rank senior in priority of payment to the Series A QUIDS, the Series A
QUIDS Guarantee and the Series A QUIPS Guarantee. See "Description of the QUIPS
Guarantee--Subordination" and "Description of the QUIDS--Subordination" in the
accompanying Prospectus.
S-5
<PAGE>
The Series A QUIPS Guarantee Only Covers Payments if the Trust has Cash
Available.
The ability of the Trust to pay scheduled distributions on the Series A
QUIPS, the redemption price of the Series A QUIPS and the liquidation amount of
each Series A QUIPS is solely dependent upon Funding Corp. making the related
payments on the Series A QUIDS when due.
If Funding Corp. defaults on its obligations to pay principal or interest on
the Series A QUIDS, the Trust will not have sufficient funds to pay
distributions, the redemption price or the liquidation amount of each Series A
QUIPS. In those circumstances, you will not be able to rely upon the Series A
QUIPS Guarantee for payment of these amounts.
Instead, you:
. may directly sue Florida Progress or Funding Corp. or seek other remedies
to collect your pro rata share of payments owed; or
. may rely on the Property Trustee to enforce the Trust's rights under the
Series A QUIDS and the Series A QUIDS Guarantee.
Deferral of Distributions Would Have Tax Consequences For You and May Affect
the Trading Price of the Series A QUIPS.
So long as no Junior Subordinated Indenture Event of Default (as defined
below) has occurred and is continuing, Funding Corp. can, on one or more
occasions, defer interest payments on the Series A QUIDS for up to 20
consecutive quarterly periods. If Funding Corp. defers interest payments on the
Series A QUIDS, the Trust will defer distributions on the Series A QUIPS during
any deferral period. However, distributions would still accumulate and such
deferred distributions would themselves accrue interest at the annual rate of
% per annum (to the extent permitted by law).
If Funding Corp. defers payments of interest on the Series A QUIDS, you will
be required to include interest income in gross income for United States
federal income tax purposes in the form of OID (based on your pro rata share of
the deferred interest on the Series A QUIDS held by the Trust) before you
receive any cash relating to your interest, even if you use the cash method of
accounting. In addition, you will not receive this cash if you sell the Series
A QUIPS before the end of any deferral period or before the Record Date (as
defined below) relating to distributions which are paid.
Funding Corp. has no current intention of deferring interest payments on the
Series A QUIDS. However, if Funding Corp. exercises its right in the future,
the Series A QUIPS may trade at a price that does not fully reflect the value
of accrued but unpaid interest on the Series A QUIDS. If you sell the Series A
QUIPS during an interest deferral period, you may not receive the same return
on investment as someone else who continues to hold the Series A QUIPS. In
addition, the existence of Funding Corp.'s right to defer payments of interest
on the Series A QUIDS may mean that the market price for the Series A QUIPS
(which represent an undivided beneficial interest in the Series A QUIDS) may be
more volatile than other securities that do not have these rights.
See "United States Federal Income Tax Considerations" for more information
regarding the tax consequences of purchasing, holding and selling the Series A
QUIPS.
Series A QUIPS May Be Redeemed at Any Time if Adverse Changes in Tax or
Investment Company Law Occur.
If adverse changes in tax or investment company law occur and are
continuing, and other conditions are satisfied, Funding Corp. has the right to
redeem the Series A QUIDS, in whole, but not in part, at any time. Any such
redemption will cause a mandatory redemption of all Series A QUIPS
S-6
<PAGE>
and Series A Common Securities at a redemption price equal to $25 per security
plus any accrued and unpaid distributions. See "Description of the Series A
QUIPS--Special Event Redemption or Distribution."
The Series A QUIDS, and therefore the Series A QUIPS, May Be Redeemed At the
Option of Funding Corp.
At the option of Funding Corp., the Series A QUIDS may be redeemed, in
whole, at any time, or in part, from time to time, on or after , 2004 at a
redemption price equal to the principal amount to be redeemed plus any accrued
and unpaid interest to the date of redemption. See "Description of the Series A
QUIDS--Redemption." You should assume that Funding Corp. will exercise its
redemption option if Funding Corp. is able to refinance at a lower interest
rate or it is otherwise in the interest of Funding Corp. to redeem the Series A
QUIDS. If the Series A QUIDS are redeemed, the Trust must redeem the Series A
Trust Securities having an aggregate liquidation amount equal to the aggregate
principal amount of Series A QUIDS to be redeemed. See "Description of the
Series A QUIPS--Redemption."
There Can Be No Assurance as to the Market Prices for the Series A QUIPS or the
Series A QUIDS.
There can be no assurance as to the market prices for the Series A QUIPS or
the Series A QUIDS that may be distributed in exchange for Series A QUIPS upon
a termination of the Trust. Accordingly, the Series A QUIPS that an investor
may purchase, whether pursuant to the offer made by this Prospectus Supplement
or in the secondary market, or the Series A QUIDS that a holder of Series A
QUIPS may receive upon a termination of the Trust, may trade at a discount to
the price that the investor paid to purchase the Series A QUIPS offered by this
Prospectus Supplement. As a result of Funding Corp.'s right to defer interest
payments on the Series A QUIDS, the market price of the Series A QUIPS (which
represent undivided beneficial ownership interests in the Trust, substantially
all the assets of which consist of the Series A QUIDS) may be more volatile
than the market prices of other securities that are not subject to such
optional deferrals.
Funding Corp. May Terminate the Trust at Any Time.
Funding Corp. has the right to terminate the Trust at any time. If Funding
Corp. decides to exercise its right to terminate the Trust, the Trust will
liquidate by distributing the Series A QUIDS to holders of the Series A QUIPS
and the Series A Common Securities on a pro rata basis.
Under current United States federal income tax law, a distribution of Series
A QUIDS to you on the dissolution of the Trust should not be a taxable event to
you.
Funding Corp. has no current intention of causing the termination of the
Trust and the distribution of the Series A QUIDS. Funding Corp. anticipates
that it would consider exercising this right in the event that expenses
associated with maintaining the Trust were substantially greater than currently
expected such as if specific changes in tax law or investment company law
occurred. See "Description of the Series A QUIPS--Special Event Redemption or
Distribution." Funding Corp. cannot predict the other circumstances under which
this right would be exercised.
Although Funding Corp. intends to use its best efforts to list the Series A
QUIDS on the New York Stock Exchange (or any other exchange on which the Series
A QUIPS are then listed) if they are distributed, we cannot assure you that the
Series A QUIDS will be approved for listing or that a trading market will exist
for those securities.
S-7
<PAGE>
You Have Limited Voting Rights.
You will have limited voting rights. In particular, subject to specific
exceptions, only Funding Corp. can appoint or remove any of the Securities
Trustees. See "Description of the Series A QUIPS--Voting Rights."
FPC CAPITAL I
The Trust is a statutory business trust created under Delaware law pursuant
to the filing of a certificate of trust with the Secretary of State of the
State of Delaware on March 22, 1999. The Trust's business is defined in a trust
agreement, executed by Funding Corp., as Depositor, and First Chicago Delaware
Inc., as the Delaware Trustee thereunder. This trust agreement will be amended
and restated in its entirety on the Issue Date (as amended and restated, the
"Trust Agreement"). The Trust Agreement has been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). The Trust exists for the
exclusive purposes of (1) issuing the Series A Trust Securities representing
undivided, beneficial interests in the assets of the Trust, (2) investing the
gross proceeds of the Series A Trust Securities in the Series A QUIDS, and (3)
engaging in only those other activities necessary, appropriate, convenient or
incidental thereto. The Trust has a term of approximately 41 years, but may
terminate earlier as provided in the Trust Agreement.
Upon issuance of the Series A QUIPS, the purchasers thereof will own all of
the Series A QUIPS. Funding Corp. will acquire all of the Series A Common
Securities, which will have an aggregate liquidation amount equal to
approximately 3% of the total capital of the Trust. The Series A Common
Securities will rank equally, and payments will be made thereon pro rata, with
the Series A QUIPS, except that upon the occurrence and continuance of a Junior
Subordinated Indenture Event of Default (as defined below), the rights of the
holders of Series A Common Securities to payment in respect of distributions
and payments upon liquidation, redemption and otherwise will be subordinated to
the rights of the holders of the Series A QUIPS.
The Trust's business and affairs will be conducted by the Securities
Trustees, which will be appointed by Funding Corp. as the holder of the Series
A Common Securities. A direct or indirect, wholly owned subsidiary of Florida
Progress initially will serve as Administrative Trustee. The First National
Bank of Chicago will serve as Property Trustee and will hold legal title to the
Series A QUIDS issued by Funding Corp. on behalf of the Trust and the holders
of the Series A Trust Securities. First Chicago Delaware Inc. will serve as
Delaware Trustee. In specific circumstances, the holders of a majority in
liquidation amount of the Series A QUIPS will be entitled to appoint a
substitute Property Trustee. See "Description of the Series A QUIPS--Voting
Rights."
The Property Trustee will hold legal title to the Series A QUIDS for the
benefit of the Trust and the holders of the Series A Trust Securities and will
have the power to exercise all rights, powers and privileges under the Junior
Subordinated Indenture as the holder of the Series A QUIDS. The Property
Trustee will make payments of distributions and payments on liquidation,
redemption and otherwise to the holders of the Series A Trust Securities.
Subject to the right of the holders of the Series A QUIPS to appoint a
substitute Property Trustee in specific instances, Funding Corp., as the holder
of all the Series A Common Securities, will have the right to appoint, remove
or replace all the Securities Trustees.
The Series A QUIDS and the Series A QUIDS Guarantee will constitute
substantially all of the assets of the Trust. Other assets that may constitute
"Trust Property" (as that term is defined in the Trust Agreement) include any
cash on deposit in, or owing to, the payment account as established under the
Trust Agreement, as well as any other property or assets held by the Property
Trustee pursuant to the Trust Agreement. In addition, the Trust may, from time
to time, receive cash pursuant to the Agreement as to Expenses and Liabilities
between Florida Progress and the Trust.
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<PAGE>
The rights of the holders of the Series A QUIPS, including economic rights,
rights to information and voting rights, are as set forth in the Trust
Agreement, the Delaware Business Trust Act and the 1939 Act. See "Description
of the Series A QUIPS."
The Trust's office and principal place of business shall be 300 Delaware
Avenue, Suite 319, Wilmington, Delaware 19801, and the telephone number is
(302) 427-5821.
ACCOUNTING TREATMENT
For financial reporting purposes, the Trust will be treated as a subsidiary
of Florida Progress and, accordingly, the accounts of the Trust will be
included in the consolidated financial statements of Florida Progress. The
Series A QUIPS will be presented as a separate line item in the consolidated
balance sheet of Florida Progress, and appropriate disclosures concerning the
Series A QUIPS, the Series A QUIPS Guarantee, the Series A QUIDS and the Series
A QUIDS Guarantee will be included in the notes to the consolidated financial
statements. For financial reporting purposes, Florida Progress will record
distributions payable on the Series A QUIPS as an expense.
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<PAGE>
SELECTED CONSOLIDATED FINANCIAL INFORMATION OF FLORIDA PROGRESS
The following summary is qualified in its entirety by, and should be read in
conjunction with, the more detailed information contained elsewhere in this
Prospectus Supplement or the accompanying Prospectus or incorporated herein by
reference.
<TABLE>
<CAPTION>
Year Ended December 31,
-----------------------------------
1994 1995 1996 1997(1) 1998
------ ------ ------ ------- ------
(Millions, except per share data
and ratios)
<S> <C> <C> <C> <C> <C>
Operating Revenues........................ $2,725 $3,008 $3,158 $3,316 $3,620
Consolidated Net Income................... 212 239 224 54 282
Earnings per Share of Common Stock........ $ 2.28 $ 2.50 $ 2.32 $ 0.56 $ 2.90
Ratio of Earnings to Fixed Charges (2).... 3.25 3.61 3.74 1.72 3.16
Ratio of Earnings to Fixed Charges Plus
Preferred Dividend Requirements
(Pre-Income Tax Basis) (3)............... 2.95 3.28 3.52 1.68 3.13
</TABLE>
<TABLE>
<CAPTION>
Capitalization as
of December 31,
1998
------------------
As
Actual Adjusted(4)
------ -----------
(Millions, except
percentages)
<S> <C> <C> <C>
Common Stock Equity....................................... $1,862 $1,862 %
Preferred Stock of Subsidiaries........................... 34 34
Subsidiary Obligated Mandatorily Redeemable Preferred
Securities............................................... 0
Long-Term Debt............................................ 2,250
Short-Term Debt, including current portion of long-term
debt of $145.9 million................................... 382
------ ------ ----
Total Capitalization...................................... $4,528 $ %
====== ====== ====
</TABLE>
- --------
(1) Operating results for 1997 were negatively impacted by the extended outage
of Florida Power Corporation's Crystal River nuclear plant and the
provision for loss on Florida Progress' investment in Mid-Continent Life
Insurance Company. These two events reduced Florida Progress' 1997 earnings
by $200 million, or $2.06 per share.
(2) For purposes of this ratio (A) earnings consists of income from continuing
operations before income taxes and fixed charges and (B) fixed charges
consist of all interest deductions and the interest component of rentals.
(3) For purposes of this ratio (A) earnings consist of income from continuing
operations before income taxes and fixed charges, (B) fixed charges consist
of all interest deductions and the interest component of rentals and (C)
preferred dividends represent an amount equal to the earnings which, on a
pre-tax basis, would be required to meet the dividends on preferred stock.
(4) Gives effect to the issuance of the Series A QUIPS offered hereby and the
use of proceeds as set forth under "Use of Proceeds," net of underwriting
commissions and other issuance expenses.
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<PAGE>
USE OF PROCEEDS
The Trust will invest all of the proceeds from the sale (which, assuming an
initial offering price equal to the liquidation amount, are estimated to be
approximately $ ) of Series A QUIPS in the Series A QUIDS. The proceeds from
such investment will be invested from time to time in debt instruments issued
by Florida Progress or its direct or indirect subsidiaries. These debt
instruments are expected to generate sufficient funds to enable Funding Corp.
to make payments when due under the Series A QUIDS. The net proceeds received
by Florida Progress or its direct and indirect operating subsidiaries will be
used in connection with the repayment of a portion of their outstanding short-
term bank loans and commercial paper and for other general corporate purposes.
A portion of the commercial paper to be repaid is classified as long-term debt
due to the duration of the underlying backup credit facilities. As of March 22,
1999, Florida Progress had on a consolidated basis $809.5 million of short-term
bank loans and commercial paper outstanding with a weighted average interest
rate of 4.90 percent.
DESCRIPTION OF THE SERIES A QUIPS
The Series A QUIPS will be issued pursuant to the terms of the Trust
Agreement. The Trust Agreement has been qualified as an indenture under the
1939 Act. The Property Trustee will act as the indenture trustee with respect
to the Trust, as well as the Series A QUIPS Guarantee, for purposes of
compliance with the provisions of the 1939 Act. The terms of the Series A QUIPS
will include those stated in the Trust Agreement, the Delaware Business Trust
Act, and those made part of the Trust Agreement by the 1939 Act. The following
summary of the principal terms and provisions of the Series A QUIPS does not
purport to be complete and is subject to, and qualified in its entirety by
reference to, the Trust Agreement, the form of which is filed as an exhibit to
the Registration Statement of which this Prospectus Supplement and the
accompanying Prospectus are a part, as well as the Delaware Business Trust Act
and the 1939 Act.
General
The Trust Agreement authorizes the Administrative Trustee, on behalf of the
Trust, to issue the Series A QUIPS, which represent preferred undivided
beneficial interests in the assets of the Trust, and the Series A Common
Securities, which represent common undivided beneficial interests in the assets
of the Trust. All of the Series A Common Securities will be owned by Funding
Corp. The Series A Common Securities rank equally, and payments will be made
thereon on a pro rata basis, with the Series A QUIPS, except that upon the
occurrence of a Junior Subordinated Indenture Event of Default (as defined
below), the rights of the holders of the Series A Common Securities to receive
payment of periodic distributions and payments upon liquidation, redemption and
otherwise will be subordinated to the rights of the holders of the Series A
QUIPS. The Trust Agreement does not permit the issuance by the Trust of any
securities other than the Series A Trust Securities or the incurrence of any
indebtedness by the Trust. Pursuant to the Trust Agreement, the Property
Trustee will own and hold the Series A QUIDS for the benefit of the Trust and
the holders of the Series A Trust Securities. The payment of distributions out
of money held by the Trust, and payments upon redemption of the Series A QUIPS
or liquidation of the Trust, are guaranteed by Florida Progress on a
subordinated basis as and to the extent described under "Description of the
QUIPS Guarantees" in the accompanying Prospectus. The Series A QUIPS Guarantee
does not cover payment of distributions on the Series A QUIPS when the Trust
does not have legally and immediately available funds sufficient to make such
distributions. In such event, the holders of Series A QUIPS must rely upon the
Property Trustee to enforce its rights under the Series A QUIDS or, if a Junior
Subordinated Indenture Event of Default (as defined below) has occurred and is
continuing and the Indenture Trustee fails or the holders of not less than 25%
of the Series A QUIDS fail to declare the principal of all of the Series A
QUIDS to be immediately due and payable, the holders of at least 25% in
Liquidation Amount of the Series A QUIPS then outstanding have the right by
notice in writing to Funding Corp., Florida Progress and the Indenture Trustee
to declare such principal immediately due
S-11
<PAGE>
legal proceeding directly against Funding Corp. or Florida Progress, without
first instituting a legal proceeding against the Property Trustee or any other
person or entity, for enforcement of payment to such holder of principal of or
interest on the Series A QUIDS having a principal amount equal to the aggregate
stated liquidation amount of the Series A QUIPS of such holder on or after the
due dates specified in the Series A QUIDS. The above mechanisms and
obligations, together with Florida Progress's obligations under the Series A
QUIDS Guarantee and the Agreement as to Expenses and Liabilities, constitute a
full and unconditional guarantee by Florida Progress and Funding Corp. of
payments due on the Series A QUIPS. See "--Voting Rights" below.
Distributions
Distributions on the Series A QUIPS will be fixed at the Securities Rate and
will accrue from the Issue Date and, except in the event of an Extension Period
(as defined below), will be payable quarterly in arrears on March 31, June 30,
September 30 and December 31 of each year (each, a "Distribution Date")
commencing June 30, 1999. In the event that any date on which distributions are
to be made on the Series A QUIPS is not a Business Day (as defined below), then
payment of the distributions payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date. A "Business Day" is any day other than a Saturday or
Sunday, a day on which banks in New York City are authorized or obligated by
law or executive order to remain closed or a day on which the principal
corporate trust office of the Property Trustee or the Indenture Trustee is
closed for business.
Distributions payable on any Distribution Date will be payable to the
holders of record on the Record Date for such Distribution Date, which is the
Business Day immediately prior to the Distribution Date, or, if the Series A
QUIPS do not remain in book-entry only form, the fifteenth calendar day
preceding such Distribution Date. Subject to any applicable laws and
regulations and the provisions of the Trust Agreement, each such payment will
be made as described under "--Book-Entry Only Issuance--The Depository Trust
Company" below. The amount of distributions payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months.
So long as no Junior Subordinated Indenture Event of Default (as defined
below) has occurred and is continuing, Funding Corp. has the right under the
Junior Subordinated Indenture to defer payments of interest on the Series A
QUIDS by extending the interest payment period from time to time on the Series
A QUIDS (each, an "Extension Period") which, if exercised, would defer
quarterly distributions on the Series A QUIPS during any such extended interest
payment period. Deferred installments of interest on the Series A QUIDS will
bear interest, compounded quarterly, at a rate per annum equal to the
Securities Rate to the extent permitted by applicable law. If distributions are
deferred, the deferred distributions and accrued interest thereon shall be
paid, if funds are legally available therefor, to holders of record of the
Series A QUIPS as they appear on the books and records of the Trust on the
Record Date next following the termination of such Extension Period. See
"Description of the Series A QUIDS--Interest" and "--Option to Extend Interest
Payment Period."
Distributions on the Series A QUIPS must be paid on the Distribution Dates
to the extent that the Trust has funds legally and immediately available for
the payment of such distributions. The Trust's funds available for distribution
to the holders of the Series A QUIPS will be limited to payments received under
the Series A QUIDS. See "Description of the Series A QUIDS."
Redemption
The Series A QUIPS are subject to mandatory redemption upon repayment of the
Series A QUIDS at maturity or their earlier redemption. The Series A QUIDS will
mature on , 2039
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<PAGE>
and may be redeemed, in whole or in part, without premium, from time to time,
at the option of Funding Corp., at any time on or after , 2004 or at any
time in whole, but not in part, upon the occurrence of a Special Event (as
defined below). Upon the repayment of the Series A QUIDS, whether at maturity
or upon redemption, the proceeds from such repayment or payment shall
simultaneously be applied to redeem a like amount of Series A Trust Securities
upon not less than 30 nor more than 60 days' notice, at the Redemption Price
(as defined below). See "Description of the Series A QUIDS--Optional
Redemption."
The Series A QUIPS to be redeemed will be selected on a pro-rata basis
(based upon Liquidation Amounts) not more than 60 days prior to the redemption
date by such method as the Property Trustee deems fair and appropriate and
which may provide for the selection for redemption of portions (equal to $25 or
integral multiples thereof) of the aggregate liquidation amount of Series A
QUIPS of a denomination larger than $25.
The "Redemption Price" for each Series A QUIPS will equal the stated
liquidation amount of $25, plus accrued and unpaid distributions thereon to the
date of payment.
Special Event Redemption or Distribution
Upon the occurrence of a Special Event at any time, Funding Corp. will have
the option to redeem the Series A QUIDS in whole (and thus cause the redemption
of the Series A QUIPS in whole). A Special Event is either an Investment
Company Act Event or a Tax Event.
An "Investment Company Act Event" means that the Trust has received an
opinion of counsel experienced in such matters (which may be counsel to Florida
Progress or Funding Corp.) to the effect that, as a result of a change in law
or regulation or a written change in the interpretation or application of law
or regulation by any legislative body, court, governmental agency or regulatory
authority after the Issue Date, there is more than an insubstantial risk that
the Trust is or will be considered an "investment company" under the Investment
Company Act of 1940, as amended (the "1940 Act").
"Tax Event" means that the Trust has received an opinion from counsel
experienced in such matters (which may be counsel to Funding Corp.) to the
effect that, as a result of (1) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein, or (2) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement or decision is announced on or after the Issue
Date, there is more than an insubstantial risk that (A) the Trust is, or will
within 90 days of the date of such opinion be, subject to United States federal
income tax with respect to income received or accrued on the Series A QUIDS,
(B) interest payable by Funding Corp. on the Series A QUIDS is not, or will
within 90 days of the date of such opinion not be, deductible by Funding Corp.,
in whole or in part, for United States federal income tax purposes, or (C) the
Trust is, or will within 90 days of the date of such opinion be, subject to
more than a de minimis amount of other taxes, duties or other governmental
charges.
Exchange of Series A QUIDS for Series A QUIPS
Funding Corp. will have the right at any time to terminate the Trust and,
after satisfaction of liabilities to creditors of the Trust, if any, cause the
Series A QUIDS to be distributed to the holders of the Series A QUIPS in
liquidation of the Trust. See "--Liquidation Distribution Upon Dissolution"
below. This right is optional and wholly within the discretion of Funding Corp.
Circumstances under which Funding Corp. may determine to exercise this right
could include the occurrence of an Investment Company Act Event or a Tax Event,
adverse tax consequences to Florida Progress,
S-13
<PAGE>
Funding Corp. or the Trust that are not within the definition of a Tax Event
because they do not result from an amendment, change, pronouncement or decision
described in such definition, and changes in the accounting requirements
applicable to the Series A QUIPS as described under "Accounting Treatment."
If Series A QUIDS are distributed to the holders of the Series A QUIPS,
Funding Corp. will use its best efforts to have the Series A QUIDS listed on
the NYSE or on such other exchange as the Series A QUIPS are then listed. After
the date for any distribution of Series A QUIDS upon termination of the Trust,
(1) the Series A QUIPS and the Series A QUIPS Guarantee will no longer be
deemed to be outstanding, (2) certificates representing Series A QUIDS having
an aggregate principal amount equal to the aggregate stated liquidation amount
of the Series A Trust Securities will be issued to the holders of certificates
representing Series A Trust Securities upon surrender of such certificates for
exchange, (3) any certificates representing Series A QUIPS and the Series A
QUIPS Guarantee not so surrendered for exchange will be deemed to represent
Series A QUIDS until such certificates are presented to Funding Corp. or its
agent for transfer or reissuance and (4) all rights of holders of Series A
Trust Securities will cease, except the right of such holders to receive Series
A QUIDS upon surrender of their Series A Trust Securities certificates.
There can be no assurance as to the market prices for the Series A QUIPS or
the Series A QUIDS that may be distributed in exchange for the Series A QUIPS
if a termination and liquidation of the Trust were to occur. Accordingly, the
Series A QUIPS that an investor may purchase, or the Series A QUIDS that the
investor may receive on termination and liquidation of the Trust, may trade at
a discount to the price that the investor paid to purchase the Series A QUIPS
offered hereby.
Redemption Procedures
In the event that fewer than all of the Series A Trust Securities are to be
redeemed, then the aggregate liquidation amount of the Series A Trust
Securities to be redeemed will be allocated 97% to the Series A QUIPS and 3% to
the Series A Common Securities.
The Series A QUIPS redeemed on each redemption date shall be redeemed at the
applicable Redemption Price with the proceeds from the contemporaneous
redemption of the Series A QUIDS. The Redemption Price of Series A QUIPS will
be deemed payable on each redemption date only to the extent that the Trust has
funds legally and immediately available for payment of such Redemption Price.
If the Property Trustee gives a notice of redemption in respect of Series A
QUIPS (which notice will be irrevocable), then, by 2:00 P.M., New York City
time, on the redemption date, subject to the immediately preceding paragraph,
the Property Trustee will irrevocably deposit with the securities depositary,
so long as the Series A QUIPS are in book-entry only form, sufficient funds to
pay the applicable Redemption Price and will give the securities depositary
irrevocable instructions to pay the applicable Redemption Price. See "--Book-
Entry Only Issuance--The Depository Trust Company" below. If the Series A QUIPS
are not in book-entry only form, the Property Trustee, subject to the
immediately preceding paragraph, will irrevocably deposit with the Paying Agent
funds sufficient to pay the applicable Redemption Price and will give the
Paying Agent irrevocable instructions to pay the Redemption Price to the
holders of the Series A QUIPS upon surrender of their Series A QUIPS
certificates. If notice of redemption has been given and funds deposited as
required, then on the date of such deposit, all rights of holders of Series A
QUIPS called for redemption will cease, except the right of the holders of
these Series A QUIPS to receive the applicable Redemption Price and any
Distribution payable on or prior to the redemption date, but without interest
on such Redemption Price. If any date fixed for redemption of Series A QUIPS is
not a Business Day, then payment of the Redemption Price payable on such date
will be made on the next succeeding day which is a
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<PAGE>
Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day. In the event
that payment of the Redemption Price in respect of Series A QUIPS is improperly
withheld or refused and not paid either by the Trust or by Florida Progress
pursuant to the Series A QUIPS Guarantee or the Series A QUIDS Guarantee,
distributions on such Series A QUIPS will continue to accrue at the then
applicable rate, from such redemption date originally established by the Trust
for such Series A QUIPS to the date such Redemption Price is actually paid. See
"--Events of Default" below, "Relationship Among the Series A QUIPS, the Series
A QUIDS, the Series A QUIPS Guarantee and the Series A QUIDS Guarantee" herein
and "Description of the QUIDS Guarantees" and "Description of the QUIPS
Guarantees--Events of Default" in the accompanying Prospectus.
Subject to the foregoing and to applicable law (including, without
limitation, United States federal securities laws), Florida Progress, Funding
Corp. or any of their affiliates may, at any time and from time to time,
purchase outstanding Series A QUIPS by tender, in the open market or by private
agreement.
Book-Entry Only Issuance--The Depository Trust Company
The Depository Trust Company ("DTC") will act as the initial securities
depositary for the Series A QUIPS. The Series A QUIPS will be issued only as
fully registered securities registered in the name of Cede & Co., DTC's
nominee. One or more fully registered global Series A QUIPS certificates will
be issued, representing in the aggregate the total number of Series A QUIPS,
and will be deposited with DTC.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934, as amended. DTC holds securities that its participants
("Participants") deposit with DTC. DTC also facilitates the settlement among
Participants of securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry changes in
Participants' accounts, thereby eliminating the need for physical movement of
securities certificates. Direct Participants include securities brokers and
dealers, banks, trust companies, clearing corporations and other organizations
("Direct Participants"). DTC is owned by a number of its Direct Participants
and by the New York Stock Exchange, the American Stock Exchange, Inc., and the
National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others 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").
The rules applicable to DTC and its Participants are on file with the
Securities and Exchange Commission.
Purchases of Series A QUIPS within the DTC system must be made by or through
Direct Participants, which will receive a credit for the Series A QUIPS on
DTC's records. The ownership interest of each actual purchaser of Series A
QUIPS ("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchases, but Beneficial Owners are expected to receive
written confirmations providing details of the transactions, as well as
periodic statements of their holdings, from the Direct or Indirect Participants
through which the Beneficial Owners purchased Series A QUIPS. Transfers of
ownership interests in the Series A QUIPS are to be accomplished by entries
made on the books of Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in Series A QUIPS, except in the event that use of the book-entry
system for the Series A QUIPS is discontinued.
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<PAGE>
DTC has no knowledge of the actual Beneficial Owners of the Series A QUIPS.
DTC's records reflect only the identity of the Direct Participants to whose
accounts such Series A QUIPS are credited, which may or may not be the
Beneficial Owners. The Participants will remain responsible for keeping account
of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Redemption notices will be sent to DTC.
Although voting with respect to the Series A QUIPS is limited, in those
cases where a vote is required, neither DTC nor Cede & Co. will itself consent
or vote with respect to the Series A QUIPS. Under its usual procedures, DTC
would mail an Omnibus Proxy to the Trust as soon as possible after the record
date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to
those Direct Participants to whose accounts the Series A QUIPS are credited on
the record date (identified in a listing attached to the Omnibus Proxy).
Distribution payments on the Series A QUIPS will be made to DTC. DTC's
practice is to credit Direct Participants' accounts on the relevant payment
date in accordance with their respective holdings shown on DTC's records unless
DTC has reason to believe that it will not receive payments on such payment
date. Payments by Participants to Beneficial Owners will be governed by
standing instructions and customary practices, as is the case with securities
held for the account of customers registered in "street name," and will be the
responsibility of such Participant and not of DTC, the Trust, any trustee,
Funding Corp. or Florida Progress, subject to any statutory or regulatory
requirements as may be in effect from time to time. Payment of distributions to
DTC is the responsibility of the Trust, disbursement of such payments to Direct
Participants is the responsibility of DTC, and disbursement of such payments to
the Beneficial Owners is the responsibility of Direct and Indirect
Participants.
Except as provided herein, a Beneficial Owner in a global Series A QUIPS
will not be entitled to receive physical delivery of Series A QUIPS.
Accordingly, each Beneficial Owner must rely on the procedures of DTC to
exercise any rights under the Series A QUIPS. The laws of some jurisdictions
require that purchasers of securities take physical delivery of securities in
definitive form. These laws may impair the ability to transfer beneficial
interests in a global Series A QUIPS.
DTC may discontinue providing its services as securities depositary with
respect to the Series A QUIPS at any time by giving at least 90 days' prior
written notice to the Trust. If this happens, and a successor securities
depositary is not obtained, Series A QUIPS certificates will be printed and
delivered to the holders of record. Additionally, Funding Corp. may decide to
discontinue use of the system of book-entry transfers through DTC (or a
successor depositary) with respect to the Series A QUIPS. In that event,
certificates for the Series A QUIPS will be printed and delivered to the
holders of record.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that Florida Progress, Funding Corp. and the
Trust believe to be reliable, but Florida Progress, Funding Corp. and the Trust
take no responsibility for the accuracy of these sources. The Trust has no
responsibility for the performance by DTC or its Participants of their
respective obligations as described herein or under the rules and procedures
governing their respective operations.
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<PAGE>
Liquidation Distribution Upon Dissolution
Pursuant to the Trust Agreement, the Trust will terminate on December 31,
2040 or earlier upon (1) the occurrence of a Bankruptcy Event (as defined in
the Trust Agreement) in respect of Funding Corp., dissolution or liquidation of
Funding Corp. or entry of an order for dissolution of the Trust by a court of
competent jurisdiction; (2) the delivery of written direction to the Property
Trustee by Funding Corp., at any time (which direction is optional and wholly
within the discretion of Funding Corp.) to terminate the Trust and distribute
the Series A QUIDS to the holders of the Series A Trust Securities in
liquidation of the Trust (see "--Special Event Redemption or Distribution"
above); or (3) the payment at maturity or redemption of all of the Series A
QUIDS, and the consequent payment of the Series A Trust Securities.
If the Trust terminates on December 31, 2040 or an early termination occurs
as described in clause (1) or (2) above, the Trust will be liquidated, and the
Property Trustee will distribute to each holder of Series A Trust Securities a
like amount of Series A QUIDS, unless such distribution is determined by the
Property Trustee not to be practical, in which event such holders will be
entitled to receive, out of the assets of the Trust available for distribution
to holders after satisfaction of liabilities to creditors, an amount equal to
the aggregate of the stated liquidation preference of $25 per Series A Trust
Security, plus accumulated and unpaid distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"). If the Liquidation
Distribution can be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Liquidation Distribution, then subject
to the next succeeding sentence, the amounts payable directly by the Trust on
the Series A Trust Securities will be paid on a pro rata basis. The holder of
the Series A Common Securities will be entitled to receive distributions upon
any such dissolution pro rata with the holders of the Series A QUIPS, except
that if a Junior Subordinated Indenture Event of Default has occurred and is
continuing, the holders of Series A QUIPS will have a priority over the holders
of Series A Common Securities.
Events of Default
Any one of the following events constitutes an "Event of Default" under the
Trust Agreement (each, a "Trust Agreement Event of Default") with respect to
the Series A Trust Securities issued thereunder (whatever the reason for such
Event of Default, and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(1) the occurrence of an "Event of Default" as defined in the Junior
Subordinated Indenture (each, a "Junior Subordinated Indenture Event of
Default") (see "Description of the QUIDS--Events of Default" in the
accompanying Prospectus); or
(2) default by the Trust in the payment of any distribution when it
becomes due and payable, and the continuation of such default for a period
of 30 days; or
(3) default by the Trust in the payment of any Redemption Price of any
Series A Trust Security when it becomes due and payable; or
(4) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Securities Trustees in the Trust Agreement
(other than a covenant or warranty a default in the performance of which or
the breach of which is dealt with in clause (2) or (3) above), and
continuation of such default or breach for a period of 90 days after there
has been given, by registered or certified mail, to such Securities
Trustees by the holders of at least 25% in aggregate liquidation preference
of the outstanding Series A QUIPS a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" under the Trust Agreement; or
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(5) the occurrence of events of bankruptcy or insolvency with respect to
the Property Trustee and the failure by Funding Corp. to appoint a
successor Property Trustee within 60 days thereof.
Within 90 days after the occurrence of any Trust Agreement Event of Default
actually known to the Property Trustee, the Property Trustee must transmit
notice of such Event of Default to the holders of Series A Trust Securities,
Funding Corp. and the Administrative Trustee, unless such Trust Agreement Event
of Default shall have been cured or waived.
If a Junior Subordinated Indenture Event of Default occurs and is continuing
and the Indenture Trustee fails or the holders of not less than 25% in
principal amount of the outstanding Series A QUIDS fail to declare the
principal of all of the Series A QUIDS to be immediately due and payable, the
holders of at least 25% in Liquidation Amount of the Series A QUIPS then
outstanding will have the right by notice in writing to Funding Corp., Florida
Progress and the Indenture Trustee to declare such principal immediately due
and payable. Notwithstanding the foregoing, a holder of Series A QUIPS may
institute a legal proceeding directly against Florida Progress or Funding
Corp., without first instituting a legal proceeding against the Property
Trustee or any other person or entity, for enforcement of payment to such
holder of principal of or interest on the Series A QUIDS having a principal
amount equal to the aggregate stated liquidation amount of the Series A QUIPS
of such holder on or after the due dates specified in the Series A QUIDS. See
"Relationship Among the Series A QUIPS, the Series A QUIDS, the Series A QUIPS
Guarantee and the Series A QUIDS Guarantee" herein and "Description of the
QUIPS Guarantees--Events of Default" in the accompanying Prospectus.
Unless a Junior Subordinated Indenture Event of Default shall have occurred
and be continuing, the Securities Trustees may be removed at any time by act of
the holder of the Series A Common Securities. If a Junior Subordinated
Indenture Event of Default has occurred and is continuing, any Securities
Trustee may be removed at such time by act of the holders of a majority in
liquidation amount of the Series A QUIPS, delivered to the appropriate
Securities Trustee (in its individual capacity and on behalf of the Trust). No
resignation or removal of any Securities Trustee and no appointment of a
successor will be effective until the acceptance of appointment by the
successor Trustee in accordance with the requirements of the Trust Agreement.
If a Junior Subordinated Indenture Event of Default has occurred and is
continuing, the holders of Series A QUIPS will have a priority over the holders
of Series A Common Securities upon dissolution of the Trust as described above.
See "--Liquidation Distribution Upon Dissolution."
Voting Rights
Except as provided below and under "Description of the QUIPS Guarantees--
Amendments and Assignment" in the accompanying Prospectus and as otherwise
required by law and the Trust Agreement, the holders of the Series A QUIPS will
have no voting rights.
If any proposed amendment to the Trust Agreement provides for, or the
Securities Trustees otherwise propose to effect, (1) any action that would
adversely affect in any material respect the powers, preferences or special
rights of the Series A QUIPS, whether by way of amendment to the Trust
Agreement or otherwise, or (2) the dissolution, winding-up or termination of
the Trust, other than pursuant to the Trust Agreement, then the holders of
outstanding Series A QUIPS will be entitled to vote as a class on such
amendment or proposal, and such amendment or proposal shall not be effective
except with the approval of the holders of at least a majority in liquidation
amount of such outstanding Series A QUIPS.
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So long as any Series A QUIDS are held by the Property Trustee, the
Securities Trustees shall not (1) direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee (as
defined herein), or executing any trust or power conferred on the Indenture
Trustee with respect to the Series A QUIDS, (2) waive any past default which is
waivable under the applicable provisions of the Junior Subordinated Indenture,
(3) exercise any right to rescind or annul a declaration that the principal of
all Series A QUIDS shall be due and payable, or (4) consent to any amendment,
modification or termination of the Junior Subordinated Indenture or the Series
A QUIDS, where such consent shall be required, without, in each case, obtaining
the prior approval of the holders of a majority in liquidation amount of the
outstanding Series A QUIPS; provided, however, that where a consent under the
Junior Subordinated Indenture would require the consent of each holder of
Series A QUIDS affected thereby, no such consent shall be given by the Property
Trustee without the prior consent of each holder of Series A QUIPS. The
Securities Trustees may not revoke any action previously authorized or approved
by a vote of the holders of the Series A QUIPS, except pursuant to a subsequent
vote of such holders. The Property Trustee must notify all holders of the
Series A QUIPS of any notice of default received from the Indenture Trustee
with respect to the Series A QUIDS. In addition to obtaining the foregoing
approvals of the holders of the Series A QUIPS, prior to taking any of the
foregoing actions, the Securities Trustees must obtain an opinion of counsel
experienced in such matters to the effect that the Trust will not be classified
as other than a grantor trust for federal income tax purposes on account of
such action.
Any required approval of holders of QUIPS may be given at a separate meeting
of holders of QUIPS convened for such purpose or pursuant to written consent.
The Administrative Trustee will cause a notice of any meeting at which holders
of QUIPS are entitled to vote to be given to each holder of record of QUIPS in
the manner set forth in the Trust Agreement.
Notwithstanding that holders of Series A QUIPS are entitled to vote or
consent under any of the circumstances described above, any of the Series A
QUIPS that are owned by Funding Corp., the Securities Trustees or any affiliate
of Funding Corp. or any Securities Trustee, will, for purposes of such vote or
consent, be treated as if they were not outstanding.
Co-Property Trustees and Separate Property Trustee
At any time or times, for the purpose of meeting the legal requirements of
the 1939 Act or of any jurisdiction in which any part of the Trust Property (as
defined in the Trust Agreement) may at the time be located, the holder of the
Series A Common Securities and the Administrative Trustee will have power to
appoint, and upon the written request of the Administrative Trustee, Funding
Corp., must for such purpose join with the Administrative Trustee in the
execution, delivery and performance of all instruments and agreements necessary
or proper to appoint one or more persons approved by the Property Trustee
either to act as co-property trustee, jointly with the Property Trustee, of all
or any part of such Trust Property, or to the extent required by law, to act as
separate trustee of any such property, in either case with such powers as may
be provided in the instrument of appointment, and to vest in such person or
persons in such capacity, any property, title, right or power deemed necessary
or desirable, subject to the provisions of the Trust Agreement. If Funding
Corp. does not join in such appointment within 15 days after the receipt by it
of a request so to do, or in case a Junior Subordinated Indenture Event of
Default has occurred and is continuing, the Property Trustee alone shall have
power to make such appointment.
Amendment of the Trust Agreement
The Trust Agreement may be amended from time to time by Funding Corp. and
the Securities Trustees without the consent of the holders of the Series A
Trust Securities (1) to cure any ambiguity, correct or supplement any provision
therein which may be inconsistent with any other
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provision therein, or to make any other provisions with respect to matters or
questions arising under the Trust Agreement, which shall not be inconsistent
with the other provisions of the Trust Agreement, provided that the amendment
does not adversely affect in any material respect the interests of any holder
of Series A Trust Securities, or (2) to modify, eliminate or add to any
provisions of the Trust Agreement to such extent as shall be necessary to
ensure that the Trust will not be classified as other than a grantor trust for
United States federal income tax purposes or to ensure that the Trust will not
be required to register as an "investment company" under the Investment Company
Act of 1940, as amended. Except as provided in the succeeding paragraph, other
amendments to the Trust Agreement may be made (A) upon approval of the holders
of a majority in aggregate liquidation amount of the Series A Trust Securities
then outstanding, and (B) upon receipt by the Securities Trustees of an opinion
of counsel to the effect that such amendment will not affect the Trust's status
as a grantor trust for United States federal income tax purposes or the Trust's
exemption from the 1940 Act.
Notwithstanding the foregoing, without the consent of each affected holder
of Series A Trust Securities, the Trust Agreement may not be amended to (1)
change the amount or timing of any distribution on the Series A Trust
Securities or otherwise adversely affect the amount of any distribution
required to be made in respect of the Series A Trust Securities as of a
specified date, (2) restrict the right of a holder of Series A Trust Securities
to institute suit for the enforcement of any such payment on or after such
date, or (3) change the consent required to amend the Trust Agreement.
Mergers, Consolidations or Amalgamations
The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described below. The Trust may at the request of Funding Corp., with the
consent of Florida Progress and the Administrative Trustee and without the
consent of the holders of the Series A Trust Securities, the Property Trustee
or the Delaware Trustee, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such under the laws of any
state; provided, that:
(1) such successor entity either (A) expressly assumes all of the
obligations of the Trust with respect to the Series A QUIPS, or (B)
substitutes for the Series A QUIPS other securities having substantially
the same terms as the Series A QUIPS (the "Successor Securities") so long
as the Successor Securities rank the same as the Series A QUIPS rank in
priority with respect to distributions and payments upon liquidation,
redemption and otherwise;
(2) Funding Corp. expressly appoints a trustee of such successor entity
possessing the same powers and duties as the Property Trustee as the holder
of the Series A QUIDS;
(3) the Successor Securities are listed or traded, or any Successor
Securities will be listed upon notification of issuance, on any national
securities exchange or other organization on which the Series A QUIPS are
then listed or traded;
(4) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the QUIPS (including any Successor
Securities) to be downgraded by any nationally recognized statistical
rating organization;
(5) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the holders of the Series A QUIPS (including any Successor
Securities) in any material respect;
(6) such successor entity has a purpose substantially identical to that
of the Trust;
(7) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, Funding Corp. has received an opinion of
counsel to the effect that (A) such merger,
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consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the
holders of the Series A QUIPS (including any Successor Securities) in any
material respect, and (B) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease neither the Trust
nor such successor entity will be required to register as an investment
company under the 1940 Act; and
(8) Funding Corp. owns all the Series A Common Securities of such
successor entity and Florida Progress guarantees the obligations of such
successor entity under the Successor Securities at least to the extent
provided by the Series A QUIPS Guarantee.
Notwithstanding the foregoing, the Trust may not, except with the consent of
holders of 100% in liquidation amount of the Series A QUIPS, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to any other entity or
permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Trust or the successor entity to
be classified as other than a grantor trust for United States federal income
tax purposes.
Any corporation or other body into which any of the Property Trustee or the
Delaware 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 any such Trustee must be a party, or any corporation
succeeding to all or substantially all the corporate trust business of such
Trustee, will be the successor of such Trustee under the Trust Agreement,
provided such corporation is otherwise qualified and eligible under the Trust
Agreement.
Payment and Paying Agent
So long as DTC is acting as securities depositary for the Series A QUIPS,
payments in respect of the Series A QUIPS in global form shall be made to DTC
in immediately available funds, which is to credit the relevant accounts at DTC
on the applicable Distribution Dates. If the Series A QUIPS are not held by
DTC, such payments shall be made by check mailed to the address of the holder
entitled thereto as such address shall appear on the Securities Register (as
such term is defined in the Trust Agreement). The Paying Agent will initially
be the Property Trustee. The Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Administrative Trustee, the
Property Trustee and Funding Corp. In such event, the Administrative Trustee
shall appoint a successor to act as Paying Agent.
Registrar and Transfer Agent
The Property Trustee will initially act as registrar and transfer agent (the
"Securities Registrar") for the Series A QUIPS.
Registration of transfers of Series A QUIPS will be effected without charge
by or on behalf of the Trust, but upon payment in respect of any tax or other
governmental charges which may be imposed in relation to it.
The Securities Registrar will not be required to register or cause to be
registered any transfer of Series A QUIPS after they have been called for
redemption.
Information Concerning the Property Trustee
The Property Trustee, prior to the occurrence of a Trust Agreement Event of
Default with respect to the Trust Securities, undertakes to perform only the
duties that are specifically set forth in the
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Trust Agreement and, after default, is required to exercise the same degree of
care as a prudent individual would exercise in the conduct of his or her own
affairs. Subject to these provisions, the Property Trustee is under no
obligation to exercise any of the powers vested in it by the Trust Agreement at
the request of any holder of Series A Trust Securities, unless offered
reasonable indemnity by such holder against the costs, expenses and liabilities
which might be incurred by the Property Trustee. The Property Trustee is not
required to expend or risk its own funds or otherwise incur any financial
liability in the performance of its duties under the Trust Agreement if the
Property Trustee reasonably believes that repayment or adequate indemnity is
not reasonably assured to it.
The First National Bank of Chicago, the Property Trustee, also serves as
Indenture Trustee and Guarantee Trustee. Florida Progress and certain of its
subsidiaries maintain deposit accounts and banking relationships with The First
National Bank of Chicago. The First National Bank of Chicago serves as trustee
under other indentures pursuant to which securities of subsidiaries of Florida
Progress are outstanding.
Governing Law
The Trust Agreement and the Trust Securities will be governed by, and
construed in accordance with, the internal laws of the State of Delaware.
Miscellaneous
The Administrative Trustee is authorized and directed to operate the Trust
so that the Trust will not be taxed as other than a grantor trust for United
States federal income tax purposes, so that the Trust will not be deemed to be
an "investment company" required to be registered under the 1940 Act and so
that the Series A QUIDS will be treated as indebtedness of Funding Corp. for
United States federal income tax purposes. In this connection, the
Administrative Trustee and Funding Corp. are authorized to take any action, not
inconsistent with applicable law, the Trust's certificate of trust or the Trust
Agreement, that the Administrative Trustee and Funding Corp. determine in their
discretion to be necessary or desirable for such purposes, as long as such
action does not materially and adversely affect the interests of the holders of
the Series A QUIPS.
DESCRIPTION OF THE SERIES A QUIDS
Set forth below is a description of the specific terms of the Series A
QUIDS. This description supplements, and should be read together with, the
description of the general terms and provisions of the QUIDS set forth in the
accompanying Prospectus under the caption "Description of the QUIDS." The
following description does not purport to be complete and is subject to, and is
qualified in its entirety by reference to, the description in the accompanying
Prospectus and the Junior Subordinated Indenture.
General
The Series A QUIDS will be issued as a series of QUIDS under the Junior
Subordinated Indenture. The Series A QUIDS will be limited in aggregate
principal amount to $ , such amount being the approximate aggregate
liquidation amount of the Series A Trust Securities.
The entire principal amount of the Series A QUIDS will mature and become due
and payable, together with any accrued and unpaid interest thereon, including
Additional Interest (see "Description of the QUIDS--Additional Interest" in the
accompanying Prospectus), if any, on , 2039. The Series A QUIDS are not
subject to any sinking fund provision.
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The terms of the Series A QUIDS correspond to those of the Series A QUIPS,
as described herein.
Optional Redemption
Funding Corp. will have the right to redeem the Series A QUIDS, in whole or
in part, without premium, from time to time, on or after , 2004 or at any
time in whole but not in part upon the occurrence of a Special Event as
described under "Description of the Series A QUIPS--Special Event Redemption or
Distribution" upon not less than 30 nor more than 60 days' notice, at a
Redemption Price equal to 100% of the principal amount to be redeemed plus any
accrued and unpaid interest, including Additional Interest, if any, to the
Redemption Date.
Interest
Each Series A QUIDS shall bear interest at the Securities Rate from the
Issue Date, payable quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year commencing June 30, 1999 to the person in whose name
such Series A QUIDS is registered on the Business Day immediately prior to such
payment date, or, if the Series A QUIDS are not in book-entry only form, the
fifteenth calendar date preceding such payment date. The amount of interest
payable will be computed on the basis of a 360-day year of twelve 30-day
months. If any date on which interest is payable on the Series A QUIDS is not a
Business Day, then payment of the interest payable on such date will be made on
the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date.
Option to Extend Interest Payment Period
So long as no Junior Subordinated Indenture Event of Default has occurred
and is continuing, Funding Corp. will have the right at any time, and from time
to time, to defer payments of interest on the Series A QUIDS by extending the
interest payment period for up to 20 consecutive quarters, but not beyond the
stated maturity date. At the end of an Extension Period, Funding Corp. will pay
all interest then accrued and unpaid (including any Additional Interest thereon
at the Securities Rate to the extent permitted by applicable law); provided,
that during any Extension Period, subject to the exceptions described under "--
Description of the QUIDS--Covenants" in the accompanying Prospectus, (1)
neither Florida Progress nor Funding Corp. may declare or pay any dividend or
distribution on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of its capital stock, or (2) make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities issued by it which rank equally with or junior to the Series A QUIDS
or the Series A QUIDS Guarantee or make any guarantee payments with respect to
any guarantee by it of debt securities of any of its subsidiaries if the
guarantee is equal to or junior in interest to the Series A QUIDS or the Series
A QUIDS Guarantee. Prior to the termination of any Extension Period, Funding
Corp. may further defer payments of interest by extending the interest payment
period, provided that such Extension Period, together with all such previous
and further extensions thereof, may not exceed 20 consecutive quarters or
extend beyond the stated maturity date. Upon the termination of any Extension
Period and the payment of all amounts then due, Funding Corp. may select a new
Extension Period, subject to the above requirements. Funding Corp. has no
present intention of exercising its rights to defer payments of interest by
extending the interest payment period on the Series A QUIDS. See "United States
Federal Income Tax Considerations--Original Issue Discount."
Funding Corp. must give the holder or holders of the Series A QUIDS and the
Indenture Trustee notice of its selection or extension of an Extension Period
at least one Business Day prior to the
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earlier of (1) the next succeeding date on which Distributions on the Series A
Trust Securities would be payable but for such deferral interest payment date
on which the Extension Period is to commence or relating to the interest
payment date on which an Extension Period that is being extended would
otherwise terminate, or (2) the date the Administrative Trustee is required to
give notice to any securities exchange or other applicable self-regulatory
organization or to the holders of the Series A QUIPS of the record date or the
date such distributions are payable, but in any event not less than one
Business Day prior to such record date.
Payment of Additional Sums
If a Tax Event has occurred and is continuing and Funding Corp. does not
elect to redeem the Series A QUIDS as described under "--Optional Redemption"
above, or liquidate the Trust, Funding Corp. will be required to pay additional
amounts, if necessary, to the holders of the Series A QUIDS so that,
notwithstanding any additional taxes, duties or charges imposed on the Trust
because of the Tax Event, the Trust will have sufficient funds to pay the full
amount of distributions due on the Series A QUIPS then outstanding.
Series A QUIDS Guarantee
Pursuant to the Junior Subordinated Indenture, Florida Progress will
irrevocably and unconditionally guarantee the Series A QUIDS as described under
"Description of the Series A QUIDS Guarantee."
Book-Entry and Issuance
If distributed to holders of Series A Trust Securities in connection with
the voluntary or involuntary dissolution, winding-up or liquidation of the
Trust, the Series A QUIDS are expected to be issued in the form of one or more
global certificates registered in the name of the securities depositary or its
nominee. In such event, the procedures applicable to the transfer and payment
of the Series A QUIDS are expected to be substantially similar to those
described with respect to the Series A QUIPS in "Description of the Series A
QUIPS--Book-Entry Only Issuance--The Depository Trust Company."
DESCRIPTION OF THE SERIES A QUIDS GUARANTEE
Pursuant to the Junior Subordinated Indenture, Florida Progress will
irrevocably and unconditionally guarantee the due and punctual payment of
principal, interest, and other amounts payable on the Series A QUIDS when and
as the same shall become due and payable, whether at maturity, upon redemption
or otherwise. The Series A QUIDS Guarantee will constitute an unsecured
obligation of Florida Progress and will rank subordinate and junior to all
Senior Debt that may be issued by Florida Progress. As of December 31, 1998,
Senior Debt of Florida Progress aggregated approximately $1.2 billion. Since
Florida Progress is a holding company, the right of Florida Progress and,
hence, the right of creditors of Florida Progress (including the holders of the
Series A QUIDS) to participate in any distribution of the assets of any
subsidiary of Florida Progress, whether upon liquidation, reorganization or
otherwise, is subject to prior claims of creditors of each such subsidiary.
RELATIONSHIP AMONG THE SERIES A QUIPS, THE SERIES A QUIDS,
THE SERIES A QUIPS GUARANTEE AND THE SERIES A QUIDS GUARANTEE
As long as payments of interest and other payments are made when due on the
Series A QUIDS, those payments will be sufficient to cover distributions and
payments due on the Series A
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Trust Securities primarily because (1) the aggregate principal amount of Series
A QUIDS will be equal to the sum of the aggregate stated liquidation amount of
the Series A Trust Securities; (2) the interest rate and interest and other
payment dates on the Series A QUIDS will match the distribution rate and
distribution and other payment dates for the Series A QUIPS; (3) Florida
Progress will pay for all costs and expenses of the Trust pursuant to the
Agreement as to Expenses and Liabilities; and (4) the Trust Agreement provides
that the Securities Trustees may not cause or permit the Trust to, among other
things, engage in any activity that is not consistent with the purposes of the
Trust.
Payments of distributions (to the extent funds therefor are legally and
immediately available) and other payments due on the Series A QUIPS (to the
extent funds therefor are legally and immediately available) are guaranteed by
Florida Progress as and to the extent set forth under "Description of the QUIPS
Guarantees" in the accompanying Prospectus. If Funding Corp. does not make
interest payments on the Series A QUIDS and Florida Progress does not make
payments pursuant to the Series A QUIDS Guarantee, it is not expected that the
Trust will have sufficient funds to pay distributions on the Series A QUIPS.
The Series A QUIPS Guarantee is a guarantee from the time of its issuance, but
does not apply to any payment of distributions unless and until the Trust has
sufficient funds legally and immediately available for the payment of such
distributions.
If a Junior Subordinated Indenture Event of Default occurs and is continuing
and the Indenture Trustee fails or the holders of not less than 25% in
principal amount of the outstanding Series A QUIDS fail to declare the
principal of all of the Series A QUIDS to be immediately due and payable, the
holders of at least 25% in Liquidation Amount of the Series A QUIPS then
outstanding will have the right by notice in writing to Funding Corp., Florida
Progress and the Indenture Trustee to declare such principal immediately due
and payable. Notwithstanding the foregoing, a holder of Series A QUIPS may
institute a legal proceeding directly against Florida Progress or Funding
Corp., without first instituting a legal proceeding against the Property
Trustee or any other person or entity, for enforcement of payment to such
holder of principal of or interest on the Series A QUIDS having a principal
amount equal to the aggregate stated liquidation amount of the Series A QUIPS
of such holder on or after the due dates specified in the Series A QUIDS.
If Florida Progress fails to make payments under the Series A QUIPS
Guarantee, the Series A QUIPS Guarantee provides a mechanism whereby the
holders of the Series A QUIPS may direct the Guarantee Trustee to enforce its
rights thereunder. In addition, any holder of Series A QUIPS may institute a
legal proceeding directly against Florida Progress to enforce its rights under
the Series A QUIPS Guarantee without first instituting a legal proceeding
against the Guarantee Trustee or any other person or entity.
The Series A QUIDS Guarantee, the Series A QUIPS Guarantee, the Junior
Subordinated Indenture, the Series A QUIDS, the Trust Agreement and the
Agreement as to Expenses and Liabilities, as described above, constitute a full
and unconditional guarantee by Florida Progress and Funding Corp. of the
payments due on the QUIPS.
Upon any voluntary or involuntary dissolution, winding-up or termination of
the Trust, unless the Series A QUIDS are distributed in connection therewith,
the holders of Series A QUIPS will be entitled to receive, out of assets
legally available for distribution to holders, the Liquidation Distribution in
cash. See "Description of the Series A QUIPS--Liquidation Distribution Upon
Dissolution." Upon any voluntary or involuntary liquidation or bankruptcy of
Funding Corp., the Property Trustee, as holder of the Series A QUIDS, would be
a subordinated creditor of Funding Corp., subordinated in right of payment to
all Senior Debt, but entitled to receive payment in full of principal and
interest before any stockholders of Funding Corp. receive payments or
distributions. Because Florida Progress is guarantor under the Series A QUIPS
Guarantee and the Series A QUIDS Guarantee and has agreed to pay for all costs,
expenses and liabilities of the Trust (other
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than the Trust's obligations to holders of the Series A QUIPS) pursuant to the
Agreement as to Expenses and Liabilities, the positions of a holder of Series A
QUIPS and a holder of Series A QUIDS relative to other creditors and to
stockholders of Florida Progress in the event of liquidation or bankruptcy of
Florida Progress would be substantially the same.
A default or event of default under any Senior Debt would not constitute a
default or Event of Default under the Junior Subordinated Indenture. However,
in the event of payment defaults under, or acceleration of, Senior Debt, the
subordination provisions of the Series A QUIDS provide that no payments may be
made in respect of the Series A QUIDS until such Senior Debt has been paid in
full or any payment default thereunder has been cured or waived. Failure to
make required payments on the Series A QUIDS would constitute an Event of
Default under the Junior Subordinated Indenture except that failure to make
interest payments on the Series A QUIDS will not be an Event of Default during
an Extension Period; provided, however, that any Extension Period may not
exceed 20 consecutive quarters or extend beyond the maturity of the Series A
QUIDS.
UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of the principal United States federal income tax
consequences of the ownership and disposition of the Series A QUIPS and
constitutes the opinion of Thelen Reid & Priest LLP, counsel to Florida
Progress, Funding Corp. and the Trust, insofar as it relates to matters of law
and legal conclusions. This summary deals only with Series A QUIPS held as
capital assets within the meaning of Section 1221 of the Internal Revenue Code
of 1986, as amended (the "Code"), by U.S. Holders (as defined below). Moreover,
it does not discuss all of the tax consequences that may be relevant to a U.S.
Holder in light of his particular circumstances or to U.S. Holders subject to
special rules, such as financial institutions, insurance companies, dealers in
securities or currencies, individual retirement and tax deferred accounts,
persons who engage in a straddle or a hedge or a conversion transaction
relating to a Series A QUIPS or U.S. Holders whose "functional currency" is not
the U.S. dollar. In addition, this discussion does not address the tax
consequences to U.S. Holders who purchase Series A QUIPS other than pursuant to
their initial issuance and distribution, and at their original issuance price.
Prospective investors should consult their own tax advisors with regard to the
application of the tax considerations discussed below to their particular
situations as well as the application of any state, local or other tax laws.
This summary is based on the Code, existing and proposed regulations
promulgated thereunder, and applicable judicial and administrative
determinations now in effect, all of which are subject to change at any time,
and any such changes may be retroactively applied in a manner that could
adversely affect U.S. Holders.
As used herein, the term "U.S. Holder" means a beneficial owner of a Series
A QUIPS that for United States federal income tax purposes is (1) an individual
citizen or resident of the United States, (2) a corporation, partnership or
other entity created or organized in or under the laws of the United States or
of any political subdivision thereof, (3) an estate the income of which is
subject to United States federal income taxation regardless of its source, or
(4) a trust if (a) a court within the United States is able to exercise primary
supervision over the administration of the trust and (b) one or more U.S.
persons have the authority to control all substantial decisions of the trust.
Treatment of the Trust and Series A QUIPS
Thelen Reid & Priest LLP is of the opinion that, under current law and
assuming full compliance with the instrument establishing the Trust (and
certain other documents), the Trust will be treated as a "grantor trust" and
not as an association taxable as a corporation for United States federal income
tax purposes. Each U.S. Holder will be treated as the beneficial owner of a pro
rata undivided
S-26
<PAGE>
interest in the Series A QUIDS and, consequently, will be required to include
in gross income the U.S. Holder's pro rata share of the entire income from the
Series A QUIDS.
Classification of the Series A QUIDS
Based on the opinion of Thelen Reid & Priest LLP, Funding Corp. believes and
intends to take the position that the Series A QUIDS will constitute
indebtedness for United States federal income tax purposes. No assurance can be
given that such position will not be challenged by the United States Internal
Revenue Service ("IRS") or, if challenged, that such challenge will not be
successful. By purchasing and accepting Series A QUIPS, each U.S. Holder
covenants to treat the Series A QUIDS as indebtedness and the Series A QUIPS as
evidence of an indirect beneficial ownership interest in the Series A QUIDS.
Payments of Interest
Except as set forth below, stated interest on a Series A QUIDS will
generally be taxable to a U.S. Holder as ordinary income at the time it is paid
or accrued in accordance with the U.S. Holder's own method of accounting.
Original Issue Discount
Under applicable U.S. federal income tax regulations, Florida Progress and
Funding Corp. believe that the Series A QUIDS will not be treated as issued
with OID. It should be noted that these regulations have not yet been addressed
in any rulings or other interpretations by the IRS. Accordingly, it is possible
that the IRS could take a position contrary to the interpretations described
herein.
The terms of the Series A QUIDS permit Funding Corp. to defer the payment of
interest on the Series A QUIDS at any time and from time to time by extending
the interest payment period for up to 20 consecutive quarters with respect to
each Extension Period; provided, however, that no Extension Period may extend
beyond the stated maturity date of the Series A QUIDS. Should Funding Corp.
exercise this option to defer payments of interest, the Series A QUIDS would at
that time be treated as having been reissued with OID and all the stated
interest payments on the Series A QUIDS would thereafter be treated as OID for
as long as the Series A QUIDS remained outstanding. As a result, all U.S.
Holders would, in effect, be required to accrue interest income as OID even if
such U.S. Holders are on a cash method of accounting, and actual distributions
of stated interest would not be included in taxable income. Consequently, in
the event that the payment of interest is deferred, a U.S. Holder could be
required to include OID in income on an economic accrual basis, notwithstanding
that Funding Corp. would not make any interest payments during such period on
the Series A QUIDS.
Because income on the Series A QUIPS will constitute interest or OID, no
amount included in the income of corporate U.S. Holders with respect to the
Series A QUIPS will be eligible for the dividends-received deduction.
Sale, Exchange or Redemption of Series A QUIPS
Upon the sale, retirement (including redemption) or other taxable
disposition of all or part of a Series A QUIPS, a U.S. Holder thereof will
recognize gain or loss equal to the difference between the amount realized on
such sale, retirement or other disposition and such U.S. Holder's adjusted tax
basis in the Series A QUIPS or part thereof. If the U.S. Holder disposes of a
Series A QUIPS prior to the occurrence of an Extension Period, any portion of
the amount received that is attributable to accrued interest will be treated as
interest income to the U.S. Holder and will not be treated as part
S-27
<PAGE>
of the amount realized for purposes of determining gain or loss on the
disposition of the Series A QUIPS. A U.S. Holder's adjusted tax basis in a
Series A QUIPS acquired by purchase will generally equal the cost of such
Series A QUIPS to the U.S. Holder. Upon the occurrence of an Extension Period,
a U.S. Holder's adjusted tax basis will be increased by the amount of any OID
included in taxable income by the U.S. Holder and reduced by the U.S. Holder's
pro rata share of any subsequent payments of interest on the Series A QUIDS.
The redemption of only part of a Series A QUIPS will require an allocation of
the U.S. Holder's adjusted tax basis in his pro rata share of the related
Series A QUIDS between the portion of the Series A QUIDS redeemed and retained
by the U.S. Holder in order to determine gain or loss.
Any recognized gain or loss will be capital gain or loss, and such capital
gain or loss will be long-term if the holding period for the Series A QUIPS is
more than one year at the time of sale, retirement or other disposition.
Generally, for non-corporate U.S. Holders, long-term capital gain is subject to
U.S. federal income tax at a maximum rate of 20%. Under current law, the
deductibility of capital losses is subject to limitations.
Receipt of Series A QUIDS or Cash Upon Liquidation of the Trust
As described under "Description of the Series A QUIPS--Special Event
Redemption or Distribution," Series A QUIDS may be distributed to U.S. Holders
in exchange for the Series A QUIPS and in liquidation of the Trust. Such a
distribution would be treated as a non-taxable event to each U.S. Holder and
each U.S. Holder would receive an aggregate tax basis in the U.S. Holder's
Series A QUIDS equal to the U.S. Holder's aggregate tax basis in its Series A
QUIPS. A U.S. Holder's holding period with respect to the Series A QUIDS so
received in liquidation of the Trust would include the period for which the
Series A QUIPS were held by such U.S. Holder.
As described under "Description of the Series A QUIPS--Special Event
Redemption or Distribution," the Series A QUIDS may be redeemed for cash and
the proceeds of such redemption distributed to U.S. Holders of Series A QUIPS
in redemption of the Series A QUIPS. Under current law, such a redemption
would, for United States federal income tax purposes, constitute a taxable
disposition of the Series A QUIPS, and a U.S. Holder would recognize gain or
loss as if such holder had sold such redeemed Series A QUIPS. See "--Sale,
Exchange or Redemption of Series A QUIPS."
Information Reporting and Backup Withholding
Subject to the qualification discussed below, income on the Series A QUIPS
will be reported to U.S. Holders on Form 1099, which form should be mailed to
U.S. Holders of Series A QUIPS by January 31 following each calendar year.
If required by law, the Trust will report annually to the holder of record
of the Series A QUIPS the interest income paid or OID accrued during the year
with respect to the Series A QUIDS. The Trust currently intends to report such
information on Form 1099 prior to January 31 following each calendar year.
Under current law, holders of record of Series A QUIPS who hold as nominees for
beneficial owners will not have any obligation to report information regarding
the beneficial owners to the Trust. The Trust, moreover, will not have any
obligation to report to beneficial owners who are not also record holders.
Thus, the beneficial owners of Series A QUIPS who hold their QUIPS through
nominee holders will typically receive Form 1099 reflecting the income on their
Series A QUIPS from such nominee holders rather than from the Trust.
Payment of the proceeds from the disposition of Series A QUIPS to or through
the U.S. office of a broker is subject to information reporting unless the U.S.
Holder establishes an exemption from information reporting.
S-28
<PAGE>
Payments made in respect of, and proceeds from the sale of, Series A QUIPS
(or Series A QUIDS distributed to U.S. Holders of Series A QUIPS) may be
subject to "backup withholding" tax at the rate of 31% if the U.S. Holder,
among other things, (1) fails to furnish his or her social security number or
other taxpayer identification number ("TIN") to the payor responsible for
backup withholding (for example, the U.S. Holder's securities broker), (2)
furnishes such payor an incorrect TIN, (3) fails to provide such payor with a
certified statement, signed under penalties of perjury, that the TIN provided
to the payor is correct and that the U.S. Holder is not subject to backup
withholding, or (4) fails to report properly interest and dividends on his tax
return. Backup withholding, however, does not apply to payments made to exempt
recipients, such as corporations and tax-exempt organizations. Any withheld
amounts generally will be allowed as a refund or a credit against the U.S.
Holder's United States federal income tax liability, provided the required
information is provided to the IRS.
The U.S. federal income tax discussions set forth above may not be
applicable to a holder, depending upon a holder's particular situation, and
therefore each holder should consult his or her tax advisor with respect to the
tax consequences of the ownership and disposition of Series A QUIPS, including
the tax consequences under state, local, foreign and other tax laws and the
possible effects of changes in U.S. federal or other tax law.
S-29
<PAGE>
UNDERWRITING
Subject to the terms and conditions set forth in an underwriting agreement
(the "Underwriting Agreement"), the Trust has agreed to sell to the
Underwriters named below, and the Underwriters, for whom Goldman, Sachs & Co.
and Salomon Smith Barney Inc. are acting as representatives (the
"Representatives"), have severally agreed to purchase the amount of Series A
QUIPS set forth opposite their respective names below. In the Underwriting
Agreement, the Underwriters have agreed, subject to the terms and conditions
set forth therein, to purchase all of the Series A QUIPS offered hereby if any
of the Series A QUIPS are purchased.
<TABLE>
<CAPTION>
Principal Amount of
Underwriters Series A QUIPS
------------ -------------------
<S> <C>
Goldman, Sachs & Co. ....................................
Salomon Smith Barney Inc. ...............................
----
Total..................................................
====
</TABLE>
----------------
Because the Trust will invest the proceeds from the sale of the Series A
QUIPS in the Series A QUIDS issued by Funding Corp., the Underwriting Agreement
provides that Florida Progress will pay an underwriting commission of $.7878
per Series A QUIPS (or $ for all Series A QUIPS) to the Underwriters, as
compensation; provided that, for sales of 10,000 or more Series A QUIPS to a
single purchaser, the commission will be $.50 per Series A QUIPS.
The Underwriters propose to offer the Series A QUIPS to the public initially
at the initial public offering price set forth on the cover page of this
Prospectus Supplement. Any Series A QUIPS sold by the Underwriters to
securities dealers may be sold at a discount of up to $ per Series A QUIPS
from the initial public offering price. Any of those securities dealers may
resell the Series A QUIPS they purchase from the Underwriters to other brokers
and dealers at a discount of up to $ per Series A QUIPS from the initial
public offering price. If all the Series A QUIPS are not sold at the initial
public offering price, the representatives may change the offering price and
other selling terms.
Florida Progress, Funding Corp. and the Trust have agreed with the
Underwriters, during the period of 15 days from the date of the Underwriting
Agreement, not to sell, offer to sell, grant any option for the sale of, or
otherwise dispose of any preferred securities, any security convertible into or
exchangeable into or exercisable for preferred securities or junior
subordinated notes or any debt securities substantially similar to the Series A
QUIDS or equity securities substantially similar to the Series A QUIPS (except
for the Series A QUIDS and the Series A QUIPS issued pursuant to the
Underwriting Agreement), without the prior written consent of Goldman, Sachs &
Co. and Salomon Smith Barney Inc.
Prior to this offering, there has been no public market for the Series A
QUIPS. Application will be made to list the Series A QUIPS on the New York
Stock Exchange. If approved, trading in the Series A QUIPS on the New York
Stock Exchange is expected to begin within the 30-day period after the initial
delivery of the Series A QUIPS.
The representatives of the Underwriters have advised Florida Progress,
Funding Corp. and the Trust that they intend to make a market in the Series A
QUIPS. However, the representatives are not
S-30
<PAGE>
obligated to do so and may discontinue market making at any time without
notice. No assurance is given as to the liquidity of the trading market for the
Series A QUIPS.
In connection with the offering, the Underwriters may purchase and sell the
Series A QUIPS in the open market. These transactions may include short sales,
stabilizing transactions and purchases to cover positions created by short
sales. Short sales involve the sale by the Underwriters of a greater amount of
Series A QUIPS than they are required to purchase in the offering. Stabilizing
transactions consist of bids or purchases made for the purpose of preventing or
retarding a decline in the market price of the Series A QUIPS while the
offering is in progress.
The Underwriters also may impose a penalty bid. This may occur when a
particular Underwriter repays to the Underwriters a portion of the underwriting
commissions because the Underwriters have repurchased Series A QUIPS sold by or
for the account of that Underwriter in stabilizing or short covering
transactions.
These activities by the Underwriters may stabilize, maintain or otherwise
affect the market price of the Series A QUIPS. As a result, the price of the
Series A QUIPS may be higher than the price that would otherwise prevail in the
open market. If these activities are commenced, they may be discontinued at any
time. These transactions may be effected on the New York Stock Exchange, in the
over-the-counter market or otherwise.
Florida Progress estimates that its expenses in connection with this
offering, excluding underwriting discounts and commissions, will be
approximately $ .
Florida Progress, Funding Corp. and the Trust have agreed to indemnify the
several Underwriters against specified liabilities, including liabilities under
the Securities Act of 1933, as amended, and to contribute to amounts paid by
the Underwriters if the indemnification provided is unavailable or
insufficient. The Underwriters will reimburse Florida Progress for specified
expenses.
Certain of the Underwriters or their affiliates have provided from time to
time, and expect to provide in the future, investment or commercial banking
services to Florida Progress and its affiliates, for which such Underwriters or
their affiliates have received or will receive customary fees and commissions.
LEGAL MATTERS
Matters of Delaware law relating to the validity of the Series A QUIPS will
be passed upon on behalf of Florida Progress, Funding Corp. and the Trust by
Richards, Layton & Finger P.A., Wilmington, Delaware, special Delaware counsel
to Funding Corp. and the Trust. The validity of the Series A QUIDS, the Series
A QUIPS Guarantee and the Series A QUIDS Guarantee and matters relating thereto
will be passed upon on behalf of Florida Progress and Funding Corp. by Kenneth
E. Armstrong, Vice President and General Counsel of Florida Progress. Thelen
Reid & Priest LLP, New York, New York will pass upon matters relating to United
States federal income tax considerations. Certain legal matters will be passed
upon for the Underwriters by Jones, Day, Reavis & Pogue, Chicago, Illinois.
S-31
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this preliminary prospectus is not complete and may be +
+changed. These securities may not be sold until the registration statement +
+filed with the Securities and Exchange Commission is effective. This +
+preliminary prospectus is not an offer to sell nor does it seek an offer to +
+buy these securities in any jurisdiction where the offer or sale is not +
+permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion. Dated March 24, 1999
PROSPECTUS
$300,000,000
Florida Progress Corporation
Florida Progress Funding Corporation
Junior Subordinated Deferrable Interest Notes (QUIDSSM)
-----------
FPC Capital I
FPC Capital II
Cumulative Quarterly Income Preferred Securities (QUIPSSM)
Fully and Unconditionally Guaranteed, as Described Herein, by
Florida Progress Corporation
-----------
Florida Progress Funding Corporation, a wholly owned subsidiary of Florida
Progress Corporation, may from time to time issue its QUIDS in one or more
series.
FPC Capital I and FPC Capital II may from time to time issue QUIPS
representing preferred, undivided beneficial interests in the assets of FPC
Capital I or FPC Capital II, as the case may be.
Specific terms of the QUIDS and the QUIPS in respect of which this Prospectus
is being delivered will be set forth in an accompanying Prospectus Supplement.
Florida Progress Funding Corporation may issue the QUIDS and FPC Capital I
and FPC Capital II may issue the QUIPS at an aggregate initial public offering
price not to exceed $300,000,000.
-----------
Neither the Securities and Exchange Commission nor any other regulatory body
has approved or disapproved these securities or passed upon the accuracy or
adequacy of this prospectus. Any representation to the contrary is a criminal
offense.
-----------
Florida Progress Funding Corporation may sell the QUIDS and FPC Capital I and
FPC Capital II may sell the QUIPS to or through underwriters and also to other
purchasers or through agents. Goldman, Sachs & Co. and Salomon Smith Barney
Inc. may be two of such underwriters. The names of the underwriters will be set
forth in an accompanying Prospectus Supplement.
-----------
Prospectus Dated , 1999
<PAGE>
WHERE YOU CAN GET MORE INFORMATION
Florida Progress Corporation (the "Company" or "Florida Progress"), Florida
Progress Funding Corporation ("Funding Corp.") and FPC Capital I and FPC
Capital II (together, the "Trusts") have filed with the Securities and Exchange
Commission a combined registration statement on Form S-3 (the "Registration
Statement," which term encompasses any amendments thereof and exhibits thereto)
under the Securities Act of 1933, as amended (the "1933 Act"). As permitted by
the rules and regulations of the Securities and Exchange Commission, this
Prospectus does not contain all of the information set forth in the
Registration Statement and the exhibits and schedules thereto, to which
reference is hereby made.
Florida Progress is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission. Such reports, proxy statements and other
information may be inspected and copied at the public reference facilities
maintained by the Securities and Exchange Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, telephone (800) SEC-0330, and at the
Securities and Exchange Commission's regional offices at 7 World Trade Center,
13th Floor, Suite 1300, New York, New York 10048 and Suite 1400, Citicorp
Center, 500 West Madison Street, Chicago, Illinois 60661. Copies of such
material may also be obtained at prescribed rates by writing to the Public
Reference Section of the Securities and Exchange Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549. The Securities and Exchange Commission
maintains a Web site that contains reports, proxy and information statements
and other information regarding registrants including Florida Progress that
file electronically at http://www.sec.gov. In addition, reports and other
material concerning Florida Progress may be inspected at the offices of the New
York Stock Exchange, 20 Broad Street, New York, New York 10005, on which
Exchange the common stock of Florida Progress is listed.
No separate financial statements of Funding Corp. or any Trust have been
included herein. Florida Progress, Funding Corp. and the Trusts do not consider
that such financial statements would be material to holders of Funding Corp.'s
Junior Subordinated Deferrable Interest Notes (the "QUIDS") or the Trusts'
Common Securities or Cumulative Quarterly Income Preferred Securities (the
"QUIPS" and, collectively with the QUIDS, the "Securities") because each of
Funding Corp. and each Trust is a special purpose entity, has no operating
history or independent operations and is not engaged in and does not propose to
engage in any activity other than, in the case of Funding Corp., obtaining
financing for Florida Progress and direct and indirect subsidiaries of Florida
Progress (as described herein) and, in the case of each Trust, holding as trust
assets QUIDS, issuing Common Securities and the QUIPS (collectively, the "Trust
Securities") and engaging in other activities as are necessary, appropriate,
convenient or incidental thereto. See "Florida Progress Funding Corp.,"
"Description of the QUIPS," "Description of the QUIDS," "Description of the
QUIDS Guarantees" and "Description of the QUIPS Guarantees." In addition,
Florida Progress does not expect that Funding Corp. or any Trust will file
reports, proxy statements and other information under the 1934 Act with the
Securities and Exchange Commission.
INCORPORATION OF DOCUMENTS BY REFERENCE
Florida Progress's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, has been filed by Florida Progress with the Securities and
Exchange Commission pursuant to the 1934 Act and is incorporated herein by
reference and made a part of this Prospectus.
All documents filed by Florida Progress with the Securities and Exchange
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act
subsequent to the date of this Prospectus and prior to the termination of this
offering will be deemed to be incorporated herein by reference and
2
<PAGE>
made a part of this Prospectus from the respective dates of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein will be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded will not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
Florida Progress will provide without charge to each person to whom this
Prospectus is delivered, on the written or oral request of any such person, a
copy of any or all documents incorporated herein by reference (other than the
exhibits to such documents unless such exhibits are specifically incorporated
by reference). Requests should be directed to Investor Services, Florida
Progress Corporation, One Progress Plaza, St. Petersburg, Florida 33701,
telephone: (800) 937-2640.
FLORIDA PROGRESS CORPORATION
Florida Progress Corporation is a diversified electric utility holding
company headquartered in St. Petersburg, Florida and was incorporated in
Florida on January 21, 1982. The Company's primary subsidiary is Florida Power
Corporation ("Florida Power"). Florida Power was incorporated in Florida in
1899 and is an operating utility engaged in the generation, purchase,
transmission, distribution and sale of electricity primarily within the State
of Florida. Florida Power's service area covers about 20,000 square miles in
central and northern Florida and along the west coast of the state and includes
St. Petersburg and Clearwater as well as the areas surrounding Walt Disney
World, Orlando, Ocala and Tallahassee.
The Company's diversified operations are owned directly or indirectly
through Progress Capital Holdings, Inc. ("PCH"), a Florida corporation and
wholly owned subsidiary of the Company that was incorporated in 1988. PCH holds
the capital stock of, and provides funding for, the Company's diversified
subsidiaries. Its principal subsidiary is Electric Fuels Corporation ("Electric
Fuels"). Formed in 1976, Electric Fuels' principal business segments are Energy
and Related Services, Rail Services, and Inland Marine Transportation. Energy
and Related Services includes coal operations, river terminal services, and
off-shore marine transportation. Rail Services operations include railcar
repair, rail parts reconditioning and sales, railcar leasing and sales,
manufacturing and supplying rail and track material, and metal recycling.
Inland Marine provides transportation of coal, agricultural and other dry-bulk
commodities, as well as fleet management services.
The Company has its principal offices at One Progress Plaza, St. Petersburg,
Florida 33701, and its telephone number is (727) 824-6400.
FLORIDA PROGRESS FUNDING CORPORATION
Funding Corp. was established to obtain financing for Florida Progress and
direct and indirect subsidiaries or affiliates of Florida Progress. Funding
Corp. does not and will not engage in business activities other than such
financing.
Funding Corp. was incorporated under the laws of Delaware on March 18, 1999,
and is a wholly owned subsidiary of Florida Progress. The principal executive
offices of Funding Corp. are located at 300 Delaware Avenue, Suite 319,
Wilmington, Delaware 19801, and the telephone number is (302) 427-5821.
3
<PAGE>
THE TRUSTS
Each Trust is a statutory business trust created under Delaware law pursuant
to the filing of a certificate of trust with the Secretary of State of the
State of Delaware on March 22, 1999. Each Trust's business is defined in a
trust agreement, executed by Funding Corp., as Depositor, and the Delaware
Trustee thereunder. This trust agreement of each Trust will be amended and
restated in its entirety substantially in the form filed as an exhibit to the
Registration Statement of which this Prospectus forms a part (each, a "Trust
Agreement"). The Trust Agreement will be qualified as an indenture under the
Trust Indenture Act of 1939, as amended (the "1939 Act"). Each Trust exists for
the exclusive purposes of (1) issuing its Trust Securities representing
undivided, beneficial interests in the assets of such Trust, (2) investing the
gross proceeds of the Trust Securities in a related series of QUIDS, and (3)
engaging in only those other activities necessary, appropriate, convenient or
incidental thereto.
Each Trust's business and affairs will be conducted by its trustees, which
shall be appointed by Funding Corp. as the holder of the Common Securities of
such Trust, a direct or indirect, wholly owned subsidiary of Florida Progress
as Administrative Trustee, The First National Bank of Chicago as Property
Trustee, and First Chicago Delaware Inc. as Delaware Trustee. The Property
Trustee of each Trust will act as the indenture trustee with respect to such
Trust for purposes of compliance with the provisions of the 1939 Act.
The principal place of business of each Trust shall be 300 Delaware Avenue,
Suite 319, Wilmington, Delaware 19801, telephone (302) 427-5821.
Reference is made to the Prospectus Supplement relating to the QUIPS of a
Trust for further information concerning such Trust.
ACCOUNTING TREATMENT OF THE TRUSTS
For financial reporting purposes, each Trust will be treated as a subsidiary
of Florida Progress and, accordingly, the accounts of each Trust will be
included in the consolidated financial statements of Florida Progress. The
QUIPS will be presented as a separate line item in the consolidated balance
sheet of Florida Progress, and appropriate disclosures concerning the QUIPS,
each QUIPS Guarantee, the QUIDS and the QUIDS Guarantees will be included in
the notes to the consolidated financial statements. For financial reporting
purposes, Florida Progress will record distributions payable on the QUIPS as an
expense.
RATIOS
The following table sets forth the Ratios of Earnings to Fixed Charges and
Earnings to Fixed Charges Plus Preferred Dividend Requirements (Pre-Income Tax
Basis) for Florida Progress for the periods indicated.
<TABLE>
<CAPTION>
Year Ended December 31,
------------------------
1994 1995 1996 1997 1998
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges(1)................. 3.25 3.61 3.74 1.72 3.16
Ratio of Earnings to Fixed Charges Plus Preferred
Dividend Requirements (Pre-Income Tax Basis)(2)...... 2.95 3.28 3.52 1.68 3.13
</TABLE>
- --------
(1) For purposes of this ratio (A) earnings consists of income from continuing
operations before income taxes and fixed charges and (B) fixed charges
consist of all interest deductions and the interest component of rentals.
4
<PAGE>
(2) For purposes of this ratio (A) earnings consist of income from continuing
operations before income taxes and fixed charges, (B) fixed charges consist
of all interest deductions and the interest component of rentals and (C)
preferred dividends represent an amount equal to the earnings which, on a
pre-tax basis, would be required to meet the dividends on preferred stock.
USE OF PROCEEDS
Each Trust will invest the proceeds received from the sale of its QUIPS in
QUIDS of Funding Corp. The proceeds from such investment will be invested by
Funding Corp. from time to time in debt instruments issued by Florida Progress
or its direct and indirect subsidiaries or affiliates. These debt instruments
are expected to generate sufficient funds to enable Funding Corp. to make
payments when due under the QUIDS. Except as may be otherwise described in an
applicable Prospectus Supplement, the net proceeds received by Florida Progress
and its direct and indirect subsidiaries from such investment will be used in
connection with the repayment of a portion of their outstanding short-term bank
loans and commercial paper and for other general corporate purposes. A portion
of the commercial paper to be repaid is classified as long-term debt due to the
duration of the underlying backup credit facilities. As of March 22, 1999,
Florida Progress had on a consolidated basis $809.5 million of short-term bank
loans and commercial paper outstanding with a weighted average interest rate of
4.90 percent.
DESCRIPTION OF THE QUIDS
Set forth below is a description of the general terms of the QUIDS. The
following description does not purport to be complete and is subject to, and is
qualified in its entirety by reference to, the Junior Subordinated Indenture to
be entered into among Florida Progress, as guarantor, Funding Corp. and The
First National Bank of Chicago, as trustee (the "Indenture Trustee"), as to be
supplemented by a supplemental indenture thereto establishing the QUIDS of each
series (the Junior Subordinated Indenture, as so supplemented from time to
time, is hereinafter referred to as the "Junior Subordinated Indenture"), the
forms of which are filed as exhibits to the Registration Statement of which
this Prospectus forms a part. The terms of the QUIDS will include those stated
in the Junior Subordinated Indenture and those made a part of the Junior
Subordinated Indenture by reference to the 1939 Act. Some capitalized terms
used herein are defined in the Junior Subordinated Indenture.
General
The QUIDS will be issued as unsecured junior subordinated debt securities
under the Junior Subordinated Indenture. The Junior Subordinated Indenture does
not limit the aggregate principal amount of QUIDS that may be issued thereunder
and provides that QUIDS may be issued from time to time in one or more series
pursuant to an indenture supplemental to the Junior Subordinated Indenture.
Reference is made to the Prospectus Supplement that will accompany this
Prospectus for the following terms of the series of QUIDS being offered
thereby: (1) the title of such QUIDS; (2) any limit on the aggregate principal
amount of such QUIDS; (3) the date or dates on which the principal of such
QUIDS is payable; (4) the rate or rates at which such QUIDS shall bear interest
and Additional Interest (as defined below), if any, the interest payment dates
on which such interest shall be payable, the right of Funding Corp. to defer or
extend such interest payments dates, and the regular record date for the
interest payable on any interest payment date or the method by which any of the
foregoing will be determined; (5) the place or places where the principal of
(and premium, if any) and interest on such QUIDS shall be payable; (6) the
period or periods within which, the price or prices at which and the terms and
conditions on which such QUIDS may be redeemed, in whole or in part, at the
option of Funding Corp.; (7) the obligation or right, if any, of Funding Corp.
to redeem, repay or purchase such QUIDS; (8) the denominations in which such
QUIDS may be issued, if other than denominations of $25 and any integral
multiple thereof; (9) if other than the
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principal amount thereof, the portion of the principal amount of such QUIDS
which shall be payable upon declaration of acceleration of the maturity
thereof; (10) any deletions from, modifications of or additions to the Events
of Default (as defined below) or covenants of Funding Corp. or Florida Progress
as provided in the Junior Subordinated Indenture pertaining to such QUIDS; (11)
whether such QUIDS shall initially be issued in whole or in part in the form of
a Global Security (as defined in the Junior Subordinated Indenture); and (12)
any other terms of such QUIDS. The terms of each series of QUIDS issued to a
Trust will correspond to those of the related QUIPS of such Trust as described
in the Prospectus Supplement relating to such QUIPS.
The Junior Subordinated Indenture does not contain provisions that afford
holders of QUIDS protection in the event of a highly leveraged transaction
involving Florida Progress or Funding Corp.
Subordination
The QUIDS are subordinated and junior in right of payment to all Senior Debt
(as defined below) of Funding Corp. No payment of principal of, or premium, if
any, or interest on (including Additional Interest (as defined below)) the
QUIDS may be made if (1) a default has occurred and is continuing in the
payment of principal of (or premium, if any) or interest on any Senior Debt of
Funding Corp. or (2) if any event of default with respect to Senior Debt of
Funding Corp. has occurred and is continuing and has resulted in Senior Debt
becoming or being declared due and payable prior to the date on which it would
otherwise have become due and payable, unless and until such event of default
shall have been cured or waived or shall have ceased to exist and acceleration
shall have been rescinded or annulled, or (3) any judicial proceeding is
pending with respect to any such default in payment or such event of default.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization or other judicial proceeding relative to Funding
Corp., the holders of Senior Debt of Funding Corp. shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Debt before the holders of the QUIDS are entitled to receive or retain
any payment or distribution. Subject to the prior payment of all Senior Debt,
the rights of the holders of the QUIDS will be subrogated to the rights of the
holders of Senior Debt to receive payments and distributions applicable to such
Senior Debt until all amounts owing on the QUIDS are paid in full. Funding
Corp. currently has no Senior Debt outstanding but could issue such Senior Debt
in the future.
The term "Senior Debt" means, with respect to any person, the principal of
(and premium if any) and interest, if any (including interest accruing on or
after the filing of any petition in bankruptcy or for reorganization relating
to such person, whether or not such claim for post-petition interest is allowed
in such proceeding), on Debt of such person, whether incurred on or prior to
the date of the Junior Subordinated Indenture or thereafter incurred, unless,
in the instrument creating or evidencing the same or pursuant to which the same
is outstanding, it is provided that such obligations are not superior in right
of payment to the QUIDS (in the case of Funding Corp.) or the QUIDS Guarantees
(in the case of Florida Progress) or to other Debt which ranks equally with, or
subordinated to, the QUIDS (in the case of Funding Corp.) or the QUIDS
Guarantees (in the case of Florida Progress); provided, however, that Senior
Debt shall not be deemed to include (1) any Debt of such person which, when
incurred and without respect to any election under Section 1111(b) of the
Bankruptcy Reform Act of 1978, was without recourse to such person, (2) any
Debt of such person to its direct and indirect subsidiaries, (3) Debt to any
employee of such person and (4) with respect to Funding Corp., any QUIDS and,
with respect to Florida Progress, any QUIDS Guarantees.
The term "Debt" means, with respect to any person, whether recourse is to
all or a portion of the assets of such person and whether or not contingent,
(1) every obligation of such person for money borrowed; (2) every obligation of
such person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (3) every reimbursement obligation of such person with
respect to letters of credit,
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bankers' acceptances or similar facilities issued for the account of such
person; (4) every obligation of such person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business); (5) every
capital lease obligation of such person; (6) all indebtedness of such person,
whether incurred on or prior to the date of the Junior Subordinated Indenture
or thereafter incurred, for claims in respect of derivative products, including
interest rate, foreign exchange rate and commodity forward contracts, options
and swaps and similar arrangements; and (7) every obligation of the type
referred to in clauses (1) through (6) of another person and all dividends and
operating lease payments of another person the payment of which, in either
case, such person has guaranteed or is responsible or liable for, directly or
indirectly, as obligor or otherwise.
Additional Interest
"Additional Interest" is defined in the Junior Subordinated Indenture as the
interest, if any, that shall accrue on any interest on the Debt Securities of
any series the payment of which has not been made on the applicable Interest
Payment Date (as defined in the Junior Subordinated Indenture) and which shall
accrue at the rate per annum specified or determined as specified in such
QUIDS.
QUIDS Guarantee
Pursuant to the Junior Subordinated Indenture, Florida Progress will
irrevocably and unconditionally guarantee the QUIDS as described under
"Description of the QUIDS Guarantees."
Covenants
Each of Florida Progress and Funding Corp. covenant in the Junior
Subordinated Indenture, for the benefit of the holders of each series of QUIDS,
that, (1) if at such time Funding Corp. shall have given notice of its election
to extend an interest payment period for such series of QUIDS and such
extension shall be continuing, (2) if at such time Funding Corp. or Florida
Progress have actual knowledge that Florida Progress shall be in default with
respect to its payment or other obligations under (A) the QUIPS Guarantee with
respect to the Trust Securities, if any, related to such series of QUIDS or (B)
the QUIDS Guarantee, if any, related to such series of QUIDS, or (3) if at such
time an Event of Default thereunder with respect to such series of QUIDS shall
have occurred and be continuing, neither Florida Progress nor Funding Corp.
shall (a) declare or pay any dividend or make any distributions with respect
to, or redeem, purchase, acquire or make a liquidation payment with respect to,
any of its capital stock, or (b) make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities issued
by it which rank equally with or junior to the QUIDS or the QUIDS Guarantee or
make any guarantee payments with respect to any guarantee by it of debt
securities of any subsidiary thereof if the guarantee is equal to or junior in
interest to the QUIDS or the QUIDS Guarantee other than (1) dividends or
distributions in common stock, (2) any declaration of a dividend in connection
with implementation of any stockholders' rights plan, or the issuance of
rights, stock or other property under any such plan, or the redemption,
repurchase or other acquisition of any such rights pursuant thereto, (3)
payments under any QUIPS Guarantee, or (4) purchases of common stock in
connection with any of its benefit plans.
The Junior Subordinated Indenture further provides that, for so long as the
Trust Securities of any Trust remain outstanding, Funding Corp. covenants (1)
to directly or indirectly maintain 100% ownership of the Common Securities of
such Trust; provided, however, that any permitted successor of Funding Corp.
under the Junior Subordinated Indenture may succeed to Funding Corp.'s
ownership of such Common Securities, and (2) to use its reasonable efforts to
cause such Trust (a) to remain a statutory business trust, except in connection
with the distribution of QUIDS to the holders of Trust Securities in
liquidation of such Trust, or certain mergers, consolidations or
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amalgamations permitted by the related Trust Agreement, and (b) to otherwise
continue to be classified as a grantor trust for United States federal income
tax purposes.
Satisfaction and Discharge
The Junior Subordinated Indenture will cease to be of further effect and
Funding Corp. will be deemed to have satisfied and discharged all of its
obligations under the Junior Subordinated Indenture when (1) all outstanding
QUIDS have become due and payable, or will become due and payable within one
year, by reason of their maturity or a redemption date, and (2) Funding Corp.
deposits with the Indenture Trustee, in trust, funds that are sufficient to
pay and discharge all remaining indebtedness on the outstanding QUIDS;
provided, however, that Funding Corp. will remain obligated to pay all other
amounts due under the Junior Subordinated Indenture and to perform certain
ministerial tasks as described in the Junior Subordinated Indenture.
Unless otherwise provided in a supplemental indenture setting forth the
terms of a series of QUIDS, Funding Corp. will be deemed to have paid and
discharged the entire indebtedness on all of the outstanding QUIDS of such
series when (1) Funding Corp. or Florida Progress deposits with the Indenture
Trustee, in trust, funds that are sufficient to pay and discharge all
remaining indebtedness on the outstanding QUIDS of such series to the Stated
Maturity or any Redemption Date, (2) Funding Corp. or Florida Progress has
paid all other sums payable with respect to the outstanding QUIDS of such
series, and (3) Funding Corp. or Florida Progress has satisfied certain other
requirements intended to ensure that such payment and discharge will not have
any adverse U.S. federal income tax consequences to holders of QUIPS.
Events of Default
The Junior Subordinated Indenture provides that any one or more of the
following described events with respect to the QUIDS of any series, which has
occurred and is continuing, constitutes an "Event of Default" with respect to
the QUIDS of such series:
(a) failure of Funding Corp. or Florida Progress for 30 days to pay
interest on the QUIDS of such series, including any Additional Interest in
respect thereof, when due and payable; provided, however, that a valid
extension of the interest payment period by Funding Corp. shall not
constitute a default in the payment of interest for this purpose; or
(b) failure of Funding Corp. or Florida Progress to pay principal or
premium, if any, on the QUIDS of such series when due at maturity; or
(c) default in the performance of, or breach in any material respect of,
any covenant or warranties of Funding Corp. or Florida Progress in the
Junior Subordinated Indenture (other than a covenant or warranty which has
expressly been dealt with in clauses (a), (b) or (d)) for 90 days after
written notice to Funding Corp. from the Indenture Trustee or to Funding
Corp. and the Indenture Trustee from the holders of at least 25% in
principal amount of the outstanding QUIDS of such series; or
(d) events of bankruptcy, insolvency, or reorganization of Florida
Progress or Funding Corp.
The holders of not less than a majority in aggregate outstanding principal
amount of the QUIDS of any series have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Indenture Trustee with respect to the QUIDS of such series, subject to certain
limitations. If a Junior Subordinated Indenture Event of Default (other than
pursuant to clause (d) above) occurs and is continuing with respect to the
QUIDS of any series, then the Indenture Trustee or the holders of not less
than 25% in aggregate outstanding principal amount of the QUIDS of such series
may declare the principal amount thereof due and payable immediately by notice
in writing to Funding Corp. (and to the Indenture Trustee if given by the
holders), and upon any such
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declaration such principal amount shall become immediately due and payable. If
a Junior Subordinated Indenture Event of Default pursuant to clause (d) above
occurs and is continuing with respect to the QUIDS of any series, the principal
amount of all QUIDS of that series will automatically become immediately due
and payable. At any time after such a declaration of acceleration with respect
to the QUIDS of any series has been made and before a judgment or decree for
payment of the money due has been obtained as provided in Article Five of the
Junior Subordinated Indenture, the holders of not less than a majority in
aggregate outstanding principal amount of the QUIDS of such series may rescind
and annul such declaration and its consequences if the default has been cured
or waived and Florida Progress or Funding Corp. has paid or deposited with the
Indenture Trustee a sum sufficient to pay all matured installments of interest
(including any Additional Interest) and principal due otherwise than by
acceleration and all sums paid or advanced by the Indenture Trustee, including
reasonable compensation and expenses of the Indenture Trustee.
A holder of QUIPS may institute a legal proceeding directly against Florida
Progress and Funding Corp., without first instituting a legal proceeding
against the Property Trustee or any other person or entity, for enforcement of
payment to such holder of principal of or interest on the QUIDS of the related
series having a principal amount equal to the aggregate stated liquidation
amount of the QUIPS of such holder on or after the due dates specified in the
QUIDS of such series.
The holders of not less than a majority in aggregate outstanding principal
amount of the QUIDS of any series may, on behalf of the holders of all the
QUIDS of such series, waive any past default with respect to such series,
except (1) a default in the payment of principal or interest, or (2) a default
in respect of a covenant or provision which under Article Nine of the Junior
Subordinated Indenture cannot be modified or amended thereunder without the
consent of the holder of each outstanding QUIDS of such series affected
thereby.
Registration and Transfer
Neither Funding Corp. nor Florida Progress shall be required to (1) issue,
transfer or exchange QUIDS of any series during a period of 15 days immediately
preceding the date notice is given identifying the QUIDS of such series called
for redemption, or (2) transfer or exchange any QUIDS so selected for
redemption, in whole or in part, except the unredeemed portion of any QUIDS
being redeemed in part.
Payment and Paying Agent
Payment of principal of any QUIDS will be made only against surrender to the
Paying Agent of such QUIDS. Principal of and interest on QUIDS will be payable,
subject to any applicable laws and regulations, at the office of such Paying
Agent or Paying Agents as Funding Corp. may designate from time to time, except
that, at the option of Funding Corp., payment of any interest may be made by
wire transfer or by check mailed to the address of the person entitled thereto
as such address shall appear in the Security Register with respect to the
QUIDS. Payment of interest on QUIDS on any interest payment date will be made
to the person in whose name the QUIDS (or predecessor security) are registered
at the close of business on the Record Date for such interest payment.
The Indenture Trustee will act as Paying Agent with respect to the QUIDS.
Funding Corp. may at any time designate additional Paying Agents or rescind the
designation of any Paying Agents or approve a change in the office through
which any Paying Agent acts.
All monies paid by Funding Corp. to a Paying Agent for the payment of the
principal of or interest on the QUIDS of any series which remain unclaimed at
the end of two years after such principal or interest shall have become due and
payable will be repaid to Funding Corp., and the holder of such QUIDS will
thereafter look only to Funding Corp. for payment thereof.
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Modification
The Junior Subordinated Indenture contains provisions permitting Funding
Corp., Florida Progress and the Indenture Trustee, with the consent of the
holders of not less than a majority in principal amount of the outstanding
QUIDS of each series affected thereby, to modify the Junior Subordinated
Indenture or the rights of the holders of the QUIDS of such series; provided,
that no such modification may, without the consent of the holder of each
outstanding QUIDS affected thereby, (1) except pursuant to the terms of the
Junior Subordinated Indenture, change the stated maturity of the principal of,
or any installment of principal of or interest on, any QUIDS, or reduce the
principal amount thereof or the rate of interest (including Additional
Interest) thereon or any premium payable upon the redemption thereof, or impair
the right to institute suit for the enforcement of any such payment on or after
the stated maturity thereof (or, in the case of redemption, on or after the
redemption date), or (2) reduce the percentage of principal amount of the
outstanding QUIDS of any series, the consent of whose holders is required for
any such supplemental indenture, or the consent of whose holders is required
for any waiver of compliance with provisions of the Junior Subordinated
Indenture or defaults thereunder and their consequences provided for in the
Junior Subordinated Indenture, or (3) modify any of the provisions of the
Junior Subordinated Indenture relating to supplemental indentures, waiver of
past defaults, or waiver of covenants, except to increase any such percentage
or to provide that other provisions of the Junior Subordinated Indenture cannot
be modified or waived without the consent of the holder of each outstanding
QUIDS affected thereby, or (4) reduce any amount payable under, delay or defer
the required time of payment under, or impair the right to institute suit to
enforce any payment under the QUIDS Guarantees, or (5) modify the provisions of
the Junior Subordinated Indenture with respect to the subordination of the
QUIDS or the QUIDS Guarantees in a manner adverse to such holder.
In addition, when Junior Subordinated Indentures of a series are held by an
FPC Capital Trust, the consent of the holders of not less than a majority of
the Liquidation Amount of outstanding QUIPS of that FPC Capital Trust is
required to modify the Junior Subordinated Indenture in a manner that adversely
affects (in any material respect) the interests of any holder of that FPC
Capital Trust's QUIPS. In addition, Funding Corp., Florida Progress and the
Indenture Trustee may execute, without the consent of any holders of QUIDS, any
supplemental indenture for other usual purposes, including the creation of any
new series of QUIDS.
Consolidation, Merger, Conveyance, Transfer or Lease
Neither Florida Progress nor Funding Corp. shall consolidate with or merge
into any other person or convey, transfer or lease its properties and assets
substantially as an entirety to any person, unless (1) the corporation formed
by such consolidation or into which the Company or the Guarantor is merged or
which acquires by conveyance or transfer, or which leases, the Properties and
assets of the Company or the Guarantor substantially as an entirety, is a
corporation, partnership or trust that expressly assumes, by supplemental
indenture executed and delivered to the Indenture Trustee, the payment of the
principal of (and premium, if any) and interest (including Additional Interest)
on all the QUIDS and the performance of every covenant of the Junior
Subordinated Indenture and the QUIDS Guarantee on the part of Florida Progress
or Funding Corp., as the case may be, to be performed or observed; (2)
immediately after giving effect to such transactions, no Junior Subordinated
Indenture Event of Default, and no event which, after notice or lapse of time
or both, would become a Junior Subordinated Indenture Event of Default, shall
have happened and be continuing; (3) Florida Progress or Funding Corp., as the
case may be, has delivered to the Indenture Trustee an officers' certificate
and an opinion of counsel, each stating that such transaction complies with the
provisions of the Junior Subordinated Indenture governing consolidation,
merger, conveyance, transfer or lease and that all conditions precedent thereto
have been complied with; and (4) in the case of QUIDS issued to a Trust, such
consolidation, merger,
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conveyance, transfer or lease is permitted under the related QUIPS Guarantee
and does not give rise to any breach or violation of the related Trust
Agreement or QUIPS.
Information Concerning the Indenture Trustee
The Indenture Trustee, except during the continuance of an Event of Default
with respect to QUIDS of any series, undertakes to perform, with respect to
QUIDS of such series, only such duties as are specifically set forth in the
Junior Subordinated Indenture and, in case an Event of Default with respect to
QUIDS of any series has occurred and is continuing, shall exercise, with
respect to QUIDS of such series, the same degree of care as a prudent
individual would exercise in the conduct of his or her own affairs. Subject to
such provision, the Indenture Trustee is under no obligation to exercise any of
the powers vested in it by the Junior Subordinated Indenture at the request of
any holder of QUIDS of any series, unless offered reasonable indemnity by such
holder against the costs, expenses and liabilities which might be incurred
thereby. The Indenture Trustee is not required to expend or risk its own funds
or otherwise incur any financial liability in the performance of its duties if
the Indenture Trustee reasonably believes that repayment or adequate indemnity
is not reasonably assured to it.
The First National Bank of Chicago, the Indenture Trustee, also serves as
Property Trustee and Guarantee Trustee. Florida Progress and some of its
subsidiaries maintain deposit accounts and banking relationships with The First
National Bank of Chicago. The First National Bank of Chicago serves as trustee
under other indentures pursuant to which securities of subsidiaries of Florida
Progress are outstanding.
Governing Law
The Junior Subordinated Indenture and the QUIDS will be governed by, and
construed in accordance with, the internal laws of the State of New York.
DESCRIPTION OF THE QUIDS GUARANTEES
Pursuant to the Junior Subordinated Indenture, Florida Progress will
irrevocably and unconditionally guarantee the due and punctual payment of
principal, premium, if any, and interest on the QUIDS when and as the same
shall become due and payable, whether at maturity, upon redemption or
otherwise. Each QUIDS Guarantee will constitute an unsecured obligation of
Florida Progress and will rank subordinate and junior to all Senior Debt that
may be issued by Florida Progress. As of December 31, 1998, Senior Debt of
Florida Progress aggregated approximately $1.2 billion. Since Florida Progress
is a holding company, the right of Florida Progress and, hence, the right of
creditors of Florida Progress (including the holders of the QUIDS) to
participate in any distribution of the assets of any subsidiary of Florida
Progress, whether upon liquidation, reorganization or otherwise, is subject to
prior claims of creditors of each such subsidiary.
DESCRIPTION OF THE QUIPS
Each Trust may issue only one series of QUIPS having terms described in the
Prospectus Supplement relating thereto. The Trust Agreement of each Trust will
authorize the Administrative Trustee, on behalf of the Trust, to issue the
QUIPS of such Trust. The QUIPS of each Trust will have such terms, including
distributions, redemption, voting, liquidation rights and such other preferred,
deferral or other special rights or such restrictions as shall be set forth in
the Trust Agreement of such Trust. Reference is made to the Prospectus
Supplement relating to the QUIPS of a Trust for specific terms, including (1)
the distinctive designation of such QUIPS; (2) the number of QUIPS
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issued by such Trust; (3) the annual distribution rate (or method of
determining such rate) for QUIPS of such Trust and the date or dates on which
such distributions shall be payable; (4) whether distributions on such QUIPS
shall be cumulative and, in the case of QUIPS having cumulative distribution
rights, the date or dates, or method of determining the date or dates, from
which distributions on such QUIPS shall be cumulative; (5) the amount or
amounts that shall be paid out of the assets of such Trust to the holders of
the QUIPS of such Trust upon voluntary or involuntary dissolution, winding-up
or termination of such Trust; (6) the obligation, if any, of such Trust to
purchase or redeem such QUIPS and the price or prices at which, the period or
periods within which, and the terms and conditions upon which such QUIPS shall
be purchased or redeemed, in whole or in part, pursuant to such obligation; (7)
the voting rights, if any, of such QUIPS in addition to those required by law,
including the number of votes per QUIPS and any requirement for the approval by
the holders of QUIPS as a condition to specified action or amendments to the
Trust Agreement of such Trust; (8) the rights, if any, to defer distributions
on the QUIPS by extending the interest payment period on the related QUIDS; and
(9) any other relative rights, preferences, privileges, limitations or
restrictions of such QUIPS not inconsistent with the Trust Agreement of such
Trust or applicable law. All QUIPS offered hereby will be guaranteed by Florida
Progress to the extent set forth under "Description of the QUIPS Guarantees."
Any material United States federal income tax considerations applicable to an
offering of QUIPS will be described in the Prospectus Supplement relating
thereto.
DESCRIPTION OF THE QUIPS GUARANTEES
Set forth below is a summary of information concerning the QUIPS Guarantees
that will be executed and delivered by Florida Progress for the benefit of the
holders of QUIPS of the respective Trusts from time to time. Each QUIPS
Guarantee will be qualified as an indenture under the 1939 Act. The First
National Bank of Chicago will act as indenture trustee under each QUIPS
Guarantee (the "Guarantee Trustee") for purposes of the 1939 Act. The terms of
the QUIPS Guarantees will be those set forth therein and those made part
thereof by the 1939 Act. The following summary does not purport to be complete
and is subject in all respects to the provisions of, and is qualified in its
entirety by reference to, the QUIPS Guarantees, the form of which is filed as
an exhibit to the Registration Statement of which this Prospectus forms a part,
and the 1939 Act. Each QUIPS Guarantee will be held by the Guarantee Trustee
for the benefit of holders of the QUIPS to which it relates.
General
Pursuant to each QUIPS Guarantee, Florida Progress will irrevocably and
unconditionally agree, to the extent set forth therein, to pay in full, to the
holders of the related QUIPS, the Guarantee Payments (as defined herein), to
the extent not paid by, or on behalf of, the related Trust, regardless of any
defense, right of set-off or counterclaim that Florida Progress may have or
assert against any person. The following payments or distributions with respect
to the QUIPS of any Trust to the extent not paid or made by, or on behalf of,
such Trust will be subject to the QUIPS Guarantee related thereto: (1) any
accrued and unpaid distributions required to be paid on the QUIPS of such Trust
but if and only if and to the extent that such Trust has funds legally and
immediately available therefor, (2) the redemption price, including all accrued
and unpaid distributions to the date of redemption (the "Redemption Price"),
with respect to any QUIPS called for redemption by such Trust, but if and only
to the extent such Trust has funds legally and immediately available therefor,
and (3) upon a liquidation, winding-up or termination of such Trust (other than
in connection with the distribution of QUIDS to the holders of Trust Securities
of such Trust), the lesser of (A) the aggregate of the liquidation amount and
all accrued and unpaid distributions on the QUIPS of such Trust to the date of
payment, to the extent such Trust has funds legally and immediately available
therefor, and (B) the
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amount of assets of such Trust remaining available for distribution to holders
of QUIPS of such Trust in liquidation of such Trust (the "Guarantee Payments").
Florida Progress's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by Florida Progress to the holders of
the related QUIPS or by causing the related Trust to pay such amounts to such
holders.
Each QUIPS Guarantee will be a guarantee of the Guarantee Payments with
respect to the related QUIPS from the time of issuance of such QUIPS, but will
not apply to the payment of distributions and other payments on such QUIPS when
the related Trust does not have sufficient funds legally and immediately
available to make such distributions or other payments. If Funding Corp. does
not make interest payments on the QUIDS held by the Property Trustee under any
Trust, such Trust will not make distributions on its QUIPS.
Subordination
Florida Progress's obligations under each QUIPS Guarantee to make the
Guarantee Payments will constitute an unsecured obligation of Florida Progress
and will rank (1) subordinate and junior in right of payment to all other
liabilities of Florida Progress, except those obligations or liabilities that
rank equally or subordinate by their terms, (2) equally with the most senior
preferred or preference stock hereafter issued by Florida Progress and (3)
senior to all common stock of Florida Progress. The terms of the QUIPS will
provide that each holder of QUIPS by acceptance thereof agrees to the
subordination provisions and other terms of the QUIPS Guarantee related
thereto. Florida Progress has outstanding common stock that ranks junior to the
QUIPS Guarantees. See "Selected Information--Selected Financial Information."
Each QUIPS Guarantee will constitute a guarantee of payment and not of
performance or collection (that is, the guaranteed party may institute a legal
proceeding directly against the guarantor to enforce its rights under the
guarantee without first instituting a legal proceeding against any other person
or entity).
Amendments and Assignment
Except with respect to any changes that do not materially and adversely
affect the rights of holders of the related QUIPS (in which case no consent
will be required), each QUIPS Guarantee may be amended only with the prior
approval of the holders of a majority in liquidation amount of such outstanding
QUIPS. The manner of obtaining any such approval of holders of the QUIPS will
be as set forth in an accompanying Prospectus Supplement. All guarantees and
agreements contained in each QUIPS Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of Florida Progress and shall
inure to the benefit of the holders of the related QUIPS then outstanding.
Termination
Each QUIPS Guarantee will terminate and be of no further force and effect as
to the related QUIPS upon full payment of the Redemption Price of all such
QUIPS, upon distribution of QUIDS to the holders of such QUIPS, or upon full
payment of the amounts payable upon liquidation of the related Trust. Each
QUIPS Guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any holder of the related QUIPS must restore
payment of any sums paid with respect to such QUIPS or under such QUIPS
Guarantee.
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Events of Default
An event of default under each QUIPS Guarantee will occur upon the failure
by Florida Progress to perform any of its payment or other obligations
thereunder, subject to applicable grace periods. The holders of a majority in
liquidation amount of the QUIPS to which any QUIPS Guarantee relates have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Guarantee Trustee in respect of such QUIPS Guarantee or
to direct the exercise of any trust or power conferred upon the Guarantee
Trustee under such QUIPS Guarantee. Any holder of the related QUIPS may
institute a legal proceeding directly against Florida Progress to enforce its
rights under such QUIPS Guarantee without first instituting a legal proceeding
against the Guarantee Trustee or any other person or entity. The holders of a
majority in liquidation amount of QUIPS of any series may, by vote, on behalf
of the holders of all the QUIPS of such series, waive any past event of default
and its consequences.
Information Concerning the Guarantee Trustee
The Guarantee Trustee, prior to the occurrence of any event of default with
respect to any QUIPS Guarantee and after the curing or waiving of all events of
default with respect to such QUIPS Guarantee, undertakes to perform only such
duties as are specifically set forth in such QUIPS Guarantee and, in case an
event of default has occurred, shall exercise the same degree of care as a
prudent individual would exercise in the conduct of his or her own affairs.
Subject to such provisions, the Guarantee Trustee is under no obligation to
exercise any of the powers vested in it by any QUIPS Guarantee at the request
of any holder of the related QUIPS, unless offered reasonable indemnity against
the costs, expenses and liabilities which might be incurred thereby. The
Guarantee Trustee is not required to expend or risk its own funds or otherwise
incur any financial liability in the performance of its duties if the Guarantee
Trustee reasonably believes that repayment or adequate indemnity is not
reasonably assured to it.
The First National Bank of Chicago, the Guarantee Trustee, also serves as
Property Trustee and as Indenture Trustee. Florida Progress and some of its
subsidiaries maintain deposit accounts and banking relationships with The First
National Bank of Chicago. The First National Bank of Chicago serves as trustee
under other indentures pursuant to which securities of subsidiaries of Florida
Progress are outstanding.
Governing Law
Each QUIPS Guarantee will be governed by, and construed in accordance with,
the internal laws of the State of New York.
The Agreements as to Expenses and Liabilities
Pursuant to an Agreement as to Expenses and Liabilities to be entered into
by Florida Progress under each Trust Agreement, Florida Progress will
irrevocably and unconditionally guarantee to each person or entity to whom each
Trust becomes indebted or liable the full payment of any indebtedness, expenses
or liabilities of such Trust, other than obligations of such Trust to pay to
the holders of the related QUIPS or other similar interests in such Trust the
amounts due such holders pursuant to the terms of such QUIPS or such other
similar interests, as the case may be.
RELATIONSHIP AMONG THE QUIPS, THE QUIDS,
THE QUIPS GUARANTEES AND THE QUIDS GUARANTEES
As long as payments of interest and other payments are made when due on each
series of QUIDS issued to a Trust, such payments will be sufficient to cover
distributions and payments due
14
<PAGE>
on the related Trust Securities of such Trust primarily because (1) the
aggregate principal amount of each series of QUIDS will be equal to the sum of
the aggregate stated liquidation amount of the related Trust Securities; (2)
the interest rate and interest and other payment dates on each series of QUIDS
will match the distribution rate and distribution and other payment dates for
the related QUIPS; (3) Florida Progress shall pay for all costs and expenses of
each Trust pursuant to the Agreements as to Expenses and Liabilities; and (4)
each Trust Agreement provides that the Securities Trustees thereunder shall not
cause or permit the Trust to, among other things, engage in any activity that
is not consistent with the purposes of the Trust.
Payments of distributions (to the extent funds therefor are legally and
immediately available) and other payments due on the QUIPS (to the extent funds
therefor are legally and immediately available) will be guaranteed by Florida
Progress as and to the extent set forth under "Description of the QUIPS
Guarantees." If Funding Corp. does not make interest payments on any series of
QUIDS, it is not expected that the related Trust will have sufficient funds to
pay distributions on its QUIPS. Each QUIPS Guarantee is a guarantee from the
time of its issuance, but does not apply to any payment of distributions unless
and until the related Trust has sufficient funds legally and immediately
available for the payment of such distributions.
If a Junior Subordinated Indenture Event of Default occurs and is continuing
with respect to any series of QUIDS and the Indenture Trustee fails or the
holders of not less than 25% in principal amount of the outstanding QUIDS of
such series fail to declare the principal of all of the QUIDS of such series to
be immediately due and payable, then the holders of at least 25% in liquidation
amount of the related QUIPS then outstanding will have the right by written
notice to Funding Corp., Florida Progress and the Indenture Trustee to declare
such principal immediately due and payable. Notwithstanding the foregoing, a
holder of QUIPS may institute a legal proceeding directly against Florida
Progress or Funding Corp., without first instituting a legal proceeding against
the Property Trustee or any other person or entity, for enforcement of payment
to such holder of principal of or interest on QUIDS of the related series
having a principal amount equal to the aggregate stated liquidation amount of
the QUIPS of such holder on or after the due dates specified in the QUIDS of
such series.
If Florida Progress fails to make payments under any QUIPS Guarantee, such
QUIPS Guarantee provides a mechanism whereby the holders of the QUIPS to which
such QUIPS Guarantee relates may direct the Guarantee Trustee to enforce its
rights thereunder. In addition, any holder of QUIPS may institute a legal
proceeding directly against Florida Progress to enforce its rights under the
related QUIPS Guarantee without first instituting a legal proceeding against
the Guarantee Trustee or any other person or entity.
Each QUIDS Guarantee, each QUIPS Guarantee, the Junior Subordinated
Indenture, the QUIDS of the related series, the related Trust Agreement and the
related Agreement as to Expenses and Liabilities, as described above,
constitute a full and unconditional guarantee by Florida Progress and Funding
Corp. of the payments due on the related series of QUIPS.
Upon any voluntary or involuntary dissolution, winding-up or termination of
any Trust, unless QUIDS of the related series are distributed in connection
therewith, the holders of QUIPS of such Trust will be entitled to receive, out
of assets legally available for distribution to holders, a liquidation
distribution in cash as described in the applicable Prospectus Supplement. Upon
any voluntary or involuntary liquidation or bankruptcy of Funding Corp., the
Property Trustee, as holder of the related series of QUIDS, would be a
subordinated creditor of Funding Corp., subordinated in right of payment to all
Senior Debt, but entitled to receive payment in full of principal and interest,
before any stockholders of Funding Corp. receive payments or distributions.
Because Florida Progress is guarantor under each QUIPS Guarantee and each QUIDS
Guarantee and has agreed to pay for all costs, expenses and liabilities of each
Trust (other than the Trust's obligations to holders of the
15
<PAGE>
QUIPS) pursuant to the related Agreement as to Expenses and Liabilities, the
positions of a holder of QUIPS and a holder of QUIDS of the related series
relative to other creditors and to stockholders of Florida Progress in the
event of liquidation or bankruptcy of Florida Progress would be substantially
the same.
A default or event of default under any Senior Debt would not constitute a
default or Event of Default under the Junior Subordinated Indenture. However,
in the event of payment defaults under, or acceleration of, Senior Debt, the
subordination provisions of the QUIDS provide that no payments may be made in
respect of the QUIDS until such Senior Debt has been paid in full or any
payment default thereunder has been cured or waived. Failure to make required
payments on the QUIDS of any series would constitute an Event of Default under
the Junior Subordinated Indenture with respect to the QUIDS of such series
except that failure to make interest payments on the QUIDS of such series will
not be an Event of Default during an extension period as described in the
applicable Prospectus Supplement.
PLAN OF DISTRIBUTION
Funding Corp. may sell the QUIDS and the Trust may sell the QUIPS in one or
more of the following ways from time to time: (1) to underwriters for resale to
the public or to institutional investors; (2) directly to institutional
investors; or (3) through agents to the public or to institutional investors.
The Prospectus Supplement with respect to any Securities will set forth the
terms of the offering of such Securities, including the name or names of any
underwriters or agents, the purchase price of such Securities and the proceeds
to Florida Progress, Funding Corp. or the applicable Trust from such sale, any
underwriting discounts or agency fees and other items constituting
underwriters' or agents' compensation, any initial public offering price, any
discounts or concessions allowed or reallowed or paid to dealers and any
securities exchange on which such Securities may be listed.
If underwriters participate in the sale, such Securities will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale.
Unless otherwise set forth in the Prospectus Supplement, the obligations of
the underwriters to purchase any series of Securities will be subject to
conditions precedent and the underwriters will be obligated to purchase all of
such series of Securities, if any are purchased.
Underwriters and agents may be entitled under agreements entered into with
Florida Progress, Funding Corp. and/or the applicable Trust to indemnification
against specified civil liabilities, including liabilities under the 1933 Act.
Underwriters and agents may engage in transactions with, or perform services
for, Florida Progress in the ordinary course of business.
Each series of QUIDS and QUIPS will be a new issue of securities and will
have no established trading market. Any underwriters to whom QUIDS and QUIPS
are sold for public offering and sale may make a market in such QUIDS and
QUIPS, but such underwriters will not be obligated to do so and may discontinue
any market making at any time without notice. The QUIDS and QUIPS may or may
not be listed on a national securities exchange.
LEGAL MATTERS
Specific matters of Delaware law relating to the validity of the QUIPS will
be passed upon on behalf of Florida Progress Funding Corp. and the Trusts by
Richards, Layton & Finger P.A.,
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<PAGE>
Wilmington, Delaware, special Delaware counsel to Funding Corp. and the Trusts.
The validity of the QUIDS and specific matters relating thereto will be passed
upon on behalf of Florida Progress and Funding Corp. by Kenneth E. Armstrong,
Vice President and General Counsel of Florida Progress.
EXPERTS
The consolidated financial statements and schedules of Florida Progress as
of December 31, 1998 and 1997, and for each of the years in the three-year
period ended December 31, 1998 included in Florida Progress's Annual Report on
Form 10-K for the year ended December 31, 1998 have been incorporated by
reference herein in reliance upon the report of KPMG LLP, independent certified
public accountants, incorporated herein and upon the authority of said firm as
experts in accounting and auditing.
17
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
No dealer, salesperson or other person is authorized to give any
information or to represent anything not contained in this prospectus. You
must not rely on any unauthorized information or representations. This
prospectus is an offer to sell only the QUIPS offered hereby, but only under
circumstances and in jurisdictions where it is lawful to do so. The
information contained in this prospectus is current only as of its date.
------------
TABLE OF CONTENTS
Prospectus Supplement
<TABLE>
<CAPTION>
Page
----
<S> <C>
Summary Information--Q&A.................................................. S-1
Risk Factors.............................................................. S-5
FPC Capital I............................................................. S-8
Accounting Treatment...................................................... S-9
Selected Consolidated Financial Information of Florida Progress........... S-10
Use of Proceeds........................................................... S-11
Description of the Series A QUIPS......................................... S-11
Description of the Series A QUIDS......................................... S-22
Description of the Series A QUIDS Guarantee............................... S-24
Relationship Among the Series A QUIPS, the Series A QUIDS, the Series A
QUIPS Guarantee and the Series A QUIDS Guarantee......................... S-24
United States Federal Income Tax Considerations........................... S-26
Underwriting.............................................................. S-30
Legal Matters............................................................. S-31
Prospectus
Prospectus................................................................ 1
Where You Can Get More Information........................................ 2
Incorporation of Documents by Reference................................... 2
Florida Progress Corporation.............................................. 3
Florida Progress Funding Corporation...................................... 3
The Trusts................................................................ 4
Accounting Treatment of the Trust......................................... 4
Ratios.................................................................... 4
Use of Proceeds........................................................... 5
Description of the QUIDS.................................................. 5
Description of the QUIDS Guarantees....................................... 11
Description of the QUIPS.................................................. 11
Description of the QUIPS Guarantees....................................... 12
Relationship Among the QUIPS, The QUIDS, The QUIPS Guarantees and the
QUIDS Guarantees......................................................... 14
Plan of Distribution...................................................... 16
Legal Matters............................................................. 16
Experts................................................................... 17
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Preferred Securities
FPC Capital I
% Cumulative Quarterly Income Preferred Securities (QUIPSSM)
(Liquidation Amount $25 per QUIPS)
Fully and unconditionally guaranteed,
as described herein, by
Florida Progress Corporation
------------
(Florida Progress Corporation Logo)
------------
Goldman, Sachs & Co.
Salomon Smith Barney
Representatives of the Underwriters
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses of issuance and distribution, other than underwriting
discounts and commissions, to be borne by Florida Progress are as follows:
<TABLE>
<S> <C>
Filing Fees--Securities and Exchange Commission--registration
statement....................................................... $ 83,400
Charges of trustees (including counsel).......................... 20,000
Listing fees of New York Stock Exchange.......................... 72,300
Printing and preparation of registration statement, prospectus,
etc............................................................. 50,000
Rating agency fees............................................... 78,250
Fees and expenses of counsel..................................... 75,000
Blue sky fees and expenses....................................... 5,000
Fees of accountants, KPMG LLP.................................... 30,000
Miscellaneous, including telephone charges and traveling
expenses........................................................ 11,050
--------
Total........................................................ $425,000
========
</TABLE>
Item 15. Indemnification of Directors and Officers.
The Florida Business Corporation Act, as amended (the "Florida Act"),
provides that, in general, a business corporation may indemnify any person who
is or was a party to any proceeding (other than an action by, or in the right
of, the corporation) by reason of the fact that he or she is or was a director
or officer of the corporation, against liability incurred in connection with
such proceeding, provided certain standards are met, including that such
officer or director acted in good faith and in a manner reasonably believed to
be in, or not opposed to, the best interests of the corporation, and provided
further that, with respect to any criminal action or proceeding, the officer or
director had no reasonable cause to believe his or her conduct was unlawful. In
the case of proceedings by or in the right of the corporation, the Florida Act
provides that, in general, a corporation may indemnify any person who was or is
a party to such proceeding by reason of the fact that he or she is or was a
director or officer of the corporation against expenses and amounts paid in
settlement actually and reasonably incurred in connection with the defense or
settlement of such proceeding, including the appeal thereof, provided that such
person acted in good faith and in a manner he or she reasonably believed to be
in, or not opposed to, the best interest of the corporation, and provided
further that no indemnity shall be made in respect of any claim as to which
such person is adjudged liable unless a court of competent jurisdiction
determines upon application that such person is fairly and reasonably entitled
to indemnity. To the extent that any officers or directors are successful on
the merits or otherwise in the defense of any of the proceedings described
above, the Florida Act provides that the corporation is required to indemnify
such officers or directors against expenses actually and reasonably incurred in
connection therewith. However, the Florida Act further provides that, in
general, indemnification or advancement of expenses shall not be made to or on
behalf of any officer or director if a judgment or other final adjudication
establishes that his or her actions, or omissions to act, were material to the
cause of action so adjudicated and constitute: (i) a violation of the criminal
law, unless the director or officer had reasonable cause to believe his or her
conduct was lawful or had no reasonable cause to believe it was unlawful; (ii)
a transaction from which the director or officer derived an improper personal
benefit; (iii) in the case of a director, a circumstance under which the
director has voted for or assented to a distribution made in violation of the
Florida Act or the corporation's articles of incorporation; or (iv) willful
misconduct or a conscious disregard for the
II-1
<PAGE>
best interest of the corporation in a proceeding by or in the right of the
corporation to procure a judgment in its favor or in a proceeding by or in the
right of a shareholder. Article XI of Florida Progress' By-laws provides that
it shall indemnify any director, officer or employee or any former director,
officer or employee to the full extent permitted by law.
Funding Corp. also has statutory authority to indemnify its officers and
directors. The applicable provisions of the Delaware General Corporation Law,
as amended (the "DGCL"), state that, to the extent such person is successful on
the merits or otherwise, a corporation may indemnify any person who was or is a
party or who is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation),
by reason of the fact that he is or was a director, officer, employee or agent
of the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise ("such Person"), against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement, actually and
reasonably incurred by such Person, if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. In any threatened,
pending or completed action by or in the right of the corporation, a
corporation also may indemnify any such Person for costs actually and
reasonably incurred by him in connection with that action's defense or
settlement, if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation; however, no
indemnification shall be made with respect to any claim, issue or matter as to
which such Person shall have been adjudged to be liable to the corporation,
unless and only to the extent that a court shall determine that such indemnity
is proper.
Under the applicable provisions of the DGCL, any indemnification shall be
made by the corporation only as authorized in the specific case upon a
determination that the indemnification of the director, officer, employee or
agent is proper in the circumstances because he has met the applicable standard
of conduct. Such determination shall be made:
(1) By the Board of Directors of Funding Corp. by a majority vote of the
directors who are not parties to such action, suit or proceeding, even if
less than a quorum;
(2) By a committee of such directors designated by a majority vote of
the directors who are not parties to such action, suit or proceeding, even
if less than a quorum;
(3) If there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion; or
(4) By the stockholders.
Funding Corp.'s Certificate of Incorporation and By-laws provide for
indemnification to the full extent permitted by the laws of the State of
Delaware.
The underwriters, if any, will also agree to indemnify Florida Progress,
Funding Corp., their directors and officers, and the Trust against certain
liabilities to the extent set forth in the respective Underwriting Agreement
and to contribute to amounts paid by Florida Progress or Funding Corp. if the
indemnification provided is unavailable or insufficient.
Florida Progress and Funding Corp. have purchased insurance with respect to,
among other things, the liabilities that may arise under the statutory
provisions referred to above. The directors and officers of Florida Progress
and Funding Corp. also are insured against certain liabilities, including
certain liabilities arising under the Securities Act of 1933, as amended, which
might be incurred by them in such capacities and against which they are not
indemnified by Florida Progress and Funding Corp., as applicable.
II-2
<PAGE>
The Trust Agreement provides that, to the fullest extent permitted by
applicable law, Funding Corp. shall indemnify and hold harmless any Trustee,
affiliates of any Trustee or any officers, directors, shareholders, employees,
representatives or agents of any Trustee or any employee or agent of the Trust
or its affiliates (each an "Indemnified Person") from and against any loss,
damage, tax, penalty, expense or claim of any kind incurred by such Indemnified
Person by reason of the creation, operation or termination of the Trust or any
act or omission performed or omitted by such Indemnified Person in good faith
on behalf of the Trust and in a manner such Indemnified Person reasonably
believed to be within the scope of authority conferred on such Indemnified
Person by the Trust Agreement, except that no Indemnified Person shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
such Indemnified Person by reason of negligence or willful misconduct with
respect to such acts or omissions.
Item 16. Exhibits and Financial Statement Schedules
<TABLE>
<CAPTION>
Exhibit
Number
-------
<C> <S>
1.1 Form of Underwriting Agreement relating to Preferred Securities.
4.1 Form of Junior Subordinated Indenture among Florida Progress
Corporation, Florida Progress Funding Corp. and The First National
Bank of Chicago, as Trustee.
4.2 Form of Supplemental Indenture to Junior Subordinated Indenture among
Florida Progress Corporation, Florida Progress Funding Corp. and The
First National Bank of Chicago, as Trustee.
4.3(a) Certificate of Trust of FPC Capital I.
4.3(b) Certificate of Trust of FPC Capital II.
4.4(a) Trust Agreement of FPC Capital I.
4.4(b) Trust Agreement of FPC Capital II.
4.5 Form of Amended and Restated Trust Agreement (Agreements of FPC
Capital I and FPC Capital II will be substantially identical except
for names and dates).
4.6 Form of Preferred Security of FPC Capital I and FPC Capital II
(included in Exhibit 4.5 above).
4.7 Form of Junior Subordinated Note (included in Exhibit 4.2 above).
4.8 Form of Guarantee Agreement between Florida Progress Corporation and
The First National Bank of Chicago, as trustee (Agreements relating to
FPC Capital I and FPC Capital II will be substantially identical
except for names and dates).
4.9 Form of Agreement as to Expenses and Liabilities (included in Exhibit
4.5 above).
5.1 Opinion of Kenneth E. Armstrong, Esq. relating to Florida Progress
Corporation and Florida Progress Funding Corporation.
5.2(a) Opinion of Richards, Layton & Finger, P.A. relating to FPC Capital I.
5.2(b) Opinion of Richards, Layton & Finger, P.A. relating to FPC Capital II.
8.1 Opinion of Thelen Reid & Priest LLP, special counsel to Florida
Progress Corporation.
12.1 Computation of ratio of earnings to fixed charges.
12.2 Computation of ratio of earnings to fixed charges plus preferred
dividend requirements (pre-income tax basis).
23.1 Consent of KPMG LLP.
23.2 Consent of Kenneth E. Armstrong, Esq. (included in Exhibit 5.1 above).
23.3 Consent of Richards, Layton & Finger, P.A. (included in Exhibits
5.2(a) and 5.2(b) above).
23.4 Consent of Thelen Reid & Priest LLP (included in Exhibit 8.1 above).
24.1 Powers of Attorney (contained on the signature pages hereof).
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number
-------
<C> <S>
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of The First National Bank of Chicago, as Trustee
for the Junior Subordinated Indenture and Guarantee Trustee for the
Guarantee Agreements.
25.2 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of The First National Bank of Chicago, as Trustee
for the Junior Subordinated Indenture.
25.3 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of The First National Bank of Chicago, as Property
Trustee for the Amended and Restated Trust Agreement of FPC Capital I.
25.4 Form T-1 Statement of Eligibility under Trust Indenture Act of 1939,
as amended, of The First National Bank of Chicago, as Property Trustee
for the Amended and Restated Trust Agreement of FPC Capital II.
</TABLE>
Exhibits listed above which have heretofore been filed with the Commission
and which were designated as noted above are hereby incorporated herein by
reference and made a part hereof with the same effect as if filed herewith.
- --------
Item 17. Undertakings.
(a) Undertaking related to Rule 415 offering:
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrants
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
II-4
<PAGE>
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) Undertaking related to filings incorporating subsequent Securities
Exchange Act of 1934 documents by reference:
The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Company's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Undertaking related to acceleration of effectiveness:
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the registrants pursuant to the foregoing provisions or otherwise, the
registrants have been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrants of expenses incurred or paid by a director, officer or
controlling person of the registrants in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrants will, unless in the opinion of their counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(d) Undertakings related to Rule 430A offering:
The undersigned registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrants pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Act shall be deemed to be
part of this registration statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(e) Undertaking related to qualification of trust indenture for delayed
offerings:
The undersigned registrants hereby undertake to file applications for
the purpose of determining the eligibility of the trustees to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with
the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Act.
(f) Undertaking related to equity offering of nonreporting registrants:
The undersigned registrants hereby undertake to provide to the
underwriter at the closing specified in the underwriting agreements,
certificates in such denominations and registered in such names as required
by the underwriter to permit prompt delivery to each purchaser.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Florida Progress Corporation, a Florida corporation, certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Atlanta,
State of Georgia, on the 24th day of March, 1999.
Florida Progress Corporation
/s/ Richard Korpan
By: _________________________________
Richard Korpan
Chairman of the Board, President
and Chief Executive Officer
KNOWN BY ALL MEN BY THESE PRESENTS that each of the undersigned officers and
directors of Florida Progress Corporation, a Florida corporation, for himself
or herself and not for one another, does hereby constitute and appoint KENNETH
E. ARMSTRONG, PAMELA A. SAARI and DOUGLAS E. WENTZ, and each of them, a true
and lawful attorney in his or her name, place and stead, in any and all
capacities, to sign his or her name to any and all amendments to this report,
and to cause the same to be filed with the Securities and Exchange Commission,
granting unto said attorneys and each of them full power and authority to do
and perform any act and thing necessary and proper to be done in the premises,
as fully to all intents and purposes as the undersigned could do if personally
present, and each of the undersigned for himself or herself hereby ratifies and
confirms all that said attorneys or any one of them shall lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons on behalf
of the registrant and in the capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Richard Korpan Chairman of the Board, March 24, 1999
______________________________________ President, Chief
Richard Korpan Executive Officer and
Principal Executive Officer Director
/s/ Edward W. Moneypenny Senior Vice President and March 24, 1999
______________________________________ Chief Financial Officer
Edward W. Moneypenny
Principal Financial Officer
/s/ John Scardino, Jr. Vice President and March 24, 1999
______________________________________ Controller
John Scardino, Jr.
Principal Accounting Officer
/s/ W. D. Frederick, Jr. Director March 24, 1999
______________________________________
W. D. Frederick, Jr.
/s/ Michael P. Graney Director March 24, 1999
______________________________________
Michael P. Graney
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Clarence V. McKee Director March 24, 1999
______________________________________
Clarence V. McKee
/s/ Vincent J. Naimoli Director March 24, 1999
______________________________________
Vincent J. Naimoli
/s/ Richard A. Nunis Director March 24, 1999
______________________________________
Richard A. Nunis
/s/ Joan D. Ruffier Director March 24, 1999
______________________________________
Joan D. Ruffier
/s/ Robert T. Stuart, Jr. Director March 24, 1999
______________________________________
Robert T. Stuart, Jr.
/s/ Jean Giles Wittner Director March 24, 1999
______________________________________
Jean Giles Wittner
</TABLE>
II-7
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Florida Progress Funding Corp., a Delaware corporation, certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Atlanta,
State of Georgia, on the 24th day of March, 1999.
Florida Progress Funding Corporation
/s/ Richard Korpan
By: _________________________________
Name: Richard Korpan
Title: Chairman of the Board,
President and Chief
Executive Officer
KNOWN BY ALL MEN BY THESE PRESENTS that each of the undersigned officers and
directors of Florida Progress Funding Corporation, a Delaware corporation, for
himself or herself and not for one another, does hereby constitute and appoint
Kenneth E. Armstrong, Pamela A. Saari and Douglas E. Wentz, and each of them, a
true and lawful attorney in his or her name, place and stead, in any and all
capacities, to sign his or her name to any and all amendments to this report,
and to cause the same to be filed with the Securities and Exchange Commission,
granting unto said attorneys and each of them full power and authority to do
and perform any act and thing necessary and proper to be done in the premises,
as fully to all intents and purposes as the undersigned could do if personally
present, and each of the undersigned for himself or herself hereby ratifies and
confirms all that said attorneys or any one of them shall lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons on behalf
of the registrant and in the capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Richard Korpan Chairman of the Board, March 24, 1999
______________________________________ President, Chief
Richard Korpan Executive Officer and
Principal Executive Officer Director
/s/ Edward W. Moneypenny Senior Vice President, March 24, 1999
______________________________________ Chief Financial Officer
Edward W. Moneypenny and Director
Principal Financial Officer
/s/ John Scardino, Jr. Vice President and March 24, 1999
______________________________________ Controller
John Scardino, Jr.
Principal Accounting Officer
/s/ Kathleen M. Haley Director March 24, 1999
______________________________________
Kathleen M. Haley
</TABLE>
II-8
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, FPC Capital I
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on the 24th day of March,
1999.
FPC Capital I
By: Florida Progress Funding
Corporation, Depositor
/s/ Edward W. Moneypenny
By: _________________________________
Name: Edward W. Moneypenny
Title: Senior Vice President and
Chief Financial Officer
II-9
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, FPC Capital II
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on the 24th day of March,
1999.
FPC Capital II
By: Florida Progress Funding
Corporation, Depositor
/s/ Edward W. Moneypenny
By: _________________________________
Name: Edward W. Moneypenny
Title: Senior Vice President
and Chief Financial
Officer
II-10
<PAGE>
EXHIBIT 1.1
$______________
FPC CAPITAL I
(a Delaware Statutory Business Trust)
________% Cumulative Quarterly Income Preferred Securities, Series A
(Liquidation Amount $25 Per Preferred Security)
UNDERWRITING AGREEMENT
_____________, 1999
Goldman, Sachs & Co.,
Salomon Smith Barney Inc.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
FPC Capital I (the "Trust"), a statutory business trust organized
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12, of the Delaware Code, 12 Del. C. ((S)(S) 3801 et seq.),
Florida Progress Funding Corporation, a Delaware corporation ("Funding"), and
Florida Progress Corporation, a Florida corporation (the "Company" and, together
with the Trust and Funding, the "Offerors"), confirm their agreement (the
"Agreement") with you and each of the other Underwriters named in Schedule I
hereto (collectively, the "Underwriters", which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
you are acting as representatives (in such capacity, you shall hereinafter be
referred to as the "Representatives"), with respect to the sale by the Trust and
the purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of _____% Cumulative Quarterly Income Preferred Securities,
Series A (liquidation amount $25 per Preferred Security) of the Trust
("Preferred Securities") set forth in Schedule I. The Preferred Securities will
be guaranteed by the Company with respect to distributions and payments upon
liquidation, redemption and otherwise (the "Preferred Securities Guarantee")
pursuant to the Guarantee Agreement (the "Guarantee Agreement"), dated as of
___________ 1, 1999, between the Company and The First National Bank of Chicago,
as trustee (the "Preferred Securities Guarantee Trustee"). The Preferred
Securities and the related Preferred Securities Guarantee are referred to herein
as the "Securities."
The Offerors understand that the Underwriters propose to make a public
offering of the Preferred Securities as soon as the Representatives deem
advisable after this Agreement has been executed and delivered.
<PAGE>
The entire proceeds from the sale of the Securities will be combined
with the entire proceeds from the sale by the Trust to Funding of its common
securities (the "Common Securities") and will be used by the Trust to purchase
the $_________ aggregate principal amount of _____% Series A Junior Subordinated
Deferred Interest Notes due ______________, 2039 (the "Junior Subordinated
Notes") to be issued by Funding. The Junior Subordinated Notes will be
guaranteed by the Company with respect to interest and principal, including
payments on acceleration, redemption and otherwise (the "Notes Guarantee")
pursuant to the terms of the Indenture (as defined herein).
The Preferred Securities and the Common Securities will be issued
pursuant to the Amended and Restated Trust Agreement, dated as of _____________
1,1999 (the "Trust Agreement"), among Funding, as Depositor, PROGRESS RAIL
SERVICES CORPORATION, an Alabama corporation (the "Administrative Trustee"),
First Chicago Delaware Inc., a Delaware banking corporation (the "Delaware
Trustee") and The First National Bank of Chicago, a national banking association
(the "Property Trustee" and, together with the Delaware Trustee and the
Administrative Trustee, the "Trustees"), as trustees, and the holders from time
to time of undivided beneficial interests in the assets of the Trust. The Junior
Subordinated Notes will be issued pursuant to an indenture, dated as of
____________ 1, 1999 (the "Indenture"), among Funding, the Company and The First
National Bank of Chicago, as trustee (the "Debenture Trustee").
The Company and the Trust will enter into an Agreement as to Expenses
and Liabilities dated as of _________ 1, 1999 (the "Agreement as to Expenses and
Liabilities"). Pursuant to the Agreement as to Expenses and Liabilities, the
Company will guarantee to each person or entity to whom the Trust may be
indebted or liable, the full payment of such obligations.
Section 1. REPRESENTATIONS AND WARRANTIES.
The Offerors jointly and severally represent and warrant to each
Underwriter as of the date hereof and, where indicated, as of the Closing Date
(as hereinafter defined) as follows:
(a) A registration statement on Form S-3, as amended (File No.
____________________), in respect of the Preferred Securities, the Preferred
Securities Guarantee, the Notes Guarantee, the Junior Subordinated Notes and
certain other securities ("Registered Securities") has been prepared and filed
in accordance with the provisions of the Securities Act of 1933, as amended (the
"Securities Act"), with the Securities and Exchange Commission (the
"Commission"); such registration statement, as amended, and any post-effective
amendment thereto, each in the form heretofore delivered or to be delivered to
the Underwriters, has been declared effective by the Commission in such form
(except that copies of the registration statement, as amended, and any post-
effective amendment delivered to the Underwriters need not include exhibits but
shall include all documents incorporated by reference therein); and no stop
order suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or, to the best
knowledge of the Company, threatened by the Commission (any preliminary
prospectus, as supplemented by a preliminary prospectus supplement, included in
such registration statement or filed with the Commission pursuant to Rule 424(a)
of the rules and regulations of the Commission under the Securities Act, being
hereinafter called a "Preliminary Prospectus"); such registration statement, as
it became effective, including the exhibits thereto and all documents
incorporated by
2
<PAGE>
reference therein pursuant to Item 12 of Form S-3 at the time such registration
statement became effective, being hereinafter called the "Registration
Statement"; the prospectus relating to the Registered Securities, in the form in
which it was included in the Registration Statement at the time it became
effective, being hereinafter called the "Prospectus"; any reference herein to
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Securities Act, as of the date of such Preliminary Prospectus
or Prospectus, as the case may be; any reference to any amendment or supplement
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and include the most
recent annual report on Form 10-K of the Company filed pursuant to Section 13(a)
or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement; and
the Prospectus as amended or supplemented in final form by a prospectus
supplement relating to any of the Registered Securities in the form in which it
is filed with the Commission, pursuant to Rule 424(b) under the Securities Act
in accordance with Section 3(g) hereof, including any documents incorporated by
reference therein as of the date of such filing, being hereinafter called the
"Final Supplemented Prospectus."
(b) The documents incorporated by reference in the Registration
Statement or Prospectus, when they were filed with the Commission, complied in
all material respects with the applicable provisions of the Exchange Act and the
rules and regulations of the Commission thereunder, and as of such time of
filing, when read together with the Prospectus, none of such documents 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, in
the light of the circumstances under which they were made, not misleading; and
any further documents so filed and incorporated by reference in the Prospectus
or any further amendment or supplement thereto, when such documents are filed
with the Commission, will comply in all material respects with the applicable
provisions of the Exchange Act and the rules and regulations of the Commission
thereunder and, when read together with the Prospectus as it otherwise may be
amended or supplemented, will 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, in the light of the circumstances under which they
were made, not misleading, except that neither the Trust, Funding nor the
Company makes any warranty or representation to any Underwriter with respect to:
(A) any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through the
Representatives expressly for use in the Prospectus or Final Supplemented
Prospectus, which shall only include information specifically referenced on
Schedules I or II or Exhibit A hereto; or (B) any information set forth in the
Prospectus or the Final Supplemented Prospectus under the caption Book Entry
Only Issuance -- The Depository Trust Company".
(c) The Registration Statement, the Prospectus and the Final
Supplemented Prospectus comply, in all material respects, in form and substance,
with the applicable provisions of the Securities Act, the Exchange Act, the
Trust Indenture Act of 1939, as amended (the "TIA") and the rules and
regulations of the Commission thereunder and neither the Registration Statement,
3
<PAGE>
the Prospectus, nor the Final Supplemented Prospectus contains an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; except
that neither the Company, Funding nor the Trust makes any warranties or
representations with respect to (A) that part of the Registration Statement
which shall constitute the Statements of Eligibility (Form T-1) (collectively,
the "Form T-1") under the TIA, (B) any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by
an Underwriter through the Representatives expressly for use in the Prospectus
or Final Supplemented Prospectus, which shall only include information
specifically referenced on Schedules I or II or Exhibit A hereto or (C) any
information set forth in the Prospectus or the Final Supplemented Prospectus
under the caption Book-Entry Only Issuance -- The Depository Trust Company".
(d) With respect to the Registration Statement, the conditions for
use of Form S-3, as set forth in the General Instructions thereof, have been
satisfied.
(e) Since the respective dates as of which information is given in
the Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, (a) neither the Company and its subsidiaries
(excluding Funding) considered as one enterprise or Funding has sustained any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, (b) there has not been any
material change in the capital stock, short-term debt or long-term debt of the
Company and its subsidiaries (excluding Funding) considered as one enterprise or
Funding or any material adverse change, or, to the best of the Company's
knowledge, any development involving a prospective material adverse change, in
the condition (financial or other), net worth or results of operations or
business affairs or business prospects of the Company and its subsidiaries
(excluding Funding) considered as one enterprise or Funding and (c) there has
not been any material transaction entered into by the Company and its
subsidiaries (excluding Funding) considered as one enterprise or Funding other
than transactions in the usual course of business. Neither the Company nor
Funding has any material contingent obligations which are not disclosed in the
Registration Statement and the Final Supplemented Prospectus.
(f) Since the respective dates as of which information is given in
the Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, there has not been any material adverse change or, to
the best of the Company's knowledge, any development involving a prospective
material adverse change in or affecting the business, properties or financial
condition of the Trust (it being understood that any such change involving only
the Company shall not constitute such a change with respect to the Trust).
(g) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Florida with power
and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Final Supplemented
Prospectus and to enter into and perform its obligations under this Agreement,
the Indenture and the Guarantee Agreement and to issue and deliver the Preferred
Securities Guarantee and the Notes Guarantee. The Company is duly qualified as
a foreign corporation to transact business and is in good standing in each
jurisdiction in which its ownership
4
<PAGE>
or lease of substantial properties or the conduct of its business requires such
qualification and in which the failure to so qualify and be in good standing
would materially adversely affect its business or financial condition.
(h) Funding has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with power
and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Final Supplemented
Prospectus and to enter into and perform its obligations under this Agreement,
the Trust Agreement and the Indenture and to purchase, own and hold the Common
Securities issued by the Trust and to issue the Junior Subordinated Notes.
Funding is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which its ownership or lease of
substantial properties or the conduct of its business requires such
qualification and in which the failure to so qualify and be in good standing
would materially adversely affect its business or financial condition.
(i) The Trust has been duly created and is validly existing and in
good standing as a business trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in the
Registration Statement and the Final Supplemented Prospectus and to enter into
and perform its obligations under this Agreement and the Trust Agreement. The
Trust is duly qualified to transact business as a foreign company and is in good
standing in each jurisdiction in which its ownership or lease of substantial
properties or the conduct of its business requires such qualification and in
which the failure to so qualify and be in good standing would materially
adversely affect its business or financial condition. The Trust is not a party
to or otherwise bound by any agreement other than those described in the Final
Supplemented Prospectus. The Trust is and will be classified for United States
federal income tax purposes as a grantor trust and not as an association taxable
as a corporation; and the Trust is and will be treated as a consolidated
subsidiary of the Company pursuant to generally accepted accounting principles.
(j) The Common Securities have been duly authorized by the Trust
Agreement and, when issued and delivered by the Trust to Funding against payment
therefor as described in the Registration Statement and the Final Supplemented
Prospectus, will be validly issued and (subject to the terms of the Trust
Agreement) fully paid and non-assessable undivided beneficial interests in
assets of the Trust and will conform in all material respects to all statements
relating thereto contained in the Final Supplemented Prospectus. The issuance
of the Common Securities is not subject to preemptive or other similar rights;
and, on the Closing Date (as defined herein), all of the issued and outstanding
Common Securities of the Trust will be directly owned by Funding, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equitable right.
(k) As to each Offeror, this Agreement has been duly authorized,
executed and delivered by it.
(l) The Trust Agreement has been duly authorized by Funding and, on
the Closing Date, will have been duly executed and delivered by Funding and the
Administrative Trustee, and assuming due authorization, execution and delivery
of the Trust Agreement by the Delaware Trustee and the Property Trustee, the
Trust Agreement will, on the Closing Date, be a valid and binding obligation of
Funding and the Administrative Trustee, enforceable against Funding and
5
<PAGE>
the Administrative Trustee in accordance with its terms, except to the extent
that enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, liquidation, fraudulent conveyance, moratorium or
other similar laws affecting the enforcement of creditors' rights generally or
(2) general principles of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity) (the "Enforceability
Exceptions") and will conform in all material respects to all statements
relating thereto in the Final Supplemented Prospectus; and on the Closing Date,
the Trust Agreement will have been duly qualified under the TIA.
(m) The Guarantee Agreement and the Agreement as to Expenses and
Liabilities have been duly authorized by the Company and, on the Closing Date,
will have been duly executed and delivered by the Company, and, assuming due
authorization, execution and delivery of the Guarantee Agreement and the
Agreement as to Expenses and Liabilities by the other respective parties
thereto, the Guarantee Agreement and the Agreement as to Expenses and
Liabilities will, on the Closing Date, constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms
except to the extent that enforcement thereof may be limited by the
Enforceability Exceptions, and each of the Preferred Securities Guarantee, the
Agreement as to Expenses and Liabilities and the Guarantee Agreement will
conform in all material respects to all statements relating thereto contained in
the Final Supplemented Prospectus, and, on the Closing Date, the Guarantee
Agreement will have been duly qualified under the TIA.
(n) The Preferred Securities have been duly authorized by the Trust
Agreement and, when issued and delivered by the Trust pursuant to this Agreement
against payment of the consideration set forth herein, will be validly issued
and (subject to the terms of the Trust Agreement) fully paid and non-assessable
undivided beneficial interests in the assets of the Trust, will be entitled to
the benefits of the Trust Agreement and will conform in all material respects to
all statements relating thereto contained in the Final Supplemented Prospectus;
the issuance of the Preferred Securities is not subject to preemptive or other
similar rights; and (subject to the terms of the Trust Agreement) holders of
Preferred Securities will be entitled to the same limitation of personal
liability under Delaware law as extended to stockholders of private corporations
for profit.
(o) The Indenture has been duly authorized by Funding and the
Company, and on the Closing Date, will have been duly executed and delivered by
Funding and the Company, and, assuming due authorization, execution and delivery
of the Indenture by the Debenture Trustee, the Indenture will, on the Closing
Date, constitute a valid and binding obligation of each of Funding and the
Company, enforceable against each of Funding and the Company in accordance with
its terms except to the extent that enforcement thereof may be limited by the
Enforceability Exceptions; the Indenture will conform in all material respects
to all statements relating thereto contained in the Final Supplemented
Prospectus; and on the Closing Date, the Indenture will have been duly qualified
under the TIA.
(p) The issuance and delivery of the Junior Subordinated Notes have
been duly authorized by Funding and, on the Closing Date, the Junior
Subordinated Notes will have been duly executed by Funding and, when
authenticated in the manner provided for in the Indenture and delivered against
payment therefor as described in the Final Supplemented Prospectus, will
constitute valid and legally binding obligations of Funding, enforceable against
Funding in accordance with their terms, except to the extent that enforcement
thereof may be limited by the
6
<PAGE>
Enforceability Exceptions, will be in the form contemplated by, and entitled to
the benefits of, the Indenture and will conform in all material respects to all
statements relating thereto in the Final Supplemented Prospectus.
(q) The Company's obligations under the Preferred Securities
Guarantee (i) are subordinate and junior in right of payment to all liabilities
of the Company, except those obligations or liabilities made pari passu or
subordinate by their terms, (ii) are pari passu with the preferred stock that
may be issued by the Company and (iii) are senior to all common stock of the
Company.
(r) The Junior Subordinated Notes are subordinated and junior in
right of payment to all "Senior Debt" (as defined in the Indenture) of Funding.
(s) The Notes Guarantee is subordinate and junior to all "Senior
Debt" (as defined in the Indenture) of the Company.
(t) The Administrative Trustee of the Trust has been duly authorized
by the Company to execute and deliver the Trust Agreement.
(u) The accountants who certified the financial statements included
in the Registration Statement and the Final Supplemented Prospectus are
independent public accountants within the meaning of the Securities Act and the
rules and regulations promulgated thereunder.
(v) Neither Funding, the Company, or any of the Company's significant
subsidiaries (each a "Significant Subsidiary") as defined in Rule 405 of
Regulation C of the rules and regulations promulgated under the Securities Act
is in violation of its articles of incorporation or by-laws or in breach or
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any material contract, mortgage, loan
agreement, lease, note or other instrument to which it is a party or by which it
or any of them may be bound or to which any of their properties may be subject,
or any rule, order, law, administrative regulation or administrative or court
order, except to the extent set forth in the Registration Statement and the
Final Supplemented Prospectus.
(w) Each of the Company and Funding is exempt from any provisions
imposed upon it as a "holding company" or a "subsidiary company" of a "holding
company", respectively, by the Public Utilities Holding Company Act of 1935, as
amended (the "1935 Act"), except Section 9(a)(2) thereof.
(x) Neither the Company, Funding nor the Trust is an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended (the "1940 Act"), and is not
required to register or take any other action with respect to or under the 1940
Act by reason of the offering and sale of the Preferred Securities.
(y) The execution, delivery and performance by the Offerors of this
Agreement and by the Trust and Funding of the Trust Agreement, the Preferred
Securities, the Common Securities, the Junior Subordinated Notes, and by Funding
and the Company of the Indenture, and
7
<PAGE>
by the Company of the Guarantee Agreement, the Agreement as to Expenses and
Liabilities, the Preferred Securities Guarantee and the Notes Guarantee and the
consummation by the Offerors of the transactions contemplated herein and therein
and compliance by the Offerors with their respective obligations hereunder and
thereunder shall have been duly authorized by all necessary corporate action of
the Offerors and do not and will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under, the articles of
incorporation or by-laws of the Company or Funding or the Trust Agreement or the
related Certificate of Trust, any material contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the Trust,
Funding or the Company is a party, or by which it or any of them is bound or to
which any of their properties may be subject, or result in the violation of any
law, order, rule, administrative regulation or administrative or court decree
applicable to the Trust, Funding or the Company, of any court or of any Federal
or state regulatory body or administrative agency or other governmental body
having jurisdiction over the Trust, Funding or the Company or their respective
properties; and there are no proceedings, at law or in equity or before any
governmental agency or body, pending, or to the knowledge of the Company
threatened, which affect or may affect any of said transactions.
(z) No consent, approval, authorization or order of any court or
public board or body (including the Securities and Exchange Commission) is
required in connection with the issuance and sale of the Common Securities or
the offering of the Preferred Securities, the Junior Subordinated Notes, the
Preferred Securities Guarantee or the Notes Guarantee or the transactions
contemplated in this Agreement, except (A) such as may be required under the
Securities Act or the rules and regulations thereunder; (B) such as may be
required under the 1935 Act; (C) the qualification of the Trust Agreement, the
Preferred Securities Guarantee Agreement and the Indenture under the TIA; and
(D) such consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws.
(aa) Except as may be set forth in the Registration Statement and the
Final Supplemented Prospectus, there is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened against or affecting, the
Company or any of its subsidiaries (including Funding) which might result in any
material adverse change in the earnings, business affairs or business prospects
of the Company and its subsidiaries (including Funding) considered as one
enterprise, or which might materially and adversely affect the properties or
assets thereof or might materially and adversely affect the consummation of this
Agreement.
Section 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Trust, at
the price per security set forth in Schedule II hereto, the number of Preferred
Securities set forth in Schedule I opposite the name of such Underwriter, plus
any additional number of Preferred Securities that such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
8
<PAGE>
(b) The purchase price per Preferred Security to be paid by the
several Underwriters for the Preferred Securities shall be an amount equal to
the initial public offering price set forth on Schedule II, which is a fixed
price determined by agreement between the Representatives and the Offerors. As
compensation to the Underwriters for their commitments hereunder and in view of
the fact that the proceeds of the sale of the Preferred Securities will be used
to purchase the Junior Subordinated Notes of Funding, the Company hereby agrees
to pay on the Closing Date (as defined below) to the Representatives, for the
accounts of the several Underwriters, a commission per Preferred Security as set
forth on Schedule II for the Preferred Securities to be delivered by the Trust
hereunder on the Closing Date.
(c) Payment of the purchase price for, and delivery of certificates
for, the Preferred Securities shall be made at the offices of Jones, Day, Reavis
& Pogue, 599 Lexington Avenue, New York, New York 10022, at 10:00 A.M., New
York time, on __________,1999 (unless postponed in accordance with the
provisions of Section 10) or such other time, place or date as shall be agreed
upon by the Representatives, the Trust, Funding and the Company (such time and
date of payment and delivery being herein called the "Closing Date"). Payment
shall be made to the Trust, by wire transfer in federal funds at the Closing
Date, against delivery to the Representatives for the respective accounts of the
Underwriters of certificates for the Preferred Securities to be purchased by
them. Certificates for the Preferred Securities shall be in such denominations
and registered in such names as the Representatives may request in writing at
least two business days before the Closing Date. It is understood that each
Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Preferred Securities which it has agreed to purchase. The Representatives,
individually and not as Representatives of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Preferred Securities
to be purchased by any Underwriter whose funds have not been received by the
Closing Date, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(d) The certificate(s) for the Preferred Securities will be made
available for examination and packaging by the Representatives not later than
12:00 Noon, New York time, on the last business day prior to the Closing Date.
(e) On the Closing Date, the Company will pay, or cause to be paid,
the commission payable at such time to the Underwriters under Section 2(b)
hereof by wire transfer to the Representatives in federal funds.
Section 3. COVENANTS OF THE OFFERORS.
Each of the Offerors jointly and severally covenants with each
Underwriter as follows:
(a) The Offerors, on or prior to the Closing Date, will deliver to
the Underwriters conformed copies of the Registration Statement as originally
filed and of all amendments thereto, heretofore or hereafter made, including any
post-effective amendment (in each case including all exhibits filed therewith,
and including unsigned copies of each consent and certificate included therein
or filed as an exhibit thereto, except exhibits incorporated by reference,
unless specifically
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requested). As soon as the Company is advised thereof, it will advise the
Representatives orally of the issuance of any stop order under the Securities
Act with respect to the Registration Statement, or the institution of any
proceedings therefor, of which the Company shall have received notice, and will
use its be st efforts to prevent the issuance of any such stop order and to
secure the prompt removal thereof, if issued. The Offerors will deliver to the
Underwriters sufficient conformed copies of the Registration Statement, the
Prospectus and the Final Supplemented Prospectus and of all supplements and
amendments thereto (in each case without exhibits) for distribution to each
Underwriter and, from time to time, as many copies of the Prospectus and the
Final Supplemented Prospectus as the Underwriters may reasonably request for the
purposes contemplated by the Securities Act or the Exchange Act.
(b) The Offerors will furnish the Underwriters with copies of each
amendment and supplement to the Prospectus and the Final Supplemented Prospectus
relating to the offering of the Preferred Securities in such quantities as the
Underwriters may from time to time reasonably request. If, during the period
(not exceeding nine months) when the delivery of a prospectus shall be required
by law in connection with the sale of any Preferred Securities by an Underwriter
or dealer, any event relating to or affecting the Company, or of which the
Company shall be advised in writing by the Underwriters, shall occur, which in
the opinion of the Company or of Underwriters' counsel should be set forth in a
supplement to or an amendment of the Final Supplemented Prospectus in order to
make the Final Supplemented Prospectus not misleading in the light of the
circumstances when it is delivered, or if for any other reason it shall be
necessary during such period to amend or supplement the Final Supplemented
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Final Supplemented Prospectus in order to comply with the
Securities Act or the Exchange Act, the Company forthwith will (i) notify the
Underwriters to suspend solicitation of purchases of the Preferred Securities
and (ii) at its expense, make any such filing or prepare and furnish to the
Underwriters a reasonable number of copies of a supplement or supplements or an
amendment or amendments to the Final Supplemented Prospectus which will
supplement or amend the Final Supplemented Prospectus so that, as supplemented
or amended, it 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 Final Supplemented Prospectus is
delivered, not misleading or which will effect any other necessary compliance.
In case any Underwriter is required to deliver a prospectus in connection with
the sale of any Preferred Securities after the expiration of the period
specified in the preceding sentence, the Company, upon the request of such
Underwriter, will furnish to such Underwriter, at the expense of such
Underwriter, a reasonable quantity of a supplemented or amended prospectus, or
supplements or amendments to the Final Supplemented Prospectus, complying with
Section 10(a) of the Securities Act. During the period specified in the second
sentence of this subsection, the Company will continue to prepare and file with
the Commission on a timely basis all documents or amendments required under the
Exchange Act and the rules and regulations thereunder; provided, that the
--------
Company shall not file such documents or amendments without also furnishing
copies thereof prior to such filing to Jones, Day, Reavis & Pogue, and, at the
request of the Representatives, or any of them, the Representatives.
(c) The Offerors will endeavor, in cooperation with the Underwriters,
to qualify the Preferred Securities and, to the extent required or advisable,
the Preferred Securities Guarantee and the Junior Subordinated Notes, for
offering and sale under the applicable securities laws of such
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states and the other jurisdictions of the United States as the Representatives
may designate; provided, however, that none of the Offerors shall be obligated
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to qualify as a foreign corporation in any jurisdiction in which it is not so
qualified or to file a consent to service of process or to file annual reports
or to comply with any other requirements in connection with such qualification
deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to its security holders
as soon as practicable but not later than 45 days after the close of the period
covered thereby, an earnings statement of the Company (in form complying with
the provisions of Rule 158 of the rules and regulations under the Securities
Act) covering a twelve-month period beginning not later than the first day of
the Company's fiscal quarter next following the "effective date" (as defined in
Rule 158) of the Registration Statement.
(e) The Offerors will use their best efforts to effect the listing of
the Preferred Securities on the New York Stock Exchange; if the Preferred
Securities are exchanged for Junior Subordinated Notes, the Company will use its
best efforts to effect the listing of the Junior Subordinated Notes on any
exchange on which the Preferred Securities are then listed.
(f) During a period of 15 days from the date of this Agreement,
neither the Trust, Funding nor the Company will, without the Representative's
prior written consent, directly or indirectly, sell, offer to sell, grant any
option for the sale of, or otherwise dispose of, any preferred securities, any
security convertible into or exchangeable into or exercisable for preferred
securities or junior subordinated notes or any debt securities substantially
similar to the Junior Subordinated Notes or equity securities substantially
similar to the Preferred Securities (except for the Junior Subordinated Notes
and the Preferred Securities issued pursuant to this Agreement).
(g) As soon as practicable after the date of this Agreement, and in
any event within the time prescribed by Rule 424 under the Securities Act, to
file the Final Supplemented Prospectus with the Commission and to advise the
Representative of such filing and to confirm such advice in writing.
Section 4. PAYMENT OF EXPENSES.
The Company will pay all expenses incident to the performance of each
Offeror's obligations under this Agreement, including, but not limited to, the
expenses of (i) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto (ii) the preparation, issuance
and delivery of the certificate(s) for the Preferred Securities to the
Underwriters, (iii) the fees and disbursements of the Company's, Funding's and
the Trust's counsel and accountants, (iv) the qualification of the Preferred
Securities and, to the extent required or advisable, the Notes Guarantee, the
Preferred Securities Guarantee and the Junior Subordinated Notes, under
securities laws in accordance with the provisions of Section 3(c) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of any blue sky survey, (v) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto and of the Final Supplemented Prospectus and any amendments or
supplements thereto, (vi) the printing and delivery to the Underwriters of
copies of any blue sky survey, (vii) the
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fee of the National Association of Securities Dealers, Inc. in connection with
its review of the offering contemplated by this Agreement, if applicable, (viii)
the fees and expenses of the Debenture Trustee, including the fees and
disbursements of counsel for the Debenture Trustee in connection with the
Indenture and the Junior Subordinated Notes, (ix) the fees and expenses of the
Delaware Trustee, the Property Trustee and the Guarantee Trustee, including the
fees and disbursements of counsel for the Delaware Trustee in connection with
the Trust Agreement and the related Certificate of Trust, (x) the fees and
disbursements of Delaware counsel to the Trust and Funding, (xi) any fees
payable in connection with the rating of the Preferred Securities and Junior
Subordinated Notes, (xii) the fees and expenses incurred with the listing of the
Preferred Securities and, if applicable, the Junior Subordinated Notes on the
New York Stock Exchange, (xiii) the cost and charges of any transfer agent or
registrar and (xiv) the cost of qualifying the Preferred Securities and, if
applicable, the Junior Subordinated Notes with the Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the Underwriters
shall pay all other expenses incurred by them in connection with their offering
of the Preferred Securities, including fees and disbursements of their counsel,
Jones, Day, Reavis & Pogue.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS.
The obligations of the Underwriters to purchase and pay for the
Preferred Securities are subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement or any part thereof shall be in effect on the Closing Date and no
proceedings for that purpose shall be pending before, or to the knowledge of the
Company threatened by, the Commission on such date; and all requests for
additional information on the part of the Commission shall have been complied
with to the Representatives' reasonable satisfaction. If filing of the Final
Supplemented Prospectus, or any supplement thereto, is required pursuant to Rule
424, the Final Supplemented Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required by Rule 424.
(b) Orders of the Commission permitting the transactions contemplated
hereby substantially in accordance with the terms and conditions hereof shall be
in full force and effect and shall contain no provision unacceptable to the
Underwriters or the Company (but all provisions of such order or orders
heretofore entered, copies of which have heretofore been delivered to the
Representatives, are deemed acceptable to the Underwriters and the Company and
all provisions of such order or orders hereafter entered shall be deemed
acceptable to the Underwriters and the Company unless within 24 hours after
receiving a copy of any such order any party to this Agreement shall give notice
to the other parties to the effect that such order contains an unacceptable
provision).
(c) On the Closing Date the Representatives shall have received:
(1) The opinion, dated the Closing Date, of the Vice President
and General Counsel of the Company, substantially in the
form attached hereto as Schedule III.
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(2) The opinion, dated the Closing Date, of Richards, Layton &
Finger, P.A., Delaware counsel to the Trust and Funding,
substantially in the form attached hereto as Schedule IV.
(3) The opinion, dated the Closing Date, of Pepper Hamilton LLP,
Delaware counsel to the Delaware Trustee under the Trust
Agreement, substantially in the form attached hereto as
Schedule V.
(4) The opinion, dated the Closing Date, of Pepper Hamilton LLP,
counsel to the Property Trustee, the Guarantee Trustee and
the Debenture Trustee, substantially in the form attached
hereto as Schedule VI.
(5) The favorable opinion, dated as of the Closing Date, of
Jones, Day, Reavis & Pogue, counsel for the Underwriters, in
form and substance reasonably acceptable to the
Representatives.
(6) The opinion, dated the Closing Date, of Thelen Reid & Priest
LLP, tax counsel to the Company, substantially in the form
attached hereto as Schedule VII.
(d) In addition,
(1) (i) Neither the Company nor any of its subsidiaries
(including Funding) shall have sustained since the date of
the latest audited financial statements included or
incorporated by reference in the Prospectus as amended prior
to the date of this Agreement, any loss or interference with
its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the
Prospectus as amended prior to the date of this Agreement,
and (ii) since the respective dates as of which information
is given in the Prospectus as amended prior to the date of
this Agreement there shall not have been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries (including Funding) or any change, or any
development involving a prospective change, in or affecting
the general affairs, management, financial position,
shareholders' equity (or equivalent) or results of
operations of the Company and its subsidiaries (including
Funding), otherwise than as set forth or contemplated in the
Prospectus as amended prior to the date of this Agreement,
the effect of which, in any such case described in clause
(i) or (ii), is in the judgment of the Representatives so
material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner
contemplated in the Prospectus as amended.
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(2) On the Closing Date and at a time prior to the execution of
this Agreement, the Representatives shall have received from
KPMG Peat Marwick LLP, the independent accountants of the
Company who have certified the consolidated financial
statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement, a
letter dated the effective date of the Registration
Statement or the date of the most recent report filed with
the Commission containing consolidated financial statements
and incorporated by reference in the Registration Statement,
if the date of such report is later than such effective
date, a letter dated the date hereof if different than the
effective date, and a letter dated the Closing Date, to the
effect set forth in Schedule VIII hereto, and with respect
to the letter dated the Closing Date, as to such other
matters as the Representatives may reasonably request and in
form and substance satisfactory to the Representatives.
(3) On the Closing Date, Jones, Day, Reavis & Pogue, counsel for
the Underwriters, shall have been furnished with such
documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and
sale of the Preferred Securities as herein contemplated and
related proceedings, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment
of any of the conditions, herein contained; and all
proceedings taken by the Offerors, in connection with the
issuance and sale of the Preferred Securities as herein
contemplated shall be satisfactory in form and substance to
the Representatives and Jones, Day, Reavis & Pogue, counsel
for the Underwriters.
(4) On the Closing Date, the Preferred Securities shall have
been approved for listing on the New York Stock Exchange,
subject to notice of issuance.
(5) On the Closing Date, the Representative shall have received
a certificate of a Vice President of the Company certifying
that a Special Event (as defined in the Prospectus) shall
not have occurred and be continuing.
(6) No amendment or supplement to the Registration Statement,
the Prospectus or the Final Supplemented Prospectus filed
subsequent to the date of this Agreement (including any
filing made by the Company pursuant to Section 13 or 14 of
the Exchange Act) shall be unsatisfactory in form to Jones,
Day, Reavis & Pogue.
(7) The Offerors shall have performed their respective
obligations when and as provided under this Agreement.
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(8) On or after the date of this Agreement, no downgrading shall
have occurred in the rating accorded the Company's debt
securities or preferred stock by any "nationally recognized
statistical rating organization" as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the
Securities Act, and (ii) no such organization shall have
publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of
the Company's debt securities or preferred stock.
(9) On or after the date of this Agreement, there shall not have
occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New
York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the New
York Stock Exchange; (iii) a general moratorium on
commercial banking activities declared by either Federal or
New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or
war, if the effect of any such event specified in this
clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Preferred Securities on the
terms and in the manner contemplated in the Prospectus.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Offerors at any time prior to the
Closing Date, and such termination shall be without liability of any party to
any other party except as provided in Sections 4, 7, 9(c) and 10 hereof.
Section 6. CONDITIONS OF THE OBLIGATIONS OF THE OFFERORS.
The obligations of the Offerors shall be subject to the conditions set
forth in the first sentence of Section 5(a) and in Section 5(b). In case such
conditions shall not have been fulfilled, this Agreement may be terminated by
the Company by mailing or delivering written notice thereof to the Underwriters.
Any such termination shall be without liability of any party to any other party
except as otherwise provided in Sections 4, 7, 9(c) and 10 hereof.
Section 7. INDEMNIFICATION.
(a) The Offerors jointly and severally agree to indemnify and hold
harmless each of the Underwriters and each person, if any, who controls any such
Underwriter within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange 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, Exchange Act or otherwise, and to reimburse the
Underwriters and such controlling person or persons, if any, for any reasonable
legal or other expenses incurred by them in connection with investigating or
defending any actions as such expenses are incurred, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon any
untrue statement or
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alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the Prospectus or the Final Supplemented
Prospectus, in any amendments or any supplements thereto, or any filings
pursuant to Section 13 or 14 of the Exchange Act which are incorporated therein
by reference, or arise out of or are based upon any omission or alleged omission
to state therein a material fact or necessary to make the statements therein not
misleading; provided, however, that none of the Offerors shall be liable in any
-------- -------
such case to the extent that such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement,
the Prospectus or the Final Supplemented Prospectus in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives expressly for use in the Prospectus as amended or
supplemented.
(b) The Company agrees to indemnify the Trust against all loss,
liability, claim, damage and expense whatsoever, as due from the Trust under
Section 7(a) hereunder.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, Funding, their directors and such of their
officers who have signed the Registration Statement, the Trust and each person,
if any, who controls the Offerors within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act to the same extent and upon
the same terms as the indemnity agreement of the Offerors set forth in Section
7(a) hereof, provided, however, that none of the Underwriters shall be liable in
-------- -------
any such case to the extent that such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement, the Prospectus or the Final Supplemented Prospectus in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly for use in the
Prospectus as amended or supplemented.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify such
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and the indemnified party
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action
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or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include any statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(e) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Offerors on the one hand and the Underwriters
on the other from the offering of the Preferred Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (d) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Offerors on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Offerors on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Offerors bear to the total underwriting
discounts and commissions received by the Underwriters. The 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 the Offerors on the
one hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Offerors and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this subsection (e) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (e). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Preferred Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the
Underwriters in this subsection (e) to contribute are several in proportion to
their respective underwriting obligations with respect to the Preferred
Securities and not joint.
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(f) The obligations of the Offerors under this Section 7 shall be in
addition to any liability which the Offerors may otherwise have; and the
obligations of the Underwriters under this Section 7 shall be in addition to any
liability which the respective Underwriters may otherwise have.
Section 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers or Trustees of the Offerors
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by, or on behalf of the Offerors and shall survive
delivery of the Preferred Securities to the Underwriters.
Section 9. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS.
(a) If one or more of the Underwriters shall fail on the Closing
Date to purchase the Preferred Securities that it or they are obligated to
purchase under this Agreement (the "Defaulted Securities"), the Representatives
shall have the right, within 36 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 36-hour
period, then the Company shall be entitled to a further period of 36 hours
within which to procure another party or parties satisfactory to the
Representatives to purchase such Defaulted Securities on such terms. If, within
the respective prescribed period, the Representatives notify the Company that
they have so arranged for the purchase of such Defaulted Securities, or the
Company notifies the Representatives that it has so arranged for the purchase of
such Defaulted Securities, the Representatives or the Company shall have the
right to postpone the Closing Date for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to promptly file any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary.
(b) If, after giving effect to any arrangements for the purchase of
the Defaulted Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate number of such Defaulted Securities which remains unpurchased does not
exceed one-eleventh of the aggregate number of the Securities, as the case may
be, to be purchased at the Closing Date, then the Company shall have the right
to require each non-defaulting Underwriter to purchase the number of Securities
which such Underwriter agreed to purchase pursuant to Schedule I hereto, and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Securities which such Underwriter agreed to
purchase pursuant to such Schedule) of the Securities, of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
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(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the Representatives
and the Company as provided in subsection (a) above, the aggregate number of
Securities which remains unpurchased exceeds one-eleventh of the aggregate
number of the Securities to be purchased at the Closing Date, as referred to in
subsection (b) above, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Underwriters to purchase
Securities of a defaulting Underwriter or Underwriters, then this Agreement
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company or the Guarantor, except for the expenses to be borne
by the Guarantor and the Underwriters as provided in Section 4 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
Section 10. TERMINATION OF AGREEMENT.
If this Agreement shall be terminated pursuant to Section 9 hereof,
none of the Offerors shall then be under any liability to any Underwriter with
respect to the Securities except as provided in Sections 4 and 7 hereof; but, if
for any other reason, Securities are not delivered by or on behalf of the Trust
or the Company as provided herein, the Company will reimburse the Underwriters
through the Representatives for all out-of-pocket expenses approved in writing
by the Representatives, including fees and disbursements of Jones, Day, Reavis &
Pogue, counsel to the Underwriters, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of such Preferred
Securities, but the Offerors shall then be under no further liability to any
Underwriter with respect to such Securities except as provided in Sections 4 and
7 hereof.
Section 11. NOTICES.
In all dealings hereunder, the Representatives shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by such of the
Representatives, if any, as may be designated for such purpose.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if sent by mail, telex or facsimile
transmission, if to the Underwriters, to the Representatives c/o: Goldman,
Sachs & Co., 85 Broad Street, New York, New York 10004, Facsimile (___) ___-
____, Attention: __________, Registration, and if to the Trust, 300 Delaware
Avenue, Suite 319, Wilmington, Delaware 19801, Facsimile (___) ___-____,
Attention: __________, and if to the Company, One Progress Plaza, St.
Petersburg, Florida 33701, Facsimile (727) 820-5918, Attention: Treasurer, and
if to Funding, 300 Delaware Avenue, Suite 319, Wilmington, Delaware 19801,
Facsimile (___) ___-____, Attention: ____________.
Section 12. PARTIES.
This Agreement shall inure solely to the benefit of and be binding
upon the Underwriters, the Trust, Funding, the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Trust, Funding and the Company and their
19
<PAGE>
respective successors and the controlling persons and officers, directors and
trustees referred to in Section 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
Underwriters and the Trust, Funding and the Company and their respective
successors, and said controlling persons and officers, directors and trustees
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Preferred Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
Section 13. GOVERNING LAW AND TIME.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed in said State. Except as otherwise set forth herein, specified times
of day refer to New York City time.
Section 14. COUNTERPARTS.
This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Trust, Funding and the Company a
counterpart hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement among the Underwriters and the Trust, Funding and the
Company in accordance with its terms.
Very truly yours,
FLORIDA PROGRESS CORPORATION
By:_________________________________
Title:______________________________
FLORIDA PROGRESS FUNDING CORPORATION
By:_________________________________
Title:______________________________
20
<PAGE>
FPC CAPITAL I
__________________________________________
By: Florida Progress Funding Corporation,
as Depositor
By:__________________________________
Title:_______________________________
CONFIRMED AND ACCEPTED,
as of the date first above written
GOLDMAN, SACHS & CO.
__________________________________
(Goldman, Sachs & Co.)
SALOMON SMITH BARNEY INC.
__________________________________
(Salomon Smith Barney Inc.)
For themselves and as Representatives of the other Underwriters named in
Schedule I hereto.
21
<PAGE>
EXHIBIT A
["BLOOD LETTER" LANGUAGE TO COME]
22
<PAGE>
SCHEDULE I
NAME OF UNDERWRITER NUMBER OF SECURITIES
Goldman, Sachs & Co.
Salomon Smith Barney Inc.
TOTAL _________________
<PAGE>
SCHEDULE II
Initial public offering price per Preferred Security (and purchase price per
security to be paid by the several Underwriters): $____________________
Compensation per Preferred Security to be paid by the Company to the several
Underwriters in respect of their commitments: $.7875 for Preferred Securities
sold to any single purchaser purchasing 10,000 or more Preferred Securities, and
$.50 for Preferred Securities sold to other purchasers.
<PAGE>
SCHEDULE III
[LETTERHEAD OF FLORIDA PROGRESS CORPORATION]
_____, 1999
Goldman, Sachs & Co.,
Salomon Smith Barney Inc.,
as Representatives
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
FPC CAPITAL I
____ % CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES, SERIES A
Ladies and Gentlemen:
I have acted as counsel to Florida Progress Corporation (the
"Company") in connection with (i) the formation of (a) FPC Capital I, a Delaware
statutory business trust (the "Trust"), pursuant to the Amended and Restated
Trust Agreement dated as of __________, 1999 among Florida Progress Funding
Corporation, a Delaware corporation ("Funding") and the trustees named therein
(the "Trust Agreement") and (b) Funding (Funding, along with the Company and the
Trust being hereinafter sometimes referred to as the "Offerors"); (ii) the
Trust's issuance and sale of Cumulative Quarterly Income Preferred Securities,
Series A evidencing approximately a 97% undivided interest in the Trust (the
"Preferred Securities"); (iii) the Trust's issuance and sale of Common
Securities evidencing approximately a 3% undivided interest in the Trust (the
"Common Securities"); (iv) Funding's issuance and sale to the Trust of
$___________ of its ___% Series A Junior Subordinated Deferred Interest Notes
(the "Notes") pursuant to an Indenture dated as of ____________ 1, 1999, among
Funding, the Company and The First National Bank of Chicago, as trustee
(collectively, the "Indenture"); (v) the Agreement as to Expenses and
Liabilities dated as of __________ , 1999, between the Company and the Trust
(the "Agreement as to Expenses and Liabilities"); (vi) its issuance of a
guarantee (the "Preferred Securities Guarantee") of the Preferred Securities
pursuant to a Guarantee Agreement dated as of __________ 1, 1999 (the "Guarantee
Agreement") between the Company and The First National Bank of Chicago, as
trustee; and (vii) its issuance of a guarantee (the "Notes Guarantee") of the
Notes pursuant to the terms of the Indenture. The Preferred Securities are being
sold to you today pursuant to the terms of a Underwriting Agreement dated
__________ 1, 1999 (the "Underwriting Agreement"), among the Company, Funding,
the Trust and the underwriters named in Schedule I thereto (the "Underwriters")
for whom you are acting as Representatives. This opinion is being delivered to
you as Representatives pursuant to Section 5(c)(1) thereof.
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Underwriting Agreement.
<PAGE>
In rendering the opinions expressed below, I and members of the
Company's Legal Department have examined the Registration Statement on Form S-3
(Nos. _____________) pertaining to the Preferred Securities (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "Securities
Act") and the prospectus dated ___________, 1999, as supplemented by a
prospectus supplement dated __________, 1999 (the "Prospectus"), which pursuant
to Form S-3 incorporates by reference the Annual Report on Form 10-K of the
Company for the fiscal year ended December 31, 1998, as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
In addition, I have examined, and have relied as to matters of fact
upon, the documents delivered to you at the closing (except the certificates
representing the Preferred Securities and the Notes, of which I have examined
specimens), and I have made such other and further investigations as we deemed
necessary to express the opinions hereinafter set forth. In such examination, I
have assumed the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified
or photostatic copies, and the authenticity of the originals of such latter
documents.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, I am of the opinion that:
1. The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Florida with power
and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Final Supplemented
Prospectus and to enter into and perform its obligations under the Underwriting
Agreement, the Indenture and the Guarantee Agreement and to issue and deliver
the Preferred Securities Guarantee and the Notes Guarantee. The Company is duly
qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which its ownership or lease of substantial properties
or the conduct of its business requires such qualification and in which the
failure to so qualify and be in good standing would materially adversely affect
its business or financial condition.
2. Funding has been duly incorporated and is validly existing and in
good standing as a corporation under the laws of the State of Delaware with
power and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Final Supplemented
Prospectus and to enter into and perform its obligations under the Underwriting
Agreement, the Trust Agreement and the Indenture and to purchase, own and hold
the Common Securities issued by the Trust and to issue the Notes. Funding is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which its ownership or lease of substantial
properties or the conduct of its business requires such qualification and in
which the failure to so qualify and be in good standing would materially
adversely affect its business or financial condition.
3. The execution, delivery and performance by the Company and
Funding of the Underwriting Agreement have been duly authorized by all necessary
corporate action, and the Underwriting Agreement has been duly executed and
delivered by the Company and Funding.
III-2
<PAGE>
4. All orders, consents or other authorizations or approvals of the
Commission legally required for the issuance and delivery of the Notes, the
Preferred Securities Guarantee and the Notes Guarantee and the issuance and sale
of the Preferred Securities have been obtained; such orders are sufficient for
the issuance and delivery of the Notes, the Common Securities, the Preferred
Securities Guarantee and the Notes Guarantee and the issuance and sale of the
Preferred Securities; the issuance and delivery of the Notes, the Preferred
Securities Guarantee and the Notes Guarantee and the issuance and sale of the
Preferred Securities conform in all material respects with the terms of such
orders; and no other order, consent or other authorization or approval of any
United States federal governmental body (other than in connection or in
compliance with the provisions of the securities or "blue sky" laws of any
jurisdiction, as to which we express no opinion) is legally required for the
issuance and delivery of the Notes, the Preferred Securities Guarantee and the
Notes Guarantee and the issuance and sale of the Preferred Securities in
accordance with the terms of the Underwriting Agreement.
5. The Indenture has been duly authorized, executed and delivered
by Funding and the Company and, assuming the due authorization, execution and
delivery thereof by the Debenture Trustee, constitutes a valid and legally
binding instrument of each of Funding and the Company, enforceable against each
of Funding and the Company in accordance with its terms, subject to the
qualifications that the enforceability of Funding's and the Company's
obligations under the Indenture may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and each of the Indenture and the Notes Guarantee conforms as to legal matters
in all material respects to the description thereof in the Prospectus.
6. The Notes have been duly authorized and executed by Funding
and, when authenticated by the Debenture Trustee in the manner provided in the
Indenture and delivered against payment therefor, will constitute valid and
binding obligations of Funding, enforceable against Funding in accordance with
their terms, subject to the qualifications that the enforceability of Funding's
obligations under the Notes may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and the Notes conform as to legal matters in all material respects to the
description thereof in the Prospectus.
7. The Guarantee Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding instrument
of the Company, enforceable against the Company in accordance with its terms,
subject to the qualifications that the enforceability of the Company's
obligations under the Guarantee Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Guarantee Agreement conforms as to legal matters in
all material respects to the description thereof in the Prospectus.
8. The Agreement as to Expenses and Liabilities has been duly
authorized, executed and delivered by the Company and constitutes a valid and
legally binding instrument of the
III-3
<PAGE>
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Agreement as to Expenses and Liabilities may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Agreement as to Expenses and Liabilities conforms as
to legal matters in all material respects to the description thereof in the
Prospectus.
9. Each of the Indenture, the Guarantee Agreement and the Trust
Agreement has been duly qualified under the Trust Indenture Act of 1939, as
amended.
10. Neither the Company, Funding nor the Trust is an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended (the "1940 Act"), or is
required to register or take any other action with respect to or under the 1940
Act by reason of the offering and sale of the Preferred Securities.
11. The Trust Agreement has been duly authorized, executed and
delivered by Funding, and, assuming due authorization, execution and delivery
thereof by the Trustee, constitutes a valid and binding obligation of Funding,
enforceable against Funding in accordance with its terms, subject to the
qualifications that the enforceability of Funding's obligations under the Trust
Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally, and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
12. All of the issued and outstanding Common Securities of the Trust
are directly owned by Funding, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equitable right.
13. To the best of my knowledge and other than as set forth in the
Prospectus (including the documents incorporated therein by reference), there
are no legal or governmental proceedings pending to which, Funding, the Company
or any of its subsidiaries is a party or of which any property of Funding, the
Company or any of its subsidiaries is the subject which, if determined adversely
to Funding, the Company or such subsidiary, as the case may be, would
individually or in the aggregate have a material adverse effect on the current
or future consolidated financial position, shareholders' equity (or equivalent)
or results of operations of Funding or the Company and its subsidiaries; and to
the best of my knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
14. Neither Funding nor the Company nor any of their subsidiaries is
in violation of its Articles of Incorporation (or equivalent) or By-laws, each
as currently constituted, or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties may be
bound.
15. The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and related
schedules therein, as to which I express
III-4
<PAGE>
no opinion), when they became effective or were filed with the Commission, as
the case may be, complied as to form in all material respects with the
requirements of the Securities Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder; and I have no reason to
believe that any of such documents, when they became effective or were so filed,
as the case may be, contained, in the case of a registration statement which
became effective under the Securities Act, an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the case of
other documents which were filed under the Securities Act or the Exchange Act
with the Commission, 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 when such documents were so
filed, not misleading.
16. The Registration Statement and the Prospectus as amended or
supplemented, and any further amendments and supplements thereto made by the
Company prior to the date hereof (other than the financial statements and
related schedules therein, as to which I express no opinion), comply as to form
in all material respects with the requirements of the Securities Act and the
rules and regulations thereunder; although I do not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Prospectus or the Final Supplemented Prospectus,
except for those statements referred to in the opinions in paragraphs 5,6,7 and
8 above, I have no reason to believe that, as of its effective date, the
Registration Statement (other than the financial statements and related
schedules therein, as to which I express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that, as of its date, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to the date hereof
(other than the financial statements and related schedules therein, as to which
I express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading or
that, as of the date hereof, either the Registration Statement or the Prospectus
as amended or supplemented or any further amendment or supplement thereto made
by the Company prior to the date hereof (other than the financial statements and
related schedules therein, as to which I express no opinion) contains an untrue
statement of a material fact or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; and I do not know of any amendment to the Registration
Statement required to be filed or any contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration Statement or the
Prospectus as amended or supplemented which are not filed or incorporated by
reference or described as required.
I am a member of the State Bar of Florida and do not express any
opinion herein concerning any law other than the law of the State of Florida and
the federal law of the United States.
This opinion is rendered to you in connection with the above-described
transaction. This opinion may not be relied upon by you for any other purpose,
or relied upon by or furnished to any other person without our prior written
consent, except that Jones, Day, Reavis & Pogue may rely
III-5
<PAGE>
on this opinion in giving their opinion pursuant to Section 5(c) of the
Underwriting Agreement insofar as such opinion relates to matters of Florida
law.
Yours very truly,
[TO BE SIGNED BY THE VICE PRESIDENT AND
GENERAL COUNSEL OF THE COMPANY]
III-6
<PAGE>
SCHEDULE IV
[LETTERHEAD OF RICHARDS, LAYTON & FINGER, P.A.]
______________, 1999
Goldman, Sachs & Co.,
Salomon Smith Barney Inc.,
as Representatives
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
FPC CAPITAL I
____ % CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES, SERIES A
Ladies and Gentlemen:
We have acted as special Delaware counsel for Florida Progress Funding
Corporation, a Delaware corporation ("Funding") and FPC Capital I, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
This opinion is being furnished to you pursuant to Section 5(c)(2) of the
Underwriting Agreement, dated ______________, 1999 (the "Underwriting
Agreement"), among Florida Progress Corporation, a Florida corporation (the
"Company"), Funding, the Trust, you and the other Underwriters listed in
Schedule I thereto.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
a. The Certificate of Trust of the Trust, dated March 22, 1999
(the "Original Certificate"), as filed in the office of the Secretary of State
of the State of Delaware (the "Secretary of State") on March 22, 1999;
b. The Trust Agreement of the Trust, dated as of March 22, 1999
among Funding and the trustees of the Trust named therein;
c. The Amended and Restated Trust Agreement, dated as of _________,
1999 (including Exhibits C and E thereto) (the "Trust Agreement"), among
Funding, the trustees of the Trust named therein, and the holders, from time to
time, of the undivided beneficial interests in the assets of the Trust;
d. The Underwriting Agreement;
e. The Prospectus, dated __________ __, 1999, as supplemented by a
prospectus supplement dated __________, 1999 (the "Prospectus"), relating to the
__% Cumulative Quarterly
<PAGE>
Income Preferred Securities, Series A of the Trust representing preferred
undivided beneficial interests in the assets of the Trust (each, a "Preferred
Security" and collectively, the "Preferred Securities");
f. A Certificate of Good Standing for the Trust, dated ___________
__, 1999, obtained from the Secretary of State;
g. A certificate of an officer of Funding, attaching inter alia
copies of Funding's Certificate of Incorporation and By-laws;
h. The Indenture dated as of _________ 1,1999 by and among Funding,
the Company and The First National Bank of Chicago, as trustee (the
"Indenture"), which includes the guarantee of the Notes (as hereinafter defined)
by the Company (the "Notes Guarantee Agreement");
i. A specimen of the Series A __% Junior Subordinated Deferred
Interest Notes (the "Notes") issued pursuant to the Indenture;
j. The Guarantee Agreement, dated as of _____________ 1, 1999 by and
between the Company and The First National Bank of Chicago, as trustee (the
"Guarantee Agreement" and, collectively with the Notes Guarantees, the
"Guarantees"); and
k. A Certificate of Good Standing for Funding dated ____________,
1999, obtained from the Secretary of State.
Capitalized terms used herein and not otherwise defined are used as
defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (k) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (k) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) the Trust Agreement
constitutes the entire agreement among the parties thereto with respect to the
subject matter thereof, including with respect to the creation, operation and
termination of the Trust, and the Trust Agreement and the Certificate are in
full force and effect and have not been amended, (ii) except to the extent
provided in paragraphs 1 and 2 below, the due organization or due formation or
due creation, as the case may
IV-2
<PAGE>
be, and valid existence in good standing of each party to the documents examined
by us under the laws of the jurisdiction governing its organization or formation
or creation, (iii) the legal capacity of natural persons who are parties to the
documents examined by us, (iv) except to the extent provided in paragraph 8
below, the power and authority of each of the parties to the documents examined
by us to execute and deliver, and to perform its obligations under, such
documents, (v) except to the extent provided in paragraph 8 below, the due
authorization, execution and delivery by all parties thereto of all documents
examined by us, (vi) the receipt by each Person to whom a Trust Security is to
be issued by the Trust (collectively, the "Trust Security Holders") of a Trust
Securities Certificate for such Trust Security and the payment for the Trust
Security acquired by it, in accordance with the Trust Agreement and the
Prospectus, and (vii) the issuance and sale of the Trust Securities to the Trust
Security Holders in accordance with the Trust Agreement and the Prospectus. We
have not participated in the preparation of the Prospectus.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del. C.
(S)(S) 3801, et seq. (the "Business Trust Act"), and all filings required under
the laws of the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made.
2. Funding has been duly incorporated and is validly existing and in
good standing as a corporation under the laws of the State of Delaware and has
due corporate power and authority under the General Corporation Laws of the
State of Delaware to enter into and perform its obligations under the
Underwriting Agreement, the Trust Agreement and the Indenture and to purchase,
own and hold the Common Securities issued by the Trust and to issue the Notes.
3. Under the Business Trust Act and the Trust Agreement, the Trust
has the business trust power and authority to (i) own property and conduct its
business, all as described in the Prospectus, (ii) execute and deliver, and to
perform its obligations under, the Underwriting Agreement, (iii) issue and
perform its obligations under the Trust Securities, and (iv) perform its
obligations under the Trust Agreement.
4. The Trust Securities have been duly authorized by the Trust
Agreement and will be duly and validly issued undivided beneficial interests in
the assets of the Trust. Subject to
IV-3
<PAGE>
the qualifications set forth in paragraph 6 below, the Preferred Securities will
be fully paid and nonassessable undivided beneficial interests in the assets of
the Trust. Under the Business Trust Act and the Trust Agreement, the Trust
Securities are not subject to any preemptive or other similar rights.
5. Under the Business Trust Act and the Trust Agreement, the
execution, delivery and performance by the Trust of the Underwriting Agreement
has been duly authorized by all necessary business trust action on the part of
the Trust, and the Underwriting Agreement has been duly executed and delivered
by the Trust.
6. No authorization, approval, consent or order of any Delaware
court or Delaware governmental authority or Delaware agency is required to be
obtained by the Trust, the Company or Funding solely as a result of (i) the
issuance and sale of the Preferred Securities, (ii) the issuance and delivery of
the Notes and (iii) the issuance and delivery of the Guarantees.
7. The Persons to whom Preferred Securities are to be issued by the
Trust (collectively, the "Preferred Security Holders"), as beneficial owners of
the Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. We note that the Preferred
Security Holders may be obligated, pursuant to the Trust Agreement, to (i)
provide indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of Preferred Securities
Certificates and the issuance of replacement Preferred Securities Certificates
and (ii) provide security or indemnity in connection with requests of or
directions to the Property Trustee to exercise its rights and powers under the
Trust Agreement.
8. The Trust Agreement constitutes a valid and binding obligation of
the Trustees, and is enforceable against the Trustees, in accordance with its
terms.
9. The issuance and sale by the Trust of the Trust Securities, the
execution, delivery and performance by the Trust of the Underwriting Agreement
and the Trust Agreement, the consummation by the Trust of the transactions
contemplated by the Underwriting Agreement and the Trust Agreement and
compliance by the Trust with its obligations thereunder do not violate (i) any
of the provisions of the Certificate or the Trust Agreement, (ii) any applicable
Delaware law or Delaware administrative regulation, (iii) any contract,
indenture, mortgage, loan agreement, deed of trust, note, lease or any other
agreement or instrument known to us to which the Trust is a party or by which it
may be bound or to which any of its properties may be subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would not
have a material adverse effect on the condition (financial or otherwise) of the
Trust) or (iv) any judgment, order or decree known to us of any government,
governmental instrumentality, or court, domestic or foreign, or any regulatory
body or administrative agency or other governmental body having jurisdiction
over the Trust or any of its properties; and to the best of our knowledge the
Trust is not a party to or otherwise bound by any agreement other than those
which are described in the Prospectus.
10. The Preferred Securities conform as to legal matters in all
material respects to the description thereof in the Prospectus.
IV-4
<PAGE>
The opinion expressed in paragraph 8 above is subject as to
enforcement, to the effect upon the Trust Agreement of (i) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation, fraudulent
conveyance and other similar laws relating to or affecting the rights and
remedies of creditors generally, (ii) principles of equity, including applicable
law relating to fiduciary duties (regardless of whether considered and applied
in a proceeding in equity or at law), and (iii) the effect of applicable public
policy on the enforceability of provisions relating to indemnification.
We consent to your relying as to matters of Delaware law upon this
opinion in connection with the Underwriting Agreement. We consent to the law
firm of Jones, Day, Reavis & Pogue and the Vice President and General Counsel of
the Company relying as to matters of Delaware law upon this opinion in
connection with opinions to be rendered by them pursuant to the Underwriting
Agreement. Except as stated above, without our prior written consent, this
opinion may not be furnished or quoted to, or relied upon by, any other Person
for any purpose.
Very truly yours,
[TO BE SIGNED BY RICHARDS, LAYTON & FINGER,
P.A.]
IV-5
<PAGE>
SCHEDULE V
[LETTERHEAD OF PEPPER HAMILTON LLP]
______________, 1999
Goldman, Sachs & Co.,
Salomon Smith Barney Inc.,
as Representatives
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
FPC CAPITAL I
____ % CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES, SERIES A
Ladies and Gentlemen:
We have acted as special Delaware counsel to First Chicago Delaware
Inc., a Delaware banking corporation ("Trustee"), solely for purposes of this
opinion in connection with FPC Capital Trust I, a business trust existing under
the laws of the State of Delaware (the "Trust") pursuant to the Trust Agreement,
dated as of March 22, 1999, as amended and restated by the Amended and
Restated Trust Agreement, dated as of _____________ 1, 1999 among Trustee,
Florida Progress Funding Corporation ("Funding"), the other trustees named
therein and the holders from time to time of the undivided beneficial interests
in the assets of the Trust (collectively, the "Trust Agreement"). This opinion
is being delivered to you pursuant to Section 5(c)(3) of the Underwriting
Agreement, dated ___________, 1999 (the "Underwriting Agreement"), among you and
the several Underwriters named in Schedule I thereto, Florida Progress
Corporation, Funding and the Trust, pursuant to which the $_______________ ___%
Cumulative Quarterly Income Preferred Securities, Series A of the Trust will be
sold. All capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Underwriting Agreement.
We have examined an original or a copy of the Trust Agreement. We
have also examined originals or copies of such other documents and such
corporate records, certificates and other statements of governmental officials
and corporate officers and other representatives of Trustee as we have deemed
necessary or appropriate for the purposes of this opinion. Moreover, as to
certain facts material to the opinions expressed herein, we have relied upon the
representations and warranties contained in the documents referred to in this
paragraph.
Based upon the foregoing and upon an examination of such questions of
law as we have deemed necessary or appropriate, and subject to the assumptions,
exceptions and qualifications set forth below, we advise you that, in our
opinion:
<PAGE>
1. Trustee is duly incorporated and is validly existing in good
standing as a banking corporation with trust powers under the laws of the State
of Delaware and has the power and authority to execute, deliver and perform its
obligations under the Trust Agreement.
2. The Trust Agreement has been duly authorized, executed and
delivered by Trustee and constitutes a legal, valid and binding obligation of
Trustee, enforceable against Trustee in accordance with its terms.
3. The execution and delivery of, and performance of the terms of,
the Trust Agreement by Trustee, does not conflict with or constitute a breach
of, or default under, the charter or by-laws of Trustee.
4. No consent, approval or authorization of, or registration,
declaration or filing with, any court or governmental agency or body having
jurisdiction in the premises is required under Delaware law for the execution,
delivery or performance by Trustee of the Trust Agreement.
The foregoing opinions are subject to the following exceptions,
qualifications and assumptions:
(A) We are admitted to practice in the State of Delaware and we do
not hold ourselves out as being experts on the law of any other jurisdiction.
The foregoing opinions are limited to the laws of the State of Delaware and the
federal laws of the United States of America governing the banking and trust
powers of Trustee (except that we express no opinion with respect to (i) state
securities or blue sky laws and (ii) federal securities laws, including, without
limitation, the Securities Act of 1933, as amended the Securities Exchange Act
of 1934, as amended, the Trust Indenture Act of 1939, as amended, and the
Investment Company Act of 1940, as amended) and we have not considered and
express no opinion on the laws, rules and regulations of any other jurisdiction.
(B) The foregoing opinions regarding enforceability are subject to
(i) applicable bankruptcy, insolvency, moratorium, receivership, reorganization,
fraudulent transfer or conveyance and similar laws relating to and affecting the
rights and remedies of creditors generally, (ii) principles of equity
(regardless of whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of federal or state securities laws on the
enforceability of provisions relating to indemnification or contribution.
(C) We have assumed the due authorization, execution and delivery by
each of the parties thereto, other than Trustee, of the Trust Agreement, and
that each of such parties has the full power, authority and legal right to
execute, deliver and perform such document.
(D) We have assumed that all signatures (other than those of the
Delaware Trustee) on documents examined by us are genuine, that all documents
submitted to us as originals are authentic, and that all documents submitted to
us as copies or specimens conform with the originals, which facts we have not
independently verified.
V-2
<PAGE>
This opinion may be relied upon by you in connection with the matters
set forth herein, and without our prior written consent, may not be furnished or
quoted to, or relied upon by, any other person or entity for any purpose.
Very truly yours,
[TO BE SIGNED BY PEPPER HAMILTON LLP]
V-3
<PAGE>
SCHEDULE VI
[LETTERHEAD OF PEPPER HAMILTON LLP]
______________, 1999
Goldman, Sachs & Co.,
Salomon Smith Barney Inc.
as Representatives
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
FPC CAPITAL I
____ % CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES, SERIES A
Ladies and Gentlemen:
We have acted as counsel to The First National Bank of Chicago (the
"Bank") in connection with (a) the Junior Subordinated Indenture, dated as of
____________ 1, 1999 (the "Indenture"), among Florida Progress Corporation (the
"Company"), Florida Progress Funding Corporation ("Funding") and the Bank, as
Trustee, (b) the Guarantee Agreement dated as of ___________ 1, 1999 (the
"Guarantee Agreement") between the Company and the Bank, as Trustee, and (c) the
Amended and Restated Trust Agreement, dated as of _________ 1, 1999 (the "Trust
Agreement") among Funding, the Bank, as Property Trustee, First Chicago Delaware
Inc., as Delaware Trustee, and Progress Rail Services Corporation, as
Administrative Trustee.
In that connection, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, records and other
instruments as we have deemed necessary or appropriate for the purpose of this
opinion, including copies of the Indenture, the Trust Agreement, the Guarantee
Agreement and certain resolutions adopted by the Board of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
1. The Bank has been duly incorporated and is validly existing as a
banking corporation in good standing under the laws of the State of New York.
2. The Bank has the corporate trust power and authority to execute,
deliver and perform its duties under the Indenture, the Trust Agreement and the
Guarantee Agreement, has duly executed and delivered the Indenture, the Trust
Agreement and the Guarantee Agreement, and, insofar as the laws governing the
trust powers of the Bank are concerned and assuming due authorization, execution
and delivery thereof by the other parties thereto, each of the Indenture, the
<PAGE>
Trust Agreement and the Guarantee Agreement constitutes a legal, valid and
binding agreement of the Bank, enforceable against the Bank in accordance with
its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws affecting creditors' rights generally
from time to time in effect and subject, as to enforceability, to general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law).
3. The execution, delivery and performance by the Bank of the
Indenture, the Trust Agreement and the Guarantee Agreement do not conflict with
or constitute a breach of the charter or bylaws of the Bank.
4. No approval, authorization or other action by, or filing with,
any governmental authority of the United States of America or the State of New
York having jurisdiction over the trust powers of the Bank is required in
connection with the execution and delivery by the Bank of the Indenture, the
Trust Agreement or the Guarantee Agreement or the performance by the Bank of its
duties thereunder, except such as have been obtained, taken or made.
We are admitted to practice in the State of New York, and we express
no opinion as to matters governed by any laws other than the laws of the State
of New York and the Federal law of the United States of America. We are
furnishing this opinion to you solely for your benefit. This opinion is not to
be used, circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
[TO BE SIGNED BY PEPPER HAMILTON LLP]
VI-2
<PAGE>
SCHEDULE VII
[LETTERHEAD OF THELEN REID & PRIEST LLP]
______________, 1999
Goldman, Sachs & Co.,
Salomon Smith Barney Inc.
as Representatives
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
FPC CAPITAL I
____ % CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES, SERIES A
Ladies and Gentlemen:
Reference is made to the prospectus which constitutes part of the
registration statement on Form S-3 ("Registration Statement"), to be filed by
Florida Progress Corporation, Florida Progress Funding Corporation, FPC Capital
I, and FPC Capital II with the Securities and Exchange Commission on or about
the date hereof pursuant to the Securities Act of 1933, as amended, as
supplemented by a Prospectus Supplement dated on or about the date hereof (the
"Prospectus") for the registration of, among other things, Cumulative Quarterly
Income Preferred Securities ("QUIPS") of FPC Capital I.
We are of the opinion that the statements set forth under the caption
"United States Federal Income Tax Considerations" in the Prospectus constitute
an accurate description of the material United States federal income tax
considerations that may be relevant to the prospective purchasers of the QUIPS.
This opinion is limited to the facts and law at the date hereof.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to us in the Prospectus under the
caption "United States Federal Income Tax Considerations."
Very truly yours,
[TO BE SIGNED BY THELEN REID & PRIEST LLP]
<PAGE>
SCHEDULE VIII
Pursuant to Section 5(d)(2) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
1. They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Securities Act
and the applicable published rules and regulations thereunder;
2. In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or the
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 the related published rules and regulations thereunder;
and, if applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the consolidated interim financial statements, selected financial data, pro
forma financial information, financial forecasts and/or condensed financial
statements derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports thereon,
copies of which have been separately furnished to the Representatives;
3. They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus and/or
included in the Company's quarterly reports on Form 10-Q and Form 8-K
incorporated by reference into the Prospectus as indicated in their reports
thereon copies of which have been separately furnished to the
Representatives; and on the basis of specified procedures including
inquiries of officials of the Company who have responsibility for financial
and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i) below
comply as to form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the Exchange
Act and the related published rules and regulations;
4. The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for such five fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
<PAGE>
5. They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
6. On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or incorporated
by reference in the Company's Quarterly Reports on Form 10-Q or Form
8-K incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act and the related published rules and
regulations, or (ii) any material modifications should be made to the
unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in
the Prospectus or included in the Company's Quarterly Reports on Form
10-Q or Form 8-K incorporated by reference in the Prospectus, for them
to be in conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K or Form 8-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
VIII-2
<PAGE>
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the published rules
and regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net assets or other
items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in clause (E) there were any decreases
in consolidated revenues or operating income or the total consolidated
net income after preferred dividends or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(G) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus and
the limited procedures, inspection of minute books, inquiries and
other procedures referred to in paragraphs (iii) and (vi) above, they
have carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial information
specified by the Representatives which are derived from the general
accounting records of the Company and its subsidiaries, which appear
in the Prospectus (excluding documents incorporated by reference), or
in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of
the Company and its subsidiaries and have found them to be in
agreement.
VIII-3
<PAGE>
EXHIBIT 4.1
FLORIDA PROGRESS FUNDING CORPORATION
Issuer
FLORIDA PROGRESS CORPORATION
Guarantor
and
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
JUNIOR SUBORDINATED INDENTURE
Dated as of _____________ 1, 1999
<PAGE>
FLORIDA PROGRESS FUNDING CORPORATION
Reconciliation and tie between the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") (including cross-references to provisions of
Sections 310 to and including 317 which, pursuant to Section 318(c) of the Trust
Indenture Act are a part of and govern the Junior Subordinated Indenture dated
as of _________ 1, 1999 (the "Junior Subordinated Indenture") whether or not
physically contained therein), and the Junior Subordinated Indenture.
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
<S> <C>
(S) 310 (a)(1), (2) and (5)............................ 6.9
(a) (3)................................................. Not Applicable
(a)(4).................................................. Not Applicable
(b)..................................................... 6.8
6.10
(S) 311 (a)............................................ 6.13
(b)..................................................... 6.13
(b) (2)................................................. 7.3(a)
(c)..................................................... Not Applicable
(S) 312 (a)............................................ 7.1
7.2(a)
(b)..................................................... 7.2(b)
(c)..................................................... 7.2(c)
(S) 313 (a)............................................ 7.3(a)
(b)..................................................... 7.3(a), (b)
(c)..................................................... 7.3(a), 7.3(b)
(d)..................................................... 7.3(c)
(S) 314 (a)(1), (2) and (3)............................ 7.4
(a)(4).................................................. 10.5
(b)..................................................... Not Applicable
(c)(1).................................................. 1.2
(c)(2).................................................. 1.2
(c)(3).................................................. Not Applicable
(d)..................................................... Not Applicable
(e)..................................................... 1.2
(f)..................................................... Not Applicable
(S) 315 (a)............................................ 6.1(a)
(b)..................................................... 6.2
7.3(a), (b)
(c)..................................................... 6.1(b)
(d)..................................................... 6.1(c)
(d)(1).................................................. 6.1(a)(1)
(d)(2).................................................. 6.1(c)(2)
(d)(3).................................................. 6.1(c)(3)
(e)..................................................... 5.14
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
<S> <C>
(S) 316 (a)............................................ 1.1
(a)(1)(A)............................................... 5.12
(a)(1)(B)............................................... 5.13
(a)(2).................................................. Not Applicable
(b)..................................................... 5.8
(c)..................................................... 1.4(f)
(S) 317 (a)(1)......................................... 5.3
(a)(2).................................................. 5.4
(b)..................................................... 10.3
(S) 318 (a)............................................ 1.7
</TABLE>
[Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Junior Subordinated Indenture.]
<PAGE>
<TABLE>
<S> <C>
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION........................... 1
Section 1.1 Definitions..................................................... 1
Section 1.2 Compliance Certificate and Opinions............................. 9
Section 1.3 Forms of Documents Delivered to Trustee......................... 10
Section 1.4 Acts of Holders................................................. 10
Section 1.5 Notices, Etc. to Trustee, the Company and the Guarantor......... 12
Section 1.6 Notice to Holders; Waiver....................................... 13
Section 1.7 Conflict with Trust Indenture Act............................... 13
Section 1.8 Effect of Headings and Table of Contents........................ 13
Section 1.9 Successors and Assigns.......................................... 13
Section 1.10 Separability Clause............................................. 13
Section 1.11 Benefits of Indenture........................................... 13
Section 1.12 Governing Law................................................... 14
Section 1.13 Non-Business Days............................................... 14
ARTICLE II
SECURITY FORMS.................................................................... 14
Section 2.1 Forms Generally................................................. 14
Section 2.2 Form of Face of Security........................................ 15
Section 2.3 Form of Reverse of Security..................................... 18
Section 2.4 Additional Provisions Required in Global Security............... 21
Section 2.5 Form of Trustee's Certificate of Authentication................. 21
ARTICLE III
THE SECURITIES.................................................................... 22
Section 3.1 Title and Terms................................................. 22
Section 3.2 Denominations................................................... 24
Section 3.3 Execution, Authentication, Delivery and Dating.................. 24
Section 3.4 Temporary Securities............................................ 26
Section 3.5 Registration, Transfer and Exchange............................. 26
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities................ 28
Section 3.7 Payment of Interest; Interest Rights Preserved.................. 28
Section 3.8 Persons Deemed Owners........................................... 30
Section 3.9 Cancellation.................................................... 30
Section 3.10 Computation of Interest......................................... 30
Section 3.11 Deferrals of Interest Payment Dates............................. 30
Section 3.12 Right of Set-Off................................................ 31
Section 3.13 Agreed Tax Treatment............................................ 31
Section 3.14 Shortening or Extension of Stated Maturity...................... 32
Section 3.15 CUSIP Numbers................................................... 32
</TABLE>
<PAGE>
<TABLE>
<S> <C>
ARTICLE IV
SATISFACTION AND DISCHARGE............................................................. 32
Section 4.1 Satisfaction and Discharge of Indenture.............................. 32
Section 4.2 Application of Trust Money........................................... 33
Section 4.3 Satisfaction, Discharge and Defeasance of Securities of Any Series... 34
ARTICLE V
REMEDIES............................................................................... 36
Section 5.1 Events of Default.................................................... 36
Section 5.2 Acceleration of Maturity; Rescission and Annulment................... 37
Section 5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee........................................................... 38
Section 5.4 Trustee May File Proofs of Claim..................................... 38
Section 5.5 Trustee May Enforce Claim Without Possession of Securities........... 39
Section 5.6 Application of Money Collected....................................... 39
Section 5.7 Limitation on Suits.................................................. 40
Section 5.8 Unconditional Right of Holders to Receive Principal, Premium
and Interest; Direct Action by Holders of Preferred Securities....... 41
Section 5.9 Restoration of Rights and Remedies................................... 41
Section 5.10 Rights and Remedies Cumulative....................................... 41
Section 5.11 Delay or Omission Not Waiver......................................... 41
Section 5.12 Control by Holders................................................... 42
Section 5.13 Waiver of Past Defaults.............................................. 42
Section 5.14 Undertaking for Costs................................................ 42
Section 5.15 Waiver of Usury, Stay or Extension Laws.............................. 43
ARTICLE VI
THE TRUSTEE............................................................................ 43
Section 6.1 Certain Duties and Responsibilities.................................. 43
Section 6.2 Notice of Defaults................................................... 44
Section 6.3 Certain Rights of Trustee............................................ 44
Section 6.4 Not Responsible for Recitals or Issuance of Securities............... 45
Section 6.5 May Hold Securities.................................................. 46
Section 6.6 Money Held in Trust.................................................. 46
Section 6.7 Compensation and Reimbursement....................................... 46
Section 6.8 Disqualification; Conflicting Interests.............................. 47
Section 6.9 Corporate Trustee Required; Eligibility.............................. 47
Section 6.10 Resignation and Removal; Appointment of Successor.................... 47
Section 6.11 Acceptance of Appointment by Successor............................... 49
Section 6.12 Merger, Conversion, Consolidation or Succession to Business.......... 50
Section 6.13 Preferential Collection of Claims Against Company.................... 50
Section 6.14 Appointment of Authenticating Agent.................................. 50
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY................................. 52
Section 7.1 Company to Furnish Trustee Names and Addresses of Holders....... 52
Section 7.2 Preservation of Information, Communications to Holders.......... 52
Section 7.3 Reports by Trustee.............................................. 53
Section 7.4 Reports by the Guarantor........................................ 53
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.............................. 53
Section 8.1 Company or Guarantor May Consolidate, Etc., Only on
Certain Terms................................................... 53
Section 8.2 Successor Corporation Substituted............................... 54
ARTICLE IX
SUPPLEMENTAL INDENTURES........................................................... 55
Section 9.1 Supplemental Indentures without Consent of Holders.............. 55
Section 9.2 Supplemental Indentures with Consent of Holders................. 56
Section 9.3 Execution of Supplemental Indentures............................ 57
Section 9.4 Effect of Supplemental Indentures............................... 58
Section 9.5 Conformity with Trust Indenture Act............................. 58
Section 9.6 Reference in Securities to Supplemental Indentures.............. 58
ARTICLE X
COVENANTS......................................................................... 58
Section 10.1 Payment of Principal, Premium and Interest...................... 58
Section 10.2 Maintenance of Office or Agency................................. 58
Section 10.3 Money or Security Payments to be Held in Trust.................. 59
Section 10.4 Statement as to Compliance...................................... 60
Section 10.5 Waiver of Certain Covenants..................................... 60
Section 10.6 Additional Sums................................................. 61
Section 10.7 Additional Covenants............................................ 61
ARTICLE XI
REDEMPTION OF DEBT SECURITIES..................................................... 62
Section 11.1 Applicability of This Article................................... 62
Section 11.2 Election to Redeem; Notice to Trustee........................... 62
Section 11.3 Selection of Debt Securities to be Redeemed..................... 63
Section 11.4 Notice of Redemption............................................ 63
Section 11.5 Deposit of Redemption Price..................................... 64
Section 11.6 Payment of Debt Securities Called for Redemption................ 64
Section 11.7 Right of Redemption of Debt Securities Initially Issued
to an FPC Capital Trust......................................... 65
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
ARTICLE XII
SINKING FUNDS.................................................................... 65
Section 12.1 Applicability of Article.......................................... 65
Section 12.2 Satisfaction of Sinking Fund Payments with Debt Securities........ 65
Section 12.3 Redemption of Debt Securities for Sinking Fund.................... 66
ARTICLE XIII
SUBORDINATION OF SECURITIES........................................................ 67
Section 13.1 Securities Subordinate to Senior Debt............................. 67
Section 13.2 Payment Over of Proceeds Upon Dissolution, Etc.................... 67
Section 13.3 Prior Payment to Senior Debt Upon Acceleration of
Securities........................................................ 69
Section 13.4 No Payment When Senior Debt in Default............................ 69
Section 13.5 Payment Permitted If No Default................................... 70
Section 13.6 Subrogation to Rights of Holders of Senior Debt................... 70
Section 13.7 Provisions Solely to Define Relative Rights....................... 71
Section 13.8 Trustee to Effectuate Subordination............................... 71
Section 13.9 No Waiver of Subordination Provisions............................. 71
Section 13.10 Notice to Trustee................................................. 72
Section 13.11 Reliance on Judicial Order or Certificate of Liquidating
Agent............................................................. 73
Section 13.12 Trustee Not Fiduciary for Holders of Senior Debt.................. 73
Section 13.13 Rights of Trustee as Holder of Senior Debt; Preservation
of Trustee 's Rights.............................................. 73
Section 13.14 Article Applicable to Paying Agents............................... 73
Section 13.15 Certain Conversions or Exchanges Deemed Payment................... 73
ARTICLE XIV
GUARANTEE............................................................................. 74
Section 14.1 Guarantee......................................................... 74
Section 14.2 Waiver of Notice and Demand....................................... 74
Section 14.3 Guarantor Obligations Not Affected................................ 74
Section 14.4 Form of Guarantee................................................. 75
Section 14.5 Execution of Guarantee............................................ 76
Section 14.6 Subrogation....................................................... 77
Section 14.7 Independent Obligations........................................... 77
Section 14.8 Subordination..................................................... 77
Section 14.9 Assumption by Guarantor........................................... 77
</TABLE>
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JUNIOR SUBORDINATED INDENTURE dated as of __________ 1, 1999, among FLORIDA
PROGRESS FUNDING CORPORATION, a Delaware corporation (hereinafter called the
"Company") having its principal office at 300 Delaware Avenue, Suite 319,
Wilmington, Delaware 19801, FLORIDA PROGRESS CORPORATION, a Florida corporation,
as guarantor (hereinafter called the "Guarantor") having its principal office at
One Progress Plaza, St. Petersburg, Florida 33701 and THE FIRST NATIONAL BANK OF
CHICAGO, a national banking association duly organized and existing under the
laws of the United States, as Trustee (hereinafter called the "Trustee").
RECITALS OF THE COMPANY AND THE GUARANTOR
The Company has duly authorized the execution and delivery of this
Indenture (i) to provide for the issuance from time to time of its unsecured
junior subordinated notes in series (hereinafter called the "Debt Securities")
of substantially the tenor hereinafter provided, including, without limitation,
Debt Securities issued to evidence loans made to the Company of the proceeds
from the issuance from time to time by one or more business trusts (each a "FPC
Capital Trust," and, collectively, the "FPC Capital Trusts") of preferred trust
interests in such Trusts (the "Preferred Securities") and common interests in
such Trusts (the "Common Securities" and, collectively with the Preferred
Securities, the "Trust Securities"), and (ii) to provide the terms and
conditions upon which the Debt Securities are to be authenticated, issued and
delivered.
The Guarantor has duly authorized the execution and delivery of this
Indenture and deems it appropriate from time to time to issue its guarantee of
the Debt Securities on the terms herein provided (the "Guarantees" and, together
with the Debt Securities, the "Securities").
All things necessary to make the Securities, when executed by the Company
and the Guarantor, as applicable, authenticated and delivered hereunder and duly
issued by the Company and the Guarantor, as applicable, the valid obligations of
the Company and the Guarantor, as applicable, and to make this Indenture a valid
agreement of the Company and the Guarantor, as applicable, in accordance with
their and its terms, have been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the
premises and the purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of Securities of any series thereof, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions.
For all purposes of this Indenture (and any indenture supplement hereto),
except as otherwise expressly provided or unless the context otherwise requires:
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(1) The terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) All other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) All accounting terms not otherwise defined herein or in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them in accordance with generally accepted accounting principles,
and the term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles which are generally accepted at the date or time of such computation;
provided, that when two or more principles are so generally accepted, it shall
mean that set of principles consistent with those in use by the Company or the
Guarantor, as applicable; and
(4) 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.
"Act" when used with respect to any Holder has the meaning specified in
Section 1.4 hereof.
"Additional Interest" means the interest, if any, that shall accrue on any
interest on the Debt Securities of any series the payment of which has not been
made on the applicable Interest Payment Date and which shall accrue at the rate
per annum specified or determined as specified in such Debt Security.
"Additional Sums" has the meaning specified in Section 10.6.
"Additional Taxes" means the sum of any additional taxes, duties and other
governmental charges to which a FPC Capital Trust has become subject from time
to time as a result of a Tax Event.
"Administrative Trustee" means, in respect of any FPC Capital Trust, each
Person identified as an "Administrative Trustee" in the related Trust Agreement,
solely in such Person's capacity as Administrative Trustee of such FPC Capital
Trust under such Trust Agreement and not in such Person's individual capacity,
or any successor administrative trustee appointed as therein provided.
"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; provided, however, no FPC Capital Trust to
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which Debt Securities have been issued shall be deemed to be an Affiliate of the
Company or the Guarantor. 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.
"Allocable Amounts," when used with respect to any Senior Debt, means all
amounts due or to become due on such Senior Debt less, if applicable, any amount
which would have been paid to, and retained by, the holders of such Senior Debt
(whether as a result of the receipt of payments by
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the holders of such Senior Debt from the Company or the Guarantor, as the case
may be, or any other obligor thereon or from any holders of, or trustee in
respect of, other indebtedness that is subordinate and junior in right of
payment to such Senior Debt pursuant to any provision of such indebtedness for
the payment over of amounts received on account of such indebtedness to the
holders of such Senior Debt or otherwise) but for the fact that such Senior Debt
is subordinate or junior in right of payment to (or subject to a requirement
that amounts received on such Senior Debt be paid over to obligees on) trade
accounts payable or accrued liabilities arising in the ordinary course of
business.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Board of Directors" means either the board of directors of the Company or
the Guarantor, as the case may be, or any committee of that board duly
authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company or the Guarantor, as the case may be,
to have been duly adopted by the Board of Directors thereof, or such committee
of the Board of Directors or officers of the Company or the Guarantor, as the
case may be, to which authority to act on behalf of the Board of Directors has
been delegated, and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or (iii) a day on which the
Corporate Trust Office of the Trustee, or, with respect to the Securities of a
series initially issued to a FPC Capital Trust, the principal office of the
Property Trustee under the related Trust Agreement, is closed for business.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Common Securities" has the meaning specified in the first recital of this
Indenture.
"Common Stock" means the common stock, without par value, of the Company or
the common stock, without par value, of the Guarantor, as the case may be.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" and "Company Order" mean, respectively, the written
request or order signed in the name of the Company and the Guarantor by the
Chairman of the Board of Directors, the Vice Chairman of the Board of Directors,
its President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
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"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which, at any particular time, its corporate trust business shall be
administered, which office at the date hereof is located at One First National
Plaza, Suite IL1-0126, Chicago, Illinois 60670-0126, Attention: Global Corporate
Trust Services, except for purposes of Section 10.2, if required with respect to
a series of Debt Securities, such term shall mean the office or agency of the
Trustee in the Borough of Manhattan the City of New York, which office at the
date hereof is located at First Chicago Trust Company of New York, 14 Wall
Street, Eighth Floor, New York, New York 10005..
"Corporation" includes a corporation, association, company, joint-stock
company or business trust.
"Debt" means, with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent, (i) every
obligation of such Person for money borrowed; (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; (vi) all
indebtedness of such Person, whether incurred on or prior to the date of this
Indenture or thereafter incurred, for claims in respect of derivative products,
including interest rate, foreign exchange rate and commodity forward contracts,
options and swaps and similar arrangements; and (vii) every obligation of the
type referred to in clauses (i) through (vi) of another Person and all dividends
and operating lease payments of another Person the payment of which, in either
case, such Person has guaranteed or is responsible or liable for, directly or
indirectly, as obligor or otherwise.
"Debt Securities" has the meaning specified in the first recital of this
Indenture.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 3.1 with
respect to such series (or any successor to the Depositary).
"Discount Security" means any security which provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.
"Distributions," with respect to the Trust Securities issued by a FPC
Capital Trust, means amounts payable in respect of such Trust Securities as
provided in the related Trust Agreement and referred to therein as
"Distributions."
"Dollar" means the currency of the United States of America that, at the
time of payment, is legal tender for the payment of public and private debts.
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"Event of Default," unless otherwise specified in the supplemental
indenture or Officers' Certificate creating a series of Securities, has the
meaning specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Extension Period" has the meaning specified in Section 3.11.
"FPC Capital Guarantee" means the guarantee by the Guarantor of
distributions on the Preferred Securities of an FPC Capital Trust to the extent
provided in the Guarantee Agreement.
"FPC Capital Trust" has the meaning specified in the first recital of this
Indenture.
"Global Security" means a Security in the form prescribed in Section 2.4
evidencing all or part of a series of Securities, issued to the Depositary or
its nominee for such series, and registered in the name of such Depositary or
its nominee.
"Guarantee Agreement" means the Guarantee Agreement between Guarantor and
the trustee certified therein, substantially in such form as may be specified as
contemplated by Section 3.1 with respect to the Debt Securities of any series,
in each case as amended from time to time.
"Guarantee" has the meaning specified in the second recital of this
Indenture.
"Guarantor" means Florida Progress Corporation, a Florida Corporation, or
any successor thereto.
"Holder" means a Person in whose name a Security is registered in the
Securities Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of each particular series of Debt Securities established as
contemplated by Section 3.1.
"Interest Payment Date" means as to each series of Debt Securities the
Stated Maturity of an installment of interest on such Debt Securities.
"Investment Company Act Event" means that an FPC Capital Trust shall have
received an Opinion of Counsel (as defined in the relevant FPC Capital Trust
Agreement) experienced in such matters to the effect that, as a result of the
occurrence of a change in law or regulation or a written change in the
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, there is more than an
insubstantial risk that such FPC Capital Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act of 1940, as amended, which change becomes effective on or after the
Original Issue Date.
"Junior Subordinated Payment" has the meaning specified in Section 13.2.
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"Maturity" when used with respect to any Debt Security means the date on
which the principal of such Debt Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Moody's" means Moody's Investors Service, Inc.
"Notice of Default" means a written notice of the kind specified in Section
5.1(3).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board of Directors, a Vice Chairman of the Board of Directors, the President or
a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary of the Company or the Guarantor, as the case may be, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company or the Guarantor, as the case may be, and who shall be
acceptable to the Trustee.
"Original Issue Date" means the date of issuance specified as such in each
Security.
"Outstanding" means, when used in reference to any Securities, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent in trust for the
Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or which have been paid
pursuant to Section 3.6, unless proof satisfactory to the Trustee is presented
that any such Securities are held by Holders in whose hands such Securities are
valid, binding and legal obligations of the Company; provided, however, that in
determining whether the Holders of the requisite principal amount of an
Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor 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, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or such other obligor. Upon the written request of the Trustee, the
Company shall furnish to the Trustee promptly an Officers' Certificate listing
and identifying all Securities, if any, known by the Company to be owned or held
by or for the account of the Company, or any other obligor on the Securities or
any Affiliate of the Company or such obligor, and, subject to the provisions of
Section 6.1, the Trustee shall be entitled to accept such Officers' Certificate
as conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
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"Paying Agent" means the Trustee or any Person authorized by the Company to
pay the principal of or interest on any Debt Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" means, with respect to the Debt Securities of any
series, the place or places where the principal of (and premium, if any) and
interest on the Securities of such series are payable pursuant to Sections 3.1
and 3.11.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any security
authenticated and delivered under Section 3.6 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Preferred Securities" has the meaning specified in the first recital of
this Indenture.
"Proceeding" has the meaning specified in Section 13.2.
"Property Trustee" means, in respect of any FPC Capital Trust, the
commercial bank or trust company identified as the "Property Trustee" in the
related Trust Agreement, solely in its capacity as Property Trustee of such FPC
Capital Trust under such Trust Agreement and not in its individual capacity, or
its successor in interest in such capacity, or any successor property trustee
appointed as therein provided.
"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
with respect to the Debt Securities of a series means, unless otherwise provided
pursuant to Section 3.1 with respect to Debt Securities of a series, (i) in the
case of Debt Securities of a series represented by one or more Global
Securities, the Business Day next preceding such Interest Payment Date and (ii)
in the case of Debt Securities of a series not represented by one or more Global
Securities, the date which is fifteen days next preceding such Interest Payment
Date (whether or not a Business Day).
"Responsible Officer," when used with respect to the Trustee, means any
officer of the Trustee assigned by the Trustee from time to time to administer
its corporate trust matters or any other officer to whom such a matter may be
referred.
"Rights Plan" means a plan of the Company or the Guarantor, as the case may
be, providing for the issuance by the Company or the Guarantor, as the case may
be, to all holders of its Common Stock of rights entitling the holders thereof
to subscribe for or purchase shares of Common Stock or any class or series of
preferred stock, which rights (i) are deemed to be transferred with such
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shares of Common Stock, (ii) are not exercisable and (iii) are also issued in
respect of future issuances of Common Stock, in each case until the occurrence
of a specified event or events.
"S&P" means Standard & Poor's Ratings Services, a division of The McGraw-
Hill Companies, Inc.
"Securities" or "Security" means any Debt Securities or Debt Security, as
the case may be, with a Guarantee endorsed thereon authenticated and delivered
under this Indenture.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.5.
"Senior Debt" means, with respect to any Person, the principal of (and
premium, if any) and interest, if any (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization relating to such
Person, whether or not such claim for post-petition interest is allowed in such
proceeding), on Debt of such Person, whether incurred on or prior to the date of
this Indenture or thereafter incurred, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such obligations are not superior in right of payment to the Securities or
to other Debt which is pari passu with, or subordinated to, the Securities,
provided, however, that Senior Debt shall not be deemed to include (a) any Debt
of such Person which, when incurred and without respect to any election under
Section 1111(b) of the Bankruptcy Reform Act of 1978, was without recourse to
such Person, (b) any Debt of such Person, to any of its Subsidiaries, (c) Debt
to any employee of such Person, and (d) any Securities.
"Special Event" means an Investment Company Act Event or a Tax Event.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" when used with respect to any Debt Security or any
installment of principal thereof or interest thereon means the date specified
pursuant to the terms of such Debt Security as the date on which the principal
of such Debt Security or such installment of interest is due and payable, in the
case of such principal, as such date may be shortened or extended as provided
pursuant to the terms of such Debt Security and this Indenture.
"Subsidiary" means, with respect to any Person, a corporation more than 50%
of the outstanding voting stock of which is owned, directly or indirectly, by
such Person or by one or more other Subsidiaries, or by such Person and one or
more other Subsidiaries. For purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
"Tax Event" means the receipt by an FPC Capital Trust of an Opinion of
Counsel (as defined in the relevant FPC Capital Trust Agreement) experienced in
such matters to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, or as a result of any official administrative
pronouncement or judicial decision
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interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement or decision is announced on or after the date
of issuance of the Preferred Securities of such FPC Capital Trust, there is more
than an insubstantial risk that (i) such FPC Capital Trust is, or will be within
90 days of the date of such Opinion of Counsel, subject to United States federal
income tax with respect to income received or accrued on the corresponding
series of Debt Securities issued by the Company to such FPC Capital Trust, (ii)
interest payable by the Company on such corresponding series of Debt Securities
is not, or within 90 days of the date of such Opinion of Counsel, will not be,
deductible by the Company, in whole or in part, for United States federal income
tax purposes or (iii) such FPC Capital Trust is, or will be within 90 days of
the date of such Opinion of Counsel, subject to more than a de minimis amount of
other taxes, duties or other governmental charges.
"Trust Agreement" means the Trust Agreement, as amended by the form of
Amended and Restated Trust Agreement, substantially in such form as may be
specified as contemplated by Section 3.1 with respect to the Debt Securities of
any series, in each case as amended from time to time.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder and, if at any time there is
more than one such Person, "Trustee," as used with respect to the Securities of
any series, shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended and
as in effect on the date of this Indenture, except as provided in Section 9.5.
"Trust Securities" has the meaning specified in the first recital of this
Indenture.
"Vice President," when used with respect to the Company, the Guarantor or
the Trustee, as the case may be, means any duly appointed vice president,
whether or not designated by a number or a word or words added before or after
the title "vice president."
Section 1.2 Compliance Certificate and Opinions.
Upon any application or request by the Company or the Guarantor, as the
case may be to the Trustee to take any action under any provision of this
Indenture, the Company or the Guarantor, as the case may be shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent
(including covenants compliance with which constitutes a condition 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 (including covenants compliance with which
constitutes a condition 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 (other than the certificates provided
pursuant to Section 10.5) shall include:
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(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(2) 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;
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
Section 1.3 Forms 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 may certify or give an opinion 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 or the Guarantor,
as the case may be, 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 matters upon which his certificate
or opinion is 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 or the
Guarantor as the case may be, stating that the information with respect to such
factual matters is in the possession of the Company or the Guarantor, as the
case may be, 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.
Section 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given to 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; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments is or are delivered to the
Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a
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writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(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
the certificate of any 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. Where such execution is
by a Person acting in other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of this authority.
(c) The fact and date of the execution by any Person of any such instrument
or writing, or the authority of the Person executing the same, may also be
proved in any other manner which the Trustee deems sufficient and in accordance
with such reasonable rules as the Trustee may determine.
(d) The ownership of Securities shall be proved by the Securities Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done
or suffered to be done by the Trustee or the Company or the Guarantor in
reliance thereon, whether or not notation of such action is made upon such
Security.
(f) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date, provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be canceled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 1.6.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 5.2, (iii) any request to institute
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proceedings referred to in Section 5.7(2) or (iv) any direction referred to in
Section 5.12, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date, provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day, provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 10.6, on or prior to the existing Expiration Date. If an Expiration
Date is not designated with respect to any record date set pursuant to this
Section, the party hereto which set such record date shall be deemed to have
initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
(g) Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
Section 1.5 Notices, Etc. to Trustee, the Company and the Guarantor.
Any request, demand, authorization, direction, notice, consent, 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,
(1) the Trustee by any Holder, any holder of Preferred Securities, the
Company or the Guarantor shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, or
(2) the Company or the Guarantor by the Trustee, any Holder or any holder
of Preferred Securities shall be sufficient for every purpose (except as
otherwise provided in Section 5.1) hereunder if in writing and mailed, first
class, postage prepaid, to the Company or the Guarantor, as the case may be,
addressed to it at the address of its principal office specified in the first
paragraph
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of this instrument or at any other address previously furnished in
writing to the Trustee by the Company or the Guarantor, as the case may be.
Section 1.6 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
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 Securities
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. 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. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
Section 1.7 Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture
Act, through operation of Section 318(c) thereof, such imposed duties shall
control.
Section 1.8 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.9 Successors and Assigns.
All covenants and agreements in this Indenture by the Company and the
Guarantor shall bind each of the Company's and the Guarantor's, as the case may
be, successors and assigns, whether so expressed or not.
Section 1.10 Separability Clause.
In case any provision in this Indenture or in 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 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors and
assigns, the holders of Senior Debt of the Company or the Guarantor, the Holders
of the Securities and, to the extent expressly provided in Sections 5.2, 5.8,
5.9, 5.11, 5.13, 9.1 and 9.2, the holders of Preferred Securities, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
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Section 1.12 Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York without regard to the
principles of conflicts thereof.
Section 1.13 Non-Business Days.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or the Securities) payment of interest or
principal (and premium, if any) need not be made on such date, but may be made
on the next succeeding Business Day (and no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be, until such next succeeding Business Day except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day (in each case with the same force and
effect as if made on the Interest Payment Date or Redemption Date or at the
Stated Maturity).
ARTICLE II
SECURITY FORMS
Section 2.1 Forms Generally.
The Securities of each series and the Trustee's certificate of
authentication shall be in substantially the forms set forth in this Article, or
in such other form or forms as shall be established by or pursuant to a Board
Resolution of the Company and as set forth in an Officers' Certificate of the
Company and the Guarantor or in one or more indentures supplemental hereto, 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 applicable tax
laws or the rules of any securities exchange or as may, consistently herewith,
be determined by the officers executing such securities, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution of the Company, a
copy of an appropriate record of such action shall be certified by the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Company Order contemplated by Section 3.3 with
respect to the authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be substantially in the
form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods, if required by any securities
exchange on which the Securities may be listed, on a steel engraved border or
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such securities.
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Section 2.2 Form of Face of Security.
FLORIDA PROGRESS FUNDING CORPORATION
(TITLE OF SECURITY)
No. $__________
FLORIDA PROGRESS FUNDING CORPORATION, a corporation organized and existing
under the laws of Delaware (hereinafter called the "Company," which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to _____________________, or
registered assigns, the principal sum of _______________ Dollars ($ ________) on
___________, ____, [if applicable, insert--;provided that the Company may (i)
shorten the Stated Maturity of the principal of this Security to a date not
earlier than ___________, and (ii) extend the Stated Maturity of the principal
of this Security at any time on one or more occasions, subject to certain
conditions specified in Section 3.14 of the Indenture, but in no event to a date
later than __________]. The Company further promises to pay interest on said
principal sum from ____________, _____________ or from the most recent interest
payment date (each such date, an "Interest Payment Date") on which interest has
been paid or duly provided for, [monthly] [quarterly] [semi-annually] [if
applicable, insert--(subject to deferral as set forth herein) in arrears on
_____________, ___________, ____________ and ___________ of each year,
commencing _____________, _____________, at the rate of ___% per annum, until
the principal hereof shall have become due and payable, [if applicable, insert--
plus Additional Interest, if any,] until the principal hereof is paid or duly
provided for or made available for payment [if applicable, insert--and on any
overdue principal and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the rate of ___% per annum, compounded [monthly] [quarterly] [semi-
annually]]. The amount of interest payable for any period shall be computed on
the basis of twelve 30-day months and a 360-day year. The amount of interest
payable for any partial period shall be computed on the basis of the number of
days elapsed in a 360-day year of twelve 30-day months. In the event that any
date on which interest is payable on this Security is not a Business Day, then a
payment of the interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date the payment was originally payable. A "Business Day" shall mean any
day other than (i) a Saturday or Sunday, (ii) a day on which banking
institutions in The City of New York are authorized or required by law or
executive order to remain closed or (iii) a day on which the Corporate Trust
Office of the Trustee [if applicable, insert--, or the principal office of the
Property Trustee under the Trust Agreement hereinafter referred to for FPC
Capital Trust________,] is closed for business. The interest installment so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest installment, which shall
be the (i) in the case of Securities represented by one or more Global
Securities, the Business Day next preceding such Interest Payment Date and (ii)
in the case of Securities not represented by one or more Global Securities, the
date which is fifteen days next preceding such Interest Payment Date (whether or
not a Business Day). Any such interest
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installment not so punctually paid or duly provided for shall forthwith cease to
be payable to the Holder on such Regular Record Date and may either be paid to
the Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
[If applicable, insert--So long as no Event of Default has occurred and is
continuing, the Company shall have the right at any time during the term of this
Security to defer payment of interest on this Security, at any time or from time
to time, for up to ___ consecutive [monthly] [quarterly] [semi-annual] interest
payment periods with respect to each deferral period (each an "Extension
Period"), during which Extension Periods the Company shall have the right to
make partial payments of interest on any Interest Payment Date, and at the end
of which the Company shall pay all interest then accrued and unpaid (together
with Additional Interest thereon to the extent permitted by applicable law);
provided, however, that no Extension Period shall extend beyond the Stated
Maturity of the principal of this Security; provided, further, that during any
such Extension Period, the Company shall not nor shall the Guarantor referred to
herein, (i) declare or pay any dividends or distributions or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the its capital
stock or (ii) make any payment of principal of or interest or premium, if any,
on or repay, repurchase or redeem any debt security issued by it that ranks pari
passu with or junior in interest to this Security or the Guarantee referred to
herein or make any guarantee payments with respect to any guarantee by the
Company or the Guarantor of the debt securities of any of their respective
Subsidiaries if such guarantee ranks pari passu with or junior in interest to
this Security (other than (a) dividends or distributions in Common Stock, (b)
any declaration of a dividend in connection with the implementation of a Rights
Plan, the issuance of any Common Stock or any class or series of preferred stock
of the Company or the Guarantor under any Rights Plan or the repurchase of any
rights distributed pursuant to a Rights Plan, and (c) purchases of Common Stock
related to the issuance of Common Stock under any of the Company's or the
Guarantor's benefit plans for their respective directors, officers or
employees). Prior to the termination of any such Extension Period, the Company
may further extend the interest payment period, provided that no Extension
Period shall exceed consecutive [months] [quarters] [semi-annual periods] or
extend beyond the Stated Maturity of the principal of this Security. Upon the
termination of any such Extension Period and upon the payment of all accrued and
unpaid interest and any Additional Interest then due, the Company may elect to
begin a new Extension Period, subject to the above requirements. No interest
shall be due and payable during an Extension Period except at the end thereof.
The Company shall give the Holder of this Security and the Trustee notice of its
election to begin any Extension Period at least one Business Day prior to the
next succeeding Interest Payment Date on which interest on this Security would
be payable but for such deferral [if applicable, insert -- or, with respect to
the Securities issued to a FPC Capital Trust, so long as such Securities are
held by such FPC Capital Trust, prior to the earlier of (i) the next succeeding
date on which Distributions on the Preferred Securities would be payable but for
such deferral or (ii) the date the Administrative Trustee is required to give
notice to any securities exchange or other applicable self regulatory
organization or to holders of such Preferred Securities of the record date or
the date such Distributions are payable, but in any event not less than one
Business Day prior to such record date]].
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Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the United States, 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 [if applicable, insert--; provided, however, that at the option of
the Company payment of interest may be made (i) by check mailed to the address
of the Person entitled thereto as such address shall appear in the Securities
Register or (ii) by wire transfer in immediately available funds at such place
and to such account as may be designated by the Person entitled thereto as
specified in the Securities Register].
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and subject in right of payments to the prior payment
in full of all Senior Debt of the Company, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
actions as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes. Each Holder hereof, by his acceptance hereof, waives all notice of
the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Debt of the Company, whether now outstanding
or hereafter incurred, and waives reliance by each such holder upon said
provisions.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
FLORIDA PROGRESS FUNDING CORPORATION
By:________________________________
[President or Vice President]
Attest:
__________________________________
[Secretary or Assistant Secretary]
NOTES GUARANTEE
FOR THE VALUE RECEIVED, FLORIDA PROGRESS CORPORATION, a corporation duly
organized and existing under the laws of the State of Florida (the "Guarantor",
which term
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includes any successor Person under the Indenture referred to herein)
hereby irrevocably and unconditionally guarantees to the Holder of this Security
issued by Florida Progress Funding Corporation (the "Company"), pursuant to the
terms of the Guarantee contained in Article XIV of the Indenture, the due and
punctual payment of the principal of, sinking fund payment, if any, and premium,
if any, and interest [(including Additional Interest)] on this Security, when
and as the same shall become due and payable, whether at the Stated Maturity, by
declaration of acceleration, call for redemption or otherwise, in accordance
with the terms of this Security and the Indenture.
The obligations of the Guarantor to the Holders of this Security and the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article XIV of the Indenture, and reference is hereby made to such Article and
Indenture for the precise terms of the Guarantee.
Notwithstanding anything to the contrary in this Guarantee, all payments in
respect of the Guarantee are subordinate and subject in right of payment to the
prior payment in full of all Senior Debt (as defined in the Indenture) of the
Guarantor.
The Guarantee shall be governed by and construed in accordance with the
laws of the State of New York without regard to the principles of conflicts
thereof.
The Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on this Security upon which this notation of the
Guarantee is endorsed shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
(SEAL) FLORIDA PROGRESS CORPORATION
Attest:
By:_________________________
Name:__________________
Title__________________
Section 2.3 Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under the Junior Subordinated Indenture dated as of ____________ 1, 1999
(herein called the "Indenture") among the Company, the Guarantor and THE FIRST
NATIONAL BANK OF CHICAGO, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Trustee, the Company, the Guarantor and the Holders of the Securities, and
of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof [if
applicable, insert--, limited in aggregate principal amount to $___________].
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All terms used in this Security that are defined in the Indenture [if
applicable, insert -- or in the Amended and Restated Trust Agreement dated as of
____________ ____, ____, as amended (the "Trust Agreement"), for FPC Capital
Trust_______, among the Company, as Depositor, and the Trustees named therein,
shall have the meanings assigned to them in the Indenture [if applicable,
insert-- or the Trust Agreement, as the case may be].
[If applicable, insert--The Company may at any time, at its option, on or
after ________, ___, and subject to the terms and conditions of Article XI of
the Indenture, redeem this Security in whole at any time or in part from time to
time, without premium or penalty, at a redemption price equal to 100% of the
principal amount thereof plus accrued and unpaid interest [if applicable,
insert--,including Additional Interest, if any,] to the Redemption Date.]
[If applicable, insert--Upon the occurrence and during the continuation of
a Special Event in respect of an FPC Capital Trust, the Company may, at its
option, at any time within 90 days of the occurrence of such Special Event
redeem this Security, in whole but not in part, subject to the provisions of
Section 11.7 and the other provisions of Article XI of the Indenture, at a
redemption price equal to 100% of the principal amount thereof plus accrued and
unpaid interest, including Additional Interest, if any, to the Redemption Date.]
In the event of redemption of this Security in part only, a new Security or
Securities of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Company with certain
conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Company, the Guarantor and the Trustee at any time to enter into a supplemental
indenture or indentures for the purpose of modifying in any manner the rights
and obligations of the Company, the Guarantor and of the Holders of the
Securities, with the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series to be affected by
such supplemental indenture. The Indenture also contains provisions permitting
Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
[If the Security is not a Discount Security,--As provided in and subject to
the provisions of the Indenture, if an Event of Default with respect to the
Securities of this series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of this series may declare the
principal amount of all the Securities of this series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), provided that, in the case of the Securities of this series issued
to a FPC Capital Trust, if upon an Event of Default, the Trustee or the
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Holders of not less than 25% in principal amount of the Outstanding Securities
of this series fail to declare the principal of all the Securities of this
series to be immediately due and payable, the holders of at least 25% in
aggregate Liquidation Amount of the Preferred Securities then outstanding shall
have such right by a notice in writing to the Company, the Guarantor and the
Trustee; and upon any such declaration the principal amount of and the accrued
interest (including any Additional Interest) on all the Securities of this
series shall become immediately due and payable, provided that the payment of
principal and interest (including any Additional Interest) on such Securities
shall remain subordinated to the extent provided in Article XIII of the
Indenture.]
[If the Security is a Discount Security,--As provided in and subject to the
provisions of the Indenture, if an Event of Default with respect to the
Securities of this series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than such portion
of the principal amount as may be specified in the terms of this series may
declare an amount of principal of the Securities of this series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), provided that, in the case of the Securities of this
series issued to an FPC Capital Trust, if upon an Event of Default, the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of this series fails to declare the principal of all the Securities
of this series to be immediately due and payable, the holders of at least 25% in
aggregate Liquidation Amount of the Preferred Securities then outstanding shall
have such right by a notice in writing to the Company, the Guarantor and the
Trustee. Such amount shall be equal to--insert formula for determining the
amount. Upon any such declaration, such amount of the principal of and the
accrued interest (including any Additional Interest) on all the Securities of
this series shall become immediately due and payable, provided that the payment
of principal and interest (including any Additional Interest) on such Securities
shall remain subordinated to the extent provided in Article XIII of the
Indenture. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal and overdue interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and interest, if any, on this Security shall terminate.]
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registerable in the Securities Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company maintained under Section 10.2 of the Indenture duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will 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.
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Prior to due presentment of this Security for registration of transfer, the
Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Guarantor, the Trustee nor any such agent shall be
affected by notice to the contrary.
The Securities of this series are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of such series of a different authorized denomination, as
requested by the Holder surrendering the same.
The Company and the Guarantor, and by its acceptance of this Security or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, this Security agree that for United States federal,
state and local tax purposes it is intended that this Security constitute
indebtedness.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES THEREOF.
Section 2.4 Additional Provisions Required in Global Security.
Any Global Security issued hereunder shall, in addition to the provisions
contained in Sections 2.2 and 2.3, bear a legend in substantially the following
form:
"This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Security is exchangeable for Securities
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture and may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary."
Section 2.5 Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated:
______________________________
as Trustee
______________________________
By:
Authorized officer
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ARTICLE III
THE SECURITIES
Section 3.1 Title and Terms.
(a) 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. There shall be
established in or pursuant to a Board Resolution of the Company and set forth in
an Officers' Certificate of the Company, or established in one or more
indentures supplemental hereto, prior to the issuance of Debt Securities of a
series:
(i) the title of the Debt Securities of such series, which shall
distinguish the Debt Securities of the series from all other Debt Securities;
(ii) the limit, if any, upon the aggregate principal amount of the Debt
Securities of such series which may be authenticated and delivered under this
Indenture (except for Debt 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 3.4, 3.5, 3.6, 9.6 or 11.6 and
except for any Debt Securities which, pursuant to Section 3.3, are deemed never
to have been authenticated and delivered hereunder); provided, however, that the
authorized aggregate principal amount of such series may be increased above such
amount by a Board Resolution of the Company to such effect;
(iii) the Stated Maturity or Maturities on which the principal of the
Debt Securities of such series is payable or the method of determination
thereof;
(iv) the rate or rates, if any, at which the Debt Securities of such
series shall bear interest, if any, the rate or rates and extent to which
Additional Interest, if any, shall be payable in respect of any Debt Securities
of such series, the Interest Payment Dates on which such interest shall be
payable, the right, pursuant to Section 3.11 or as otherwise set forth therein,
of the Company to defer or extend an Interest Payment Date, and the Regular
Record Date for the interest payable on any Interest Payment Date or the method
by which any of the foregoing shall be determined;
(v) the place or places where the principal of (and premium, if any)
and interest on the Debt Securities of such series shall be payable, the place
or places where the Debt Securities of such series may be presented for
registration of transfer or exchange, and the place or places where notices and
demands to or upon the Company in respect of the Debt Securities of such series
may be made;
(vi) the period or periods within or the date or dates on which, if any,
the price or prices at which and the terms and conditions upon which the Debt
Securities of such series may be redeemed, in whole or in part, at the option of
the Company;
(vii) the obligation or the right, if any, of the Company to redeem,
repay or purchase the Debt Securities of such series pursuant to any sinking
fund, amortization or analogous provisions, and the period or periods within
which, the price or prices at which, the currency or currencies
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(including currency unit or units) in which and the other terms and conditions
upon which Debt Securities of the series shall be redeemed, repaid or purchased,
in whole or in part, pursuant to such obligation;
(viii) the denominations in which any Debt Securities of such series
shall be issuable, if other than denominations of $25 and any integral multiple
thereof;
(ix) if other than Dollars, the currency or currencies (including
currency unit or units) in which the principal of (and premium, if any) and
interest, if any, on the Debt Securities of the series shall be payable, or in
which the Debt Securities of the series shall be denominated;
(x) the additions, modifications or deletions, if any, in the Events of
Default or covenants of the Company or the Guarantor set forth herein with
respect to the Debt Securities of such series;
(xi) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of such series that shall be payable upon
declaration of acceleration of the Maturity thereof;
(xii) the additions or changes, if any, to this Indenture with respect
to the Debt Securities of such series as shall be necessary to permit or
facilitate the issuance of the Debt Securities of such series in bearer form,
registerable or not registerable as to principal, and with or without interest
coupons;
(xiii) any index or indices used to determine the amount of payments of
principal of and premium, if any, on the Debt Securities of such series or the
manner in which such amounts will be determined;
(xiv) whether the Debt Securities of the series, or any portion thereof,
shall initially be issuable in the form of a temporary Global Security
representing all or such portion of the Debt Securities of such series and
provisions for the exchange of such temporary Global Security for definitive
Debt Securities of such series;
(xv) if applicable, that any Debt Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities and,
in such case, the respective Depositaries for such Global Securities, the form
of any legend or legends which shall be borne by any such Global Security in
addition to or in lieu of that set forth in Section 2.4 and any circumstances in
addition to or in lieu of those set forth in Section 3.5 in which any such
Global Security may be exchanged in whole or in part for Debt Securities
registered, and any transfer of such Global Security in whole or in part may be
registered, in the name or names of Persons other than the Depositary for such
Global Security or a nominee thereof;
(xvi) the appointment of any Paying Agent or Agents for the Debt
Securities of such series;
(xvii) the terms of any right to convert or exchange Debt Securities of
such series into any other securities or property of the Company, and the
additions or changes, if any, to this Indenture with respect to the Debt
Securities of such series to permit or facilitate such conversion or exchange;
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(xviii) the form or forms of the Trust Agreement, Amended and Restated
Trust Agreement and Guarantee Agreement;
(xix) the relative degree, if any, to which the Debt Securities of the
series shall be senior to or be subordinated to other series of Debt Securities
in right of payment, whether such other series of Debt Securities are
Outstanding or not; and
(xx) any other terms of the Debt Securities of such series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided herein or in
or pursuant to such Board Resolution of the Company and set forth in such
Officers' Certificate of the Company, or in any such indenture supplemental
hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution of the Company, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate of the Company setting forth the terms of the series.
The Debt Securities shall be subordinated in right of payment to Senior
Debt of the Company as provided in Article XIII.
(b) Prior to the issuance of any of the Guarantees, the exact form and
terms of such Guarantees, which shall comply with the terms of Article XIV
hereof and contain such additional terms as are permitted by this Indenture,
shall be established by an Officers' Certificate of the Guarantor or in an
indenture supplemental hereto.
Section 3.2 Denominations.
The Debt Securities of each series shall be in registered form without
coupons and shall be issuable in denominations of $25 and any integral multiple
thereof, unless otherwise specified as contemplated by Section 3.1.
Section 3.3 Execution, Authentication, Delivery and Dating.
The Debt Securities shall be executed on behalf of the Company by its
President, one of its Vice Presidents or its Treasurer under its corporate seal
reproduced or impressed thereon and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Debt Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper 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. At any time and from
time to time after the execution and delivery of this Indenture, the Company may
deliver Debt Securities of any series executed by the Company to the Trustee for
authentication, together
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with a Company Order for the authentication and delivery of such Debt
Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Debt Securities. If the form or terms of the Debt
Securities of the series have been established by or pursuant to one or more
Board Resolutions of the Company as permitted by Sections 2.1 and 3.1, in
authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities, the
Trustee shall be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Debt Securities has been established by or
pursuant to Board Resolution of the Company as permitted by Section 2.1,
that such form has been established in conformity with the provisions of
this Indenture;
(2) if the terms of such Debt Securities have been established by or
pursuant to Board Resolution of the Company as permitted by Section 3.1,
that such terms have been established in conformity with the provisions of
this Indenture; and
(3) that such Debt Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Debt Securities if the issue of such Debt
Securities pursuant to this Indenture will 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.
Notwithstanding the provisions of Section 3.1 and of the preceding
paragraph, if all Debt Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Officers' Certificate of the
Company otherwise required pursuant to Section 3.1 or the Company Order and
Opinion of Counsel of the Company otherwise required pursuant to such preceding
paragraph at or prior to the authentication of each Debt Security of such series
if such documents are delivered at or prior to the authentication upon original
issuance of the first Debt Security of such series to be issued.
Each Debt Security shall be dated the date of its authentication.
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 by the manual signature of one of its authorized
officers, 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. Notwithstanding the foregoing, if any
Debt Security shall have been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Debt Security
to the Trustee for cancellation as provided in Section 3.9, for all purposes of
this Indenture
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such Debt Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 3.4 Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
and the Guarantor may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any denomination,
substantially of the tenor of the definitive Securities of such series in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company and the
Guarantor will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities, the
temporary Securities shall be exchangeable for definitive Securities upon
surrender of the temporary Securities at the office or agency of the Company
designated for that purpose without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company and the
Guarantor shall execute and the Trustee shall authenticate and deliver in
exchange therefor one or more definitive Securities of the same series, of any
authorized denominations having the same Original Issue Date and Stated Maturity
and having the same terms as such temporary Securities. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
Section 3.5 Registration, Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. Such register is herein sometimes referred to as the
"Securities Register." The Trustee is hereby appointed "Securities Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security at the office
or agency of the Company designated for that purpose the Company and the
Guarantor shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series of any authorized denominations, of a like aggregate principal
amount, of the same Original Issue Date and Stated Maturity and having the same
terms.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series of any authorized denominations, of a like
aggregate principal amount, of the same Original Issue Date and Stated Maturity
and having the same terms, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any securities are so surrendered for exchange,
the Company and the Guarantor shall execute, and the Trustee shall authenticate
and deliver, the Securities which the Holder making the exchange is entitled to
receive.
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All Securities issued upon any transfer or exchange of Securities shall be
the valid obligations of the Company and the Guarantor, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Every Security presented or surrendered for transfer or exchange shall (if
so required by the Company or the Securities Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Securities.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered,
in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (i) has notified
the Company that it is unwilling or unable to continue as Depositary for
such Global Security or (ii) has ceased to be a clearing agency registered
under the Exchange Act at a time when the Depositary is required to be so
registered to act as depositary, in each case unless the Company has
approved a successor Depositary within 90 days, (B) there shall have
occurred and be continuing an Event of Default with respect to such Global
Security, (C) the Company in its sole discretion determines that such
Global Security will be so exchangeable or transferable or (D) there shall
exist such circumstances, if any, in addition to or in lieu of the
foregoing as have been specified for this purpose as contemplated by
Section 3.1.
(3) Subject to Clause (2) above, any exchange of a Global Security
for other Securities may be made in whole or in part, and all Securities
issued in exchange for a Global Security or any portion thereof shall be
registered in such names as the Depositary for such Global Security shall
direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 3.4, 3.6, 9.6 or
11.6 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
Neither the Company nor the Trustee shall be required, pursuant to the
provisions of this Section, (a) to issue, transfer or exchange any Security of
any series during a period beginning at the
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opening of business 15 days before the day of selection for redemption of
Securities pursuant to Article XI and ending at the close of business on the day
of mailing of notice of redemption or (b) to transfer or exchange any Security
so selected for redemption in whole or in part, except, in the case of any
Security to be redeemed in part, any portion thereof not to be redeemed.
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together with such
security or indemnity as may be required by the Company, the Guarantor or the
Trustee to save each of them harmless, the Company and the Guarantor shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same issue and series of like tenor and principal amount,
having the same Original Issue Date and Stated Maturity, and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company, the Guarantor and to the
Trustee (i) evidence to their satisfaction of the destruction, loss or theft of
any Security, and (ii) such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Company, the
Guarantor or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company and the Guarantor shall execute and upon their, or one of
their, request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same issue and series
of like tenor and principal amount, having the same Original Issue Date and
Stated Maturity as such destroyed, lost or stolen Security, and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company or Guarantor, as the case may be, whether
or not the destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 3.7 Payment of Interest; Interest Rights Preserved.
Interest on any Security of any series which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date, shall be paid to the
Person in whose name that Security
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(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest in respect of Securities of such
series, except that, unless otherwise provided in the Securities of such series,
interest payable on the Stated Maturity of the principal of a Security shall be
paid to the Person to whom principal is paid. The initial payment of interest on
any Security of any series which is issued between a Regular Record Date and the
related Interest Payment Date shall be payable as provided in such Security or
in the Board Resolution of the Company pursuant to Section 3.1 with respect to
the related series of Securities.
Any interest on any Security which is payable, but is not timely paid or
duly provided for, on any Interest Payment Date for Securities of such series
(herein called "Defaulted Interest"), shall forthwith cease to be payable to the
registered Holder on the relevant 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 (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series in respect of which
interest is in default (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security 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 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 a
Security of such series at the address of such Holder as it appears in the
Securities Register not less than 10 days prior to such Special Record Date. The
Trustee may, in its discretion, in the name and at the expense of the Company,
cause a similar notice to be published at least once in a newspaper, customarily
published in the English language on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered on such
Special Record Date and shall no longer be payable pursuant to the following
Clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of the series in respect of which interest is in default
may be listed and, upon such notice as may be required by such exchange (or by
the Trustee if the Securities are not listed), if after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause, such
payment shall be deemed practicable by the Trustee.
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Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 3.8 Persons Deemed Owners.
The Company, the Guarantor, the Trustee and any agent of the Company, the
Guarantor or the Trustee may treat the Person in whose name any Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of and (subject to Section 3.7) any interest on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Guarantor, the Trustee nor any agent of the Company,
the Guarantor or the Trustee shall be affected by notice to the contrary.
Section 3.9 Cancellation.
All Securities surrendered for payment, redemption, transfer or exchange
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee, and any such Securities and Securities surrendered directly to the
Trustee for any such purpose shall be promptly canceled by it. The Company or
the Guarantor may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company or
the Guarantor may have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities shall be destroyed by the Trustee and the Trustee shall, if
requested, deliver to the Company a certificate of such destruction.
Section 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for Securities
of any series, interest on the Securities of each series for any period shall be
computed on the basis of a 360-day year of twelve 30-day months and interest on
the Securities of each series for any partial period shall be computed on the
basis of the number of days elapsed in a 360-day year of twelve 30-day months.
Section 3.11 Deferrals of Interest Payment Dates.
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, so long as no Event of Default has
occurred and is continuing, the Company shall have the right, at any time during
the term of such series, from time to time to defer the payment of interest on
such Securities for such period or periods as may be specified as contemplated
by Section 3.1 (each, an "Extension Period"), during which Extension Periods the
Company shall have the right to make partial payments of interest on any
Interest Payment Date. No Extension Period shall end on a date other than an
Interest Payment Date. At the end of any such Extension Period the Company shall
pay all interest then accrued and unpaid on the Securities (together with
Additional Interest thereon, if any, at the rate specified for the Securities of
such series to the extent permitted by applicable law); provided, however, that
no Extension Period shall extend beyond the Stated Maturity of the principal of
the Securities of such series; provided, further, that during any such Extension
Period, neither the Company or the Guarantor shall, (i) declare or pay any
dividends or
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distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of its capital stock, or (ii) make any payment of principal
of or interest or premium, if any, on or repay, repurchase or redeem any debt
security issued by it that ranks pari passu with or junior in interest to the
Securities of such series or make any guarantee payments with respect to any
guarantee by the Company or the Guarantor of the debt securities of any
Subsidiary of the Company or the Guarantor that by their terms rank pari passu
with or junior in interest to the securities of such series (other than (a)
dividends or distributions in Common Stock, (b) any declaration of a dividend in
connection with the implementation of a Rights Plan, the issuance of any Common
Stock or any class or series of preferred stock of the Company or the Guarantor
under any Rights Plan or the repurchase of any rights distributed pursuant to a
Rights Plan, and (c) purchases of Common Stock related to the issuance of Common
Stock under any of the Company's or the Guarantor's benefit plans for their
respective directors, officers or employees). Prior to the termination of any
such Extension Period, the Company may further extend the interest payment
period, provided that no Extension Period shall exceed the period or periods
specified in such Securities or extend beyond the Stated Maturity of the
principal of such Securities. Upon termination of any Extension Period and upon
the payment of all accrued and unpaid interest and any Additional Interest then
due on any Interest Payment Date, the Company may elect to begin a new Extension
Period, subject to the above requirements. No interest shall be due and payable
during an Extension Period, except at the end thereof. The Company shall give
the Holders of the Securities of such series and the Trustee notice of its
election to begin any such Extension Period at least one Business Day prior to
the next succeeding Interest Payment Date on which interest on Securities of
such series would be payable but for such deferral or, with respect to the
Securities of a series issued to an FPC Capital Trust, so long as such
Securities are held by such FPC Capital Trust, prior to the earlier of (i) the
next succeeding date on which Distributions on the Preferred Securities of such
FPC Capital Trust would be payable but for such deferral or (ii) the date the
Administrative Trustee of such FPC Capital Trust are required to give notice to
any securities exchange or other applicable self regulatory organization or to
holders of such Preferred Securities of the record date or the date such
Distributions are payable, but in any event not less than one Business Day prior
to such record date.
The Trustee shall promptly give notice of the Company's election to begin
any such Extension Period to the Holders of the Outstanding Securities of such
series.
Section 3.12 Right of Set-Off.
With respect to the Securities of a series issued to an FPC Capital Trust,
notwithstanding anything to the contrary in the Indenture, the Company shall
have the right to set-off any payment it is otherwise required to make
thereunder in respect of any such Security to the extent the Guarantor has
theretofore made, or is concurrently on the date of such payment making, a
payment with respect to the FPC Capital Guarantee relating to such Security, or
the Company has theretofore made, or is concurrently on the date of such payment
making, a payment under Section 5.8 of the Indenture.
Section 3.13 Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Company and the
Guarantor and, by its acceptance of a Security or a beneficial interest therein,
the Holder of, and any Person that
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acquires a beneficial interest in, such Security agree that for United States
Federal, state and local tax purposes it is intended that such Security
constitute indebtedness.
Section 3.14 Shortening or Extension of Stated Maturity.
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, the Company shall have the right to (i)
shorten the Stated Maturity of the principal of the Securities of such series at
any time to any date not earlier than the first date on which the Company has
the right to redeem the Securities of such series, and (ii) extend the Stated
Maturity of the principal of the Securities of such series at any time at its
election for one or more periods, but in no event to a date later than the 49th
anniversary of the first Interest Payment Date following the Original Issue Date
of the Securities of such series; provided that, if the Company elects to
exercise its right to extend the Stated Maturity of the principal of the
Securities of such series pursuant to clause (ii), above, at the time such
election is made and at the time of extension (A) neither the Company nor the
Guarantor is in bankruptcy, otherwise insolvent or in liquidation, (B) the
Company is not in default in the payment of any interest or principal on such
Securities, (C) in the case of any series of Securities issued to an FPC Capital
Trust, such FPC Capital Trust is not in arrears on payments of Distributions on
the Preferred Securities issued by such FPC Capital Trust and no deferred
Distributions are accumulated and (D) such Securities are rated not less than
BBB- by S&P or Baa3 by Moody's, or the equivalent by any other nationally
recognized statistical orating organization. In the event the Company elects to
shorten or extend the Stated Maturity of the Securities of a particular series,
it shall give notice to the Trustee, no less than 30 and no more than 60 days
prior to the effectiveness thereof. The Trustee shall give notice of such
shortening or extension to the Holders promptly upon receipt.
Section 3.15 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such "CUSIP" numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for and as otherwise provided in this
Section 4.1) and the Trustee, on demand of and at the expense of the Company or
the Guarantor, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
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(A) all Securities theretofore authenticated and delivered (other than (i)
Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6 and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company or the Guarantor and thereafter repaid to the Company or
the Guarantor or discharged from such trust, as provided in Section 10.3) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year of the date of deposit, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company or the Guarantor,
and the Company or the Guarantor, in the case of Clause (B) (i), (ii)
or (iii) above, has deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an amount in the
currency or currencies in which the Securities of such series are
payable sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest
(including any Additional Interest) to the date of such deposit (in
the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be; and
(2) the Company or the Guarantor has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company or the Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company and the Guarantor to the Trustee under Section 6.7,
the obligations of the Trustee to any Authenticating Agent under Section 6.14
and, if money shall have been deposited with the Trustee pursuant to subclause
(B) of clause (1) of this Section, the obligations of the Trustee under Section
4.2 and the last paragraph of Section 10.3 shall survive.
Section 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust and
applied by the Trustee, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine,
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to the Persons entitled thereto, of the principal (and premium, if any) and
interest for the payment of which such money or obligations have been deposited
with or received by the Trustee.
Section 4.3 Satisfaction, Discharge and Defeasance of Securities of Any
Series.
Unless otherwise provided in the Board Resolution adopted pursuant to
Section 3.1 or an indenture supplemental hereto establishing the terms of the
Securities of any series, the Company or the Guarantor shall be deemed to have
paid and discharged the entire indebtedness on all the Outstanding Securities of
any such series and the Trustee, at the expense of the Company or the Guarantor,
shall execute proper instruments acknowledging satisfaction and discharge of
such indebtedness, when
(1) with respect to all Outstanding Securities of such series,
(A) the Company or the Guarantor has irrevocably deposited or caused
to be irrevocably deposited with the Trustee as trust funds in trust for
such purpose an amount sufficient to pay and discharge the entire
indebtedness on all Outstanding Securities of such series for principal
(and premium, if any) and interest (including any Additional Interest) to
the Stated Maturity or any Redemption Date as contemplated by the
penultimate paragraph of this Section 4.3, as the case may be; or
(B) the Company or the Guarantor has irrevocably deposited or caused
to be irrevocably deposited with the Trustee as obligations in trust for
such purpose an amount of trust funds as will, in the written opinion of
independent public accountants delivered to the Trustee, together with
predetermined and certain income to accrue thereon, without consideration
of any reinvestment thereof, be sufficient to pay and discharge when due
the entire indebtedness on all Outstanding Securities of such series for
principal (and premium, if any) and interest (including any Additional
Interest) to the Stated Maturity or any Redemption Date as contemplated by
the penultimate paragraph of this Section 4.3, as the case may be;
(2) the Company or the Guarantor has paid or caused to be paid all other
sums payable with respect to the Outstanding Securities of such series;
(3) the Company or the Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
the entire indebtedness on all Outstanding Securities of any such series
have been complied with; and
(4) the Company or the Guarantor has also delivered to the Trustee,
together with such Officers' Certificate, either:
(A) an instrument wherein the Company or the Guarantor,
notwithstanding the satisfaction and discharge of its indebtedness in
respect of the Outstanding Securities of such series, shall assume the
obligation (which shall be absolute and unconditional) to irrevocably
deposit with the Trustee such additional sums of money, if any, or
additional amounts (meeting the requirements of subsection (1) of this
Section 4.3), if any, or any combination
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thereof, at such time or times, as shall be necessary, together with the
money and/or amounts theretofore so deposited, to pay when due the
principal of and interest due and to become due on such Outstanding
Securities of such series or portions thereof, all in accordance with and
subject to the provisions of this Section 4.3; provided, however, that such
instrument may state that the obligation of the Company or the Guarantor to
make additional deposits as aforesaid shall be subject to the delivery to
the Company or the Guarantor by the Trustee of a notice asserting the
deficiency accompanied by an opinion of an independent public accountant of
nationally recognized standing, selected by the Trustee, showing the
calculation thereof; or
(B) an Opinion of Counsel, based on a change in law, to the effect
that the Holders of such Outstanding Securities of such series, or portions
of the principal amount 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.
Any deposits with the Trustee referred to in Section 4.3(1) above shall be
irrevocable and shall be made under the terms of an escrow trust agreement in
form and substance reasonably satisfactory to the Trustee. If any Outstanding
Securities of such series are to be redeemed prior to their Stated Maturity,
whether pursuant to any optional redemption provisions or in accordance with any
mandatory sinking fund requirement, the applicable escrow trust agreement shall
provide therefor and the Company or the Guarantor, as the case may be, shall
make such arrangements as are satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company or the Guarantor. If the Securities of such series are not to become due
and payable at their Stated Maturity or upon call for redemption within one (1)
year of the date of deposit, then the Company or the Guarantor shall give, not
later than the date of such deposit, notice of such deposit to the Holders of
Securities of such series.
Upon satisfaction of the conditions set forth in this Section 4.3 with
respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company or the Guarantor; provided, that neither the Company
nor the Guarantor shall be discharged from any payment obligations in respect of
Securities of such series which are deemed not to be Outstanding under clause
(iii) of the definition thereof if such obligations continue to be valid
obligations of the Company or the Guarantor under applicable law and provided
further that neither the Company nor the Guarantor shall be discharged from its
obligation to the Trustee under Section 6.7.
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ARTICLE V
REMEDIES
Section 5.1 Events of Default.
"Event of Default," wherever used herein with respect to the Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) the Company or the Guarantor defaults in the payment of any interest
upon any Security of that series, including any Additional Interest in respect
thereof, when it becomes due and payable, and continuance of such default for a
period of 30 days (subject to the deferral of any due date in the case of an
Extension Period); or
(2) the Company or the Guarantor defaults in the payment of the principal
of (or premium, if any, on) any Security of that series at its Maturity; or
(3) the Company or the Guarantor defaults in the performance, or breach, in
any material respect, of any of its covenants or warranties in this Indenture
(other than a covenant or warranty a default in the performance of which or the
breach of which is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 90 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 25% in principal amount
of the Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied; or
(4) the entry of a decree or order by a court having jurisdiction in the
premises adjudging the Company or the Guarantor a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or the Guarantor under
any applicable United States federal or state bankruptcy, insolvency,
reorganization or other similar law, or appointing a receiver, liquidator,
assignee, trustee, sequestration (or other similar official) of the Company or
the Guarantor or of any substantial part of its property or ordering the winding
up or liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days; or
(5) the institution by the Company or the Guarantor of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law, or the consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, sequestration (or
other similar official) of the Company or the Guarantor or of any substantial
part of its property, or the making by it of an assignment of the benefit of
creditors, or the admission by it in writing of its inability to pay its debts
generally as they become due and its willingness to be adjudicated a bankrupt,
or the taking of corporate action by the Company or the Guarantor in furtherance
of any such action; or
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(6) any other Event of Default provided with respect to Securities of that
series.
Section 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section
5.1(4) or 5.1(5)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all the Securities of
that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), provided that, in the case of
the Securities of a series issued to an FPC Capital Trust, if, upon an Event of
Default, the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series fail to declare the principal of all
the Securities of that series to be immediately due and payable, the holders of
at least 25% in aggregate liquidation amount of the corresponding series of
Preferred Securities then outstanding shall have such right by a notice in
writing to the Company, the Guarantor and the Trustee; and upon any such
declaration such principal amount (or specified portion thereof) of and the
accrued interest (including any Additional Interest) on all the Securities of
such series shall become immediately due and payable. Payment of principal and
interest (including any Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article XIII notwithstanding that such
amount shall become immediately due and payable as herein provided. If an Event
of Default specified in Section 5.1(4) or 5.1(5) with respect to Securities of
any series at the time Outstanding occurs, the principal amount of all the
Securities of that series (or, if the Securities of that series are Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms of that series) shall automatically, and without any
declaration or other action on the part of the Trustee or any Holder, become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before judgment or decree for payment
of the money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of not less than a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company or the Guarantor has paid or deposited with the Trustee a
sum sufficient to pay:
(A) all overdue installments of interest (including any Additional
Interest) on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of acceleration
and interest thereon at the rate borne by the Securities, and
(C) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel; and
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(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which has
become due solely by such acceleration, have been cured or waived as provided in
Section 5.13.
In the case of Securities of a series issued to an FPC Capital Trust, the
holders of not less than a majority in aggregate Liquidation Amount (as defined
in the Trust Agreement under which such FPC Capital Trust is formed) of the
related series of Preferred Securities issued by such FPC Capital Trust shall
also have the right to rescind and annul such declaration and its consequences
by written notice to the Company and the Trustee, subject to the satisfaction of
the conditions set forth in Clauses (1) and (2) above of this Section 5.2.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company and the Guarantor covenant that if:
(1) default is made in the payment of any installment of interest
(including any Additional Interest) on any Security when such interest becomes
due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (and premium, if
any, on) any Security at the Maturity thereof the Company or the Guarantor will,
upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders
of such Securities, the whole amount then due and payable on such Securities for
principal, including any sinking fund payment or analogous obligations (and
premium, if any) and interest (including any Additional Interest); and, in
addition thereto, all amounts owing the Trustee under Section 6.7.
If the Company or the Guarantor 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, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company, the Guarantor or any other obligor upon
the Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company, the Guarantor or any
other obligor upon the Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 5.4 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
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Company, the Guarantor or any other obligor upon the Securities or the property
of the Company, the Guarantor or of such other obligor or their creditors,
(a) the Trustee (irrespective of whether the principal of the Securities
of any series 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 (and premium, if
any) or interest (including any Additional Interest)) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest (including any Additional Interest) owing and
unpaid in respect of the Securities and to file such other papers or documents
as may be necessary or advisable and to take any and all actions as are
authorized under the Trust Indenture Act in order to have the claims of the
Holders and any predecessor to the Trustee under Section 6.7 allowed in any such
judicial proceedings; and
(ii) in particular, the Trustee shall be authorized to collect and receive
any moneys or other property payable or deliverable on any such claims and to
distribute the same in accordance with Section 5.6; and
(iii) any custodian, receiver, assignee, trustee, liquidator, sequesterator
(or other similar official) in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee for distribution in
accordance with Section 5.6, 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
amount due to it and any predecessor Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
Section 5.5 Trustee May Enforce Claim Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of all the amounts owing the Trustee and any predecessor Trustee
under Section 6.7, its agents and counsel, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been recovered.
Section 5.6 Application of Money Collected.
Any money or property collected or to be applied by the Trustee with
respect to a series of Securities 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 or property on account of principal (or
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premium, if any) or interest (including any Additional Interest), upon
presentation of the Securities 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 and any predecessor
Trustee under Section 6.7;
SECOND: Subject to Article XIII, to the payment of the amounts then due
and unpaid upon such series of Securities for principal (and premium, if any)
and interest (including any Additional Interest), 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 series of
Securities for principal (and premium, if any) and interest (including any
Additional Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
Section 5.7 Limitation on Suits.
No Holder of any Securities of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture or for the
appointment of a receiver, assignee, trustee, liquidator, sequesterator (or
other similar official) or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series 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;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in compliance with
such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of that series; 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 itself of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other Holders of Securities,
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 such Holders.
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Section 5.8 Unconditional Right of Holders to Receive Principal, Premium
and Interest; Direct Action by Holders of Preferred Securities.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right which is absolute and unconditional to receive
payment of the principal of (and premium, if any) and (subject to Section 3.7)
interest (including any Additional Interest) on such Security on the respective
Stated Maturities expressed in such Security (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder. In the case of Securities of a series issued to an FPC Capital Trust,
any holder of the corresponding series of Preferred Securities issued by such
FPC Capital Trust shall have the right, upon the occurrence of an Event of
Default described in Section 5.1(1) or 5.1(2), to institute a suit directly
against the Company or the Guarantor for enforcement of payment to such holder
of principal of (premium, if any) and (subject to Section 3.7) interest
(including any Additional Interest) on the Securities having a principal amount
equal to the aggregate Liquidation Amount (as defined in the Trust Agreement
under which such FPC Capital Trust is formed) of such Preferred Securities of
the corresponding series held by such holder.
Section 5.9 Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Preferred Securities has
instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee, such Holder or such holder of
Preferred Securities, then and in every such case the Company, the Guarantor,
the Trustee, the Holders and such holder of Preferred Securities shall, subject
to any determination in such proceeding, be restored severally and respectively
to their former positions hereunder, and thereafter all rights and remedies of
the Trustee, the Holders and the holders of Preferred Securities shall continue
as though no such proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.6, 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 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any Security or any
holder of any Preferred Security 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 and the right and remedy given to the holders of Preferred
Securities by Section 5.8 may be exercised
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from time to time, and as often as may be deemed expedient, by the Trustee, the
Holders or the holders of Preferred Securities, as the case may be.
Section 5.12 Control by Holders.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law or with
this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee shall have the
right to decline to follow such direction if a Responsible Officer or Officers
of the Trustee shall, in good faith, determine that the proceeding so directed
would be unjustly prejudicial to the Holders not joining in any such direction
or would involve the Trustee in personal liability.
Section 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series and, in the case of any Securities of a
series issued to an FPC Capital Trust, the holders of not less than a majority
in aggregate liquidation amount Preferred Securities issued by such FPC Capital
Trust may waive any past default hereunder and its consequences with respect to
such series except a default:
(1) in the payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article IX
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Any such waiver shall be deemed to be on behalf of the Holders of all the
Securities of such series or, in the case of a waiver by holders of Preferred
Securities issued by such FPC Capital Trust, by all holders of Preferred
Securities issued by such FPC Capital Trust.
Upon any such waiver, such default shall cease to exist, and any Event 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 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the
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enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken 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 principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on any Security on or after the
respective Stated Maturities expressed in such Security.
Section 5.15 Waiver of Usury, Stay or Extension Laws.
The Company and the Guarantor each covenant (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 usury, 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 and
the Guarantor each (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE VI
THE TRUSTEE
Section 6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, 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 person would exercise or use under the circumstances in the conduct of
his own affairs.
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(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) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer; unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
Holders pursuant to Section 5.12 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect
to the Securities of such series.
(d) 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 there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 6.2 Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder with respect to the
Securities of any series, the Trustee shall transmit by mail to all Holders of
Securities of such series, as their names and addresses appear in the Securities
Register, notice of such default, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of (or premium, if any) or interest (including any Additional
Interest) on any Security of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of Securities of such series; and provided, further,
that, in the case of any default of the character specified in Section 5.1(3),
no such notice to Holders of Securities of such series shall be given until at
least 30 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 with respect to Securities of such
series.
Section 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
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(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, Security or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company or the Guarantor mentioned
herein shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors of the Company or the Guarantor 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 Officers' Certificate of the Company or the Guarantor;
(d) the Trustee may consult with counsel 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 of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, indenture,
Security or other paper or document, but the Trustee in its discretion may make
such inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company and the
Guarantor, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 6.4 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company
and the Guarantor, and neither the Trustee nor any Authenticating Agent assumes
any responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture, the Guarantee or of the
Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company or the Guarantor of the
Securities or the proceeds thereof.
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Section 6.5 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Securities
Registrar or any other agent of the Company or the Guarantor, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 6.8 and 6.13, may otherwise deal with the Company and the
Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Securities Registrar or such other agent.
Section 6.6 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 any money received by it hereunder except as otherwise
agreed with the Company and the Guarantor.
Section 6.7 Compensation and Reimbursement.
The Company and the Guarantor agree:
(1) to pay to the Trustee from time to time reasonable compensation for all
services rendered by it hereunder in such amounts as the Company, the Guarantor
and the Trustee shall agree from time to time (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense (including the reasonable compensation and the
expenses and disbursements of its agents and counsel) incurred without
negligence or bad faith, arising out of or in connection with the acceptance or
administration of this trust or the performance of its duties hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. This indemnification shall survive the termination of this
Indenture and the resignation or removal of the Trustee.
To secure the Company's and the Guarantor's payment obligations in this
Section, the Company, the Guarantor and the Holders agree that the Trustee shall
have a lien prior to the Securities on all money or property held or collected
by the Trustee. Such lien shall survive the satisfaction and discharge of this
Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or any successor statute.
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Section 6.8 Disqualification; Conflicting Interests.
The Trustee for the Securities of any series issued hereunder shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act. Nothing
herein shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of said Section 310(b). The Trust
Agreement and the FPC Capital Guarantee are hereby excluded from the provision
of Section 310(b)(1) of the Trust Indenture Act.
Section 6.9 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 of America or of any State or Territory or the District of Columbia,
authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by United States federal, state, territorial or
District of Columbia authority, or
(b) a corporation or other Person organized and doing business under the
laws of a foreign government that is permitted to act as Trustee pursuant to a
rule, regulation or order of the Commission, authorized under such laws to
exercise corporate trust powers, 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,
in either case having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by United States federal or state
authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid 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. Neither the Company, the
Guarantor nor any Person directly or indirectly controlling, controlled by or
under common control with the Company or the Guarantor shall serve as Trustee
for the Securities of any series issued hereunder.
Section 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company and the
Guarantor. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
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(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company and the Guarantor.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after written
request therefor by the Company, the Guarantor or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 and shall
fail to resign after written request therefor by the Company, the Guarantor 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, (i) the Company or the Guarantor, acting pursuant to the
authority of a Board Resolution of its Board of Directors, may remove the
Trustee with respect to all Securities, or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause with respect
to the Securities of one or more series, the Company or the Guarantor, by a
Board Resolution of its Board of Directors, shall promptly appoint a successor
Trustee with respect to the Securities of that or those series. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company, the Guarantor
and the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee with
respect to the Securities of such series and supersede the successor Trustee
appointed by the Company or the Guarantor. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company, the
Guarantor or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Security for at least
six months may, subject to Section 5.14, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company or the Guarantor shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Securities of such series as their names and
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addresses appear in the Securities Register. Each notice shall include the name
of the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and the Guarantor 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, the Guarantor or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
Guarantor, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts, and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company, the Guarantor or any
successor Trustee, such retiring Trustee shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company and the
Guarantor shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
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(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 6.12 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 of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated, and in case any
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor Trustee or in
the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee shall have.
Section 6.13 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company or the
Guarantor (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Company or the Guarantor (or any such other obligor).
Section 6.14 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.6, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and the Guarantor and shall at all times be a corporation organized and
doing business under the laws of the United States of America, or of any State
or Territory or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000, except for Affiliates of the Trustee, and subject to supervision or
examination by United States 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
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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 all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee, the Company and the Guarantor. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent, the Company and the Guarantor. 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 and the Guarantor
and shall give notice of such appointment in the manner provided in Section 1.6
to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve. 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 provision of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 6.7.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the Securities referred to in the within-mentioned
Indenture.
Dated:___________________________
As Trustee
By:______________________________
As Authenticating Agent
By:______________________________
Authorized Officer
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after January 15 and July 15 in
each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such January 1 and July 1, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished,
excluding from any such list names and addresses received by the Trustee in its
capacity as Securities Registrar.
Section 7.2 Preservation of Information, Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
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(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided in the Trust
Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company, the Guarantor and the Trustee that neither the Company, the
Guarantor, the Trustee nor any agent of either of them shall be held accountable
by reason of the disclosure of information as to the names and addresses of the
Holders made pursuant to the Trust Indenture Act.
Section 7.3 Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act, at the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than 60 days following May 15 in
each calendar year, commencing after the first issuance of Securities under this
Indenture.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed and also with the Commission. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
Section 7.4 Reports by the Guarantor.
The Guarantor shall file with the Trustee and with the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided in the Trust Indenture Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act shall be filed with
the Trustee within 15 days after the same is required to be filed with the
Commission. Notwithstanding that the Guarantor may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Guarantor shall continue to file with the Commission and provide the
Trustee with the annual reports and the information, documents and other reports
which are specified in Sections 13 and 15(d) of the Exchange Act. The Guarantor
also shall comply with the other provisions of Section 314(a) of the Trust
Indenture Act.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1 Company or Guarantor May Consolidate, Etc., Only on Certain
Terms.
Neither the Company nor the Guarantor shall consolidate with or merge into
any other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and
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no Person shall consolidate with or merge into the Company or the Guarantor or
convey, transfer or lease its properties and assets substantially as an entirety
to the Company or the Guarantor, unless:
(1) in case the Company or the Guarantor shall consolidate with or merge
into another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the corporation formed by such
consolidation or into which the Company or the Guarantor is merged or the Person
which acquires by conveyance or transfer, or which leases, the properties and
assets of the Company or the Guarantor substantially as an entirety shall be a
corporation, partnership or trust 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 (including any Additional Interest) on all the Securities
and the performance of every covenant of this Indenture on the part of the
Company or the Guarantor, as the case may be, to be performed or observed;
(2) immediately after giving effect to 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 happened and be continuing;
(3) in the case of the Securities of a series issued to an FPC Capital
Trust, such consolidation, merger, conveyance, transfer or lease is permitted
under the related Trust Agreement and FPC Capital Guarantee and does not give
rise to any breach or violation of the related Trust Agreement or FPC Capital
Guarantee; and
(4) the Company or the Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and any such supplemental indenture comply
with this Article and that all conditions precedent herein provided relating to
such transaction have been complied with; and the Trustee, subject to Section
6.1, may rely upon such Officers' Certificate and Opinion of Counsel as
conclusive evidence that such transaction complies with this Section 8.1.
Section 8.2 Successor Corporation Substituted.
Upon any consolidation or merger by the Company or the Guarantor with or
into any other Person, or any conveyance, transfer or lease by the Company or
the Guarantor of its properties and assets substantially as an entirety to any
Person in accordance with Section 8.1, the successor corporation formed by such
consolidation or into which the Company or the Guarantor is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of; the Company or the Guarantor, as
the case may be, under this Indenture with the same effect as if such successor
Person had been named as the Company or the Guarantor, as the case may be,
herein; and in the event of any such conveyance, transfer or lease the Company
or the Guarantor, as the case may be, shall be discharged from all obligations
and covenants under the Indenture and the Securities and may be dissolved and
liquidated.
Such successor Person may cause to be signed, and may issue either in its
own name or in the name of the Company or the Guarantor, as the case may be, any
or all of the Securities issuable hereunder which theretofore shall not have
been signed by the Company or the Guarantor and delivered to the Trustee; and,
upon the order of such successor Person instead of the Company or
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the Guarantor, as the case may be, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Company or the Guarantor to the Trustee for
authentication pursuant to such provisions and any Securities which such
successor Person thereafter shall cause to be signed and delivered to the
Trustee on its behalf for the purpose pursuant to such provisions. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease, such
changes in phraseology and form may be made in the Securities thereafter to be
issued as may be appropriate.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company and the Guarantor, when
authorized by a Board Resolution of their respective Boards of Directors, 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:
(1) to evidence the succession of another Person to the Company or the
Guarantor, and the assumption by any such successor of the covenants of the
Company or the Guarantor herein and in the Securities contained; or
(2) to convey, transfer, assign, mortgage or pledge any property to or with
the Trustee or to surrender any right or power herein conferred upon the Company
or the Guarantor; or
(3) to establish the form or terms of Securities of any series as permitted
by Sections 2.1 or 3.1; or
(4) to add to the covenants of the Company or the Guarantor for the benefit
of the Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such series) or
to surrender any right or power herein conferred upon the Company or the
Guarantor; or
(5) to add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (and if such additional Events of Default are
to be for the benefit of less than all series of Securities, stating that such
additional Events of Default are expressly being included solely for the benefit
of such series); or
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(6) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
or
(7) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this clause (7) shall not
adversely affect the interest of the Holders of Securities of any series in any
material respect or, in the case of the Securities of a series issued to an FPC
Capital Trust and for so long as any of the corresponding series of Preferred
Securities issued by such FPC Capital Trust shall remain outstanding, the
holders of such Preferred Securities; or
(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 6.11(b); or
(9) to comply with the requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act.
Section 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Guarantor and the Trustee, the Company and the Guarantor, when authorized by a
Board Resolution of their respective Board of Directors, 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 or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) except to the extent permitted by Section 3.11 or as otherwise
specified as contemplated by Section 2.1 or Section 3.1 with respect to the
deferral of the payment of interest on the Securities of any series, change the
Stated Maturity of the principal of; or any installment of interest (including
any Additional Interest) on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or reduce any premium payable upon the
redemption thereof; or reduce the amount of principal of a Discount Security
that would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, or change the place of payment where, or the
coin or currency in which, any Security or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding Securities
of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of
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whose Holders is required for any waiver of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences provided
for in this Indenture, or
(3) modify any of the provisions of this Section, Section 5.13 or Section
10.5, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Security affected thereby; or
(4) modify the provisions in Article XIII of this Indenture with respect to
the subordination of Outstanding Securities of any series in a manner adverse to
the Holders thereof; or
(5) reduce any amount payable under, delay or defer the required time of
payment under, or impair the right to institute suit to enforce any payment
under the Guarantees;
provided, further, that, in the case of the Securities of a series issued to an
FPC Capital Trust, so long as any of the corresponding series of Preferred
Securities issued by such FPC Capital Trust remains outstanding, (i) no such
amendment shall be made that adversely affects the holders of such Preferred
Securities in any material respect, and no termination of this Indenture shall
occur, and no waiver of any Event of Default or compliance with any covenant
under this Indenture shall be effective, without the prior consent of the
holders of at least a majority of the aggregate liquidation preference of such
Preferred Securities then outstanding unless and until the principal (and
premium, if any) of the Securities of such series and all accrued and, subject
to Section 3.7, unpaid interest (including any Additional Interest) thereon have
been paid in full and (ii) no amendment shall be made to Section 5.8 of this
Indenture that would impair the rights of the holders of Preferred Securities
provided therein without the prior consent of the holders of each Preferred
Security then outstanding unless and until the principal (and premium, if any)
of the Securities of such series and all accrued and (subject to Section 3.7)
unpaid interest (including any Additional Interest) thereon have been paid in
full.
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Securities or Preferred Securities,
or which modifies the rights of the Holders of Securities or holders of
Preferred Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities or holders of Preferred Securities of any other series.
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.
Section 9.3 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 6.1) shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel of the Company and the Guarantor stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture, and that all conditions precedent have been complied with. The
Trustee may, but shall not be obligated
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to, enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Section 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the mist Indenture Act as then in effect.
Section 9.6 Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Company and the Guarantor, bear a notation in form approved by the Company
and the Guarantor as to any matter provided for in such supplemental indenture.
If the Company and the Guarantor shall so determine, new Securities of any
series so modified as to conform, in the opinion of the Company and the
Guarantor, to any such supplemental indenture may be prepared and executed by
the Company and the Guarantor and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
Section 10.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest and any other amounts payable on the Securities of that
series in accordance with the terms of such Securities and this Indenture.
Whenever in this Indenture or the Securities there is a reference in any context
to the payment of interest on the Securities, such mention shall be deemed to
include mention of the payments of the Additional Interest to the extent that
Additional Interest is payable on the Securities and express mention of the
payment of Additional Interest (if applicable) in any provisions hereof shall
not be construed as excluding Additional Interest in those provisions hereof
where such express mention is not made.
Section 10.2 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities, an office or agency where Securities of that series may be presented
or surrendered for payment and an office or agency where Securities of that
series may be surrendered for transfer or exchange and where
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notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. The Company initially appoints the
Trustee, acting through its Corporate Trust Office, as its agent for said
purposes. The Company will give prompt written notice to the Trustee of any
change in the location of any such office or agency. If at any time the Company
shall fail to maintain such office or agency or shall fail to furnish the
Trustee with the address thereof; such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
of such purposes, and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each Place of
Payment for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation and any change in
the location of any such office or agency.
Section 10.3 Money or Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, prior
to 10:00 a.m. New York City time on each due date of the principal of or
interest on any Securities, deposit with a Paying Agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal and
premium (if any) or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its failure so to act.
The Company will cause each Paying Agent other than 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 will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on 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;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in the making of any payment of principal (and
premium, if any) or interest;
(3) 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
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(4) comply with the provisions of the Trust Indenture Act applicable to it
as a Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, 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, 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 on any Security and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall
(unless otherwise required by mandatory provision of applicable escheat or
abandoned or unclaimed property law) be paid on Company Request to the Company,
or (if then held by the Company) shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law) be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof; 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 repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice 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 publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 10.4 Statement as to Compliance.
The Company and the Guarantor shall deliver to the Trustee, within 120 days
after the end of each calendar year of the Company ending after the date hereof;
an Officers' Certificate complying with Section 314(a)(4) of the Trust Indenture
Act and covering the preceding calendar year, stating whether or not to the best
knowledge of the signers thereof the Company or the Guarantor is in default in
the performance, observance or fulfillment of or compliance with any of the
terms, provisions, covenants and conditions of this Indenture, and if the
Company or the Guarantor shall be in default, specifying all such defaults and
the nature and status thereof of which they may have knowledge. For the purpose
of this Section 10.4, compliance shall be determined without regard to any grace
period or requirement of notice provided pursuant to the terms of this
Indenture.
Section 10.5 Waiver of Certain Covenants.
The Company and the Guarantor may omit in any particular instance to comply
with any covenant or condition provided pursuant to Section 3.1, 9.1(3) or
9.1(4) with respect to the Securities of any series, if before or after the time
for such compliance the Holders of at least a majority in principal amount of
the Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the
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extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the Guarantor in respect of any such covenant or
condition shall remain in full force and effect.
Section 10.6 Additional Sums.
In the case of the Securities of a series issued to an FPC Capital Trust,
so long as no Event of Default has occurred and is continuing and except as
otherwise specified as contemplated by Section 2.1 or Section 3.1, in the event
that (i) an FPC Capital Trust is the Holder of all of the Outstanding Securities
of such series, (ii) a Tax Event in respect of such FPC Capital Trust shall have
occurred and be continuing and (iii) neither the Company nor the Guarantor shall
have (A) redeemed the Securities of such series pursuant to Section 11.7(b) or
(B) terminated such FPC Capital Trust pursuant to Section 9.2(b) of the related
Trust Agreement, the Company or the Guarantor shall pay to such FPC Capital
Trust (and its permitted successors or assigns under the related Trust
Agreement) for so long as such FPC Capital Trust (or its permitted successor or
assignee) is the registered holder of any Securities of such series, such
additional amounts as may be necessary in order that the amount of Distributions
(including any Additional Amounts (as defined in such Trust Agreement)) then due
and payable by such FPC Capital Trust on the related Preferred Securities and
Common Securities that at any time remain outstanding in accordance with the
terms thereof shall not be reduced as a result of any Additional Taxes (the
"Additional Sums"). Whenever in this Indenture or the Securities there is a
reference in any context to the payment of principal of, premium, if any, or
interest on the Securities, such mention shall be deemed to include mention of
the payments of the Additional Sums provided for in this paragraph to the extent
that, in such context, Additional Sums are, were or would be payable in respect
thereof pursuant to the provisions of this paragraph and express mention of the
payment of Additional Sums (if applicable) in any provisions hereof shall not be
construed as excluding Additional Sums in those provisions hereof where such
express mention is not made; provided, however, that the deferral of the payment
of interest pursuant to Section 3.11 or the Securities shall not defer the
payment of any Additional Sums that may be due and payable.
Section 10.7 Additional Covenants.
The Company and the Guarantor covenant and agree with each Holder of
Securities of each series that it shall not, (a) declare or pay any dividends or
distributions on, or redeem purchase, acquire or make a liquidation payment with
respect to, any shares of the its capital stock, or (b) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or redeem
any debt securities issued by it that rank pari passu with or junior in interest
to the Securities of such series or make any guarantee payments with respect to
any guarantee by the Company or the Guarantor of debt securities of any
subsidiary of the Company or the Guarantor if such guarantee ranks pari passu
with or junior in interest to the Securities (other than (a) dividends or
distributions in Common Stock, (b) any declaration of a dividend in connection
with the implementation of a Rights Plan, the issuance of any rights, of any
Common Stock or any class or series of preferred stock of the Company or the
Guarantor or of any other property under any Rights Plan or the repurchase of
any rights distributed pursuant to a Rights Plan, (c) payments under any FPC
Capital Guarantee, and (d) purchases of Common Stock related to the issuance of
Common Stock under any of the Guarantor's or the Company's benefit plans for
their respective directors, officers or employees), if at such time (i) there
shall have occurred any event of which the Company or the
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Guarantor has actual knowledge that (A) with the giving of notice or the lapse
of time or both, would constitute an Event of Default with respect to the
Securities of such series and (B) in respect of which the neither the Company
nor the Guarantor shall have taken reasonable steps to cure, (ii) if the
Securities of such series are held by a FPC Capital Trust, the Company shall be
in default with respect to its payment of any obligations under the FPC Capital
Guarantee relating to the Preferred Securities issued by such FPC Capital Trust
or (iii) the Company shall have given notice of its election to begin an
Extension Period with respect to the Securities of such series as provided
herein and shall not have rescinded such notice, or such Extension Period, or
any extension thereof, shall be continuing.
The Company also covenants with each Holder of Securities of a series
issued to an FPC Capital Trust (i) to maintain directly or indirectly 100%
ownership of the Common Securities of such FPC Capital Trust; provided, however,
that any permitted successor of the Company hereunder may succeed to the
Company's ownership of such Common Securities, (ii) not to voluntarily
terminate, wind-up or liquidate such FPC Capital Trust, except (a) in connection
with a distribution of the Securities of such series to the holders of Preferred
Securities in liquidation of such FPC Capital Trust or (b) in connection with
certain mergers, consolidations or amalgamations permitted by the related Trust
Agreement and (iii) to use its reasonable efforts, consistent with the terms and
provisions of such Trust Agreement, to cause such FPC Capital Trust to remain
classified as a grantor trust and not an association taxable as a corporation
for United States federal income tax purposes.
ARTICLE XI
REDEMPTION OF DEBT SECURITIES
Section 11.1 Applicability of This Article.
Redemption of Debt Securities of any series (whether by operation of a
sinking fund or otherwise) as permitted or required by any form of Debt Security
issued pursuant to this Indenture shall be made in accordance with such form of
Debt Security and this Article; provided, however, that if any provision of any
such form of Debt Security shall conflict with any provision of this Article,
the provision of such form of Debt Security shall govern. Except as otherwise
set forth in the form of Debt Security for such series, each Debt Security of
such series shall be subject to partial redemption only in the amount of $25 or,
in the case of the Debt Securities of a series issued to an FPC Capital Trust,
$25, or integral multiples thereof.
Section 11.2 Election to Redeem; Notice to Trustee.
The election of the Company or Guarantor to redeem any Debt Securities
shall be evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company or Guarantor of less than all of the
Debt Securities of any particular series and having the same terms, the Company
or Guarantor shall, not less than 30 nor more than 60 days prior to the
Redemption Date (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such date and of the principal amount of Debt Securities
of that series to be redeemed. In the case of any redemption of Debt Securities
prior to the expiration of any restriction on such redemption provided
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in the terms of such Debt Securities, the Company or Guarantor shall furnish the
Trustee with an Officers' Certificate and an Opinion of Counsel evidencing
compliance with such restriction.
Section 11.3 Selection of Debt Securities to be Redeemed.
If less than all the Debt Securities of any series are to be redeemed
(unless all the Debt Securities of such series and of a specified tenor are to
be redeemed or unless such redemption affects only a single Debt Security), the
particular Debt Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding Debt
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of a portion of the principal amount of any Debt
Security of such series, provided that the unredeemed portion of the principal
amount of any Debt Security shall be in an authorized denomination (which shall
not be less than the minimum authorized denomination) for such Debt Security. If
less than all the Debt Securities of such series and of a specified tenor are to
be redeemed (unless such redemption affects only a single Debt Security), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Debt
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for partial redemption and 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 Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt Security which has
been or is to be redeemed. If the Company shall so direct, Debt Securities
registered in the name of the Company, any Affiliate or any Subsidiary thereof
shall not be included in the Debt Securities selected for redemption.
Section 11.4 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not later than the thirtieth day, and not earlier than the sixtieth day,
prior to the Redemption Date, to each Holder of Debt Securities to be redeemed,
at the address of such Holder as it appears in the Securities Register.
With respect to Debt Securities of each series to be redeemed, each notice
of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Debt Securities of such particular series
and having the same terms are to be redeemed, the identification (and, in the
case of partial redemption, the respective principal amounts) of the particular
Debt Securities to be redeemed;
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(d) that on the Redemption Date, the Redemption Price will become due and
payable upon each such Debt Security or portion thereof; and that interest
thereon, if any, shall 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
(f) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Debt Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall not be
revocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Debt Security designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debt Security.
Section 11.5 Deposit of Redemption Price.
Prior to 10:00 a.m. New York City time on the Redemption Date specified in
the notice of redemption given as provided in Section 11.4, the Company will
deposit with the Trustee or with one or more Paying Agents (or if the Company is
acting as its own Paying Agent, the Company will segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the Redemption
Price of; and any accrued interest (including Additional Interest) on, all the
Securities which are to be redeemed on that date.
Section 11.6 Payment of Debt Securities Called for Redemption.
If any notice of redemption has been given as provided in Section 11.4, the
Debt Securities or portion of Debt Securities with respect to which such notice
has been given shall become due and payable on the date and at the place or
places stated in such notice at the applicable Redemption Price. On presentation
and surrender of such Debt Securities at a Place of Payment in said notice
specified, the said securities or the specified portions thereof shall be paid
and redeemed by the Company at the applicable Redemption Price, together with
accrued interest (including any Additional Interest) to the Redemption Date;
provided, however, that, unless otherwise specified as contemplated by Section
3.1, installments of interest whose Stated Maturity is on or prior to the
Redemption Date will be payable to the Holders of such Debt Securities, or one
or more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of Section
3.7.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder thereof; at
the expense of the Company, a new Security or Securities of the same series, of
authorized denominations, in aggregate principal amount equal to the unredeemed
portion of the Security so presented and having the same Original Issue Date,
Stated Maturity and terms. If a Global Security is so surrendered, such new
Security will also be a new Global Security.
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If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal of and premium, if any, on such
Security shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
Section 11.7 Right of Redemption of Debt Securities Initially Issued to
an FPC Capital Trust.
In the case of the Debt Securities of a series initially issued to an FPC
Capital Trust, except as otherwise specified as contemplated by Section 3.1, the
Company, at its option, may redeem such Debt Securities (i) on or after the date
five years after the Original Issue Date of such Debt Securities, in whole at
any time or in part from time to time, or (ii) upon the occurrence and during
the continuation of a Special Event, at any time within 90 days following the
occurrence of such Special Event in respect of such FPC Capital Trust, in whole
(but not in part), in each case at a Redemption Price equal to 100% of the
principal amount thereof.
ARTICLE XII
SINKING FUNDS
Section 12.1 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Debt Securities of any series except as otherwise specified as
contemplated by Section 3.1 for such Debt Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Debt Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any sinking fund payment in excess of such minimum amount
which is permitted to be made by the terms of such Debt Securities of any series
is herein referred to as an "optional sinking fund payment". If provided for by
the terms of any Debt Securities of any series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 12.2. Each
sinking fund payment shall be applied to the redemption of Debt Securities of
any series as provided for by the terms of such Debt Securities.
Section 12.2 Satisfaction of Sinking Fund Payments with Debt Securities.
In lieu of making all or any part of a mandatory sinking fund payment with
respect to any Debt Securities of a series in cash, the Company may at its
option, at any time no more than 16 months and no less than 30 days prior to the
date on which such sinking fund payment is due, deliver to the Trustee Debt
Securities of such series (together with the unmatured coupons, if any,
appertaining thereto) theretofore purchased or otherwise acquired by the
Company, or credit securities previously cancelled or otherwise delivered to the
Trustee for cancellation, except Debt Securities of such series that have been
redeemed through the application of mandatory or optional sinking fund payments
pursuant to the terms of the Debt Securities of such series, accompanied by a
Company Order instructing the Trustee to cancel such Debt Securities if not
previously cancelled or credit such obligations and stating that the Debt
Securities of such series were originally issued
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by the Company by way of bona fide sale or other negotiation for value; provided
that the Debt Securities to be so credited have not been previously so credited.
The Debt Securities to be so credited shall be received and credited for such
purpose by the Trustee at the Redemption Price for such Debt Securities, as
specified in the Debt Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 12.3 Redemption of Debt Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
such Debt Securities pursuant to the terms of such Debt Securities, the portion
thereof; if any, which is to be satisfied by payment of cash in the currency in
which the Debt Securities of such series are payable (except as provided
pursuant to Section 3.1) and the portion thereof; if any, which is to be
satisfied by delivering and crediting Debt Securities pursuant to Section 12.2
and will also deliver to the Trustee any Securities to be so delivered. Such
Officers' Certificate shall be irrevocable and upon its delivery the Company and
the Guarantor shall be obligated to make the cash payment or payments therein
referred to, if any, on or before the succeeding sinking fund payment date. In
the case of the failure of the Company to deliver such Officers' Certificate
(or, as required by this Indenture, the Debt Securities and coupons, if any,
specified in such Officers' Certificate), the sinking fund payment due on the
succeeding sinking fund payment date for such series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of the Debt
Securities of such series subject to a mandatory sinking fund payment without
the right to deliver or credit securities as provided in Section 12.2 and
without the right to make the optional sinking fund payment with respect to such
series at such time.
Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made with respect
to the Debt Securities of any particular series shall be applied by the Trustee
(or by the Company if the Company is acting as its own Paying Agent) on the
sinking fund payment date on which such payment is made (or, if such payment is
made before a sinking fund payment date, on the sinking fund payment date
immediately following the date of such payment) to the redemption of Debt
Securities of such series at the Redemption Price specified in such Debt
Securities with respect to the sinking fund. Any sinking fund moneys not so
applied or allocated by the Trustee (or, if the Company is acting as its own
Paying Agent, segregated and held in trust by the Company as provided in Section
10.3) for such series and together with such payment (or such amount so
segregated) shall be applied in accordance with the provisions of this Section
12.3. Any and all sinking fund moneys with respect to the Debt Securities of any
particular series held by the Trustee (or if the Company is acting as its own
Paying Agent, segregated and held in trust as provided in Section 10.3) on the
last sinking fund payment date with respect to Debt Securities of such series
and not held for the payment or redemption of particular Debt Securities of such
series shall be applied by the Trustee (or by the Company if the Company is
acting as its own Paying Agent), together with other moneys, if necessary, to be
deposited (or segregated) sufficient for the purpose, to the payment of the
principal of the Debt Securities of such series at Maturity. The Trustee shall
select the Debt Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 11.3 and cause notice of the redemption thereof
to be given in the name of and at the expense of the Company in the manner
provided in Section 11.4. Such notice having been duly given, the redemption of
such Debt
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Securities shall be made upon the terms and in the manner stated in Section
11.6. On or before each sinking fund payment date, the Company shall pay to the
Trustee (or, if the Company is acting as its own Paying Agent, the Company shall
segregate and hold in trust as provided in Section 10.3) in cash a sum in the
currency in which Debt Securities of such series are payable (except as provided
pursuant to Section 3.1) equal to the principal and any interest accrued to the
Redemption Date for Debt Securities or portions thereof to be redeemed on such
sinking fund payment date pursuant to this Section 12.3.
Neither the Trustee nor the Company shall redeem any Debt Securities of a
series with sinking fund moneys or mail any notice of redemption of Debt
Securities of such series by operation of the sinking fund for such series
during the continuance of a default in payment of interest, if any, on any Debt
Securities of such series or of any Event of Default (other than an Event of
Default occurring as a consequence of this paragraph) with respect to the Debt
Securities of such series, except that if the notice of redemption shall have
been provided in accordance with the provisions hereof; the Trustee (or the
Company, if the Company is then acting as its own Paying Agent) shall redeem
such Debt Securities if cash sufficient for that purpose shall be deposited with
the Trustee (or segregated by the Company) for that purpose in accordance with
the terms of this Article XII. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default shall
occur and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the
payment of the Debt Securities and coupons, if any, of such series; provided,
however, that in case such default or Event of Default shall have been cured or
waived herein, such moneys shall thereafter be applied on the next sinking fund
payment date for the Debt Securities of such series on which such moneys may be
applied pursuant to the provisions of this Section 12.3.
ARTICLE XIII
SUBORDINATION OF SECURITIES
Section 13.1 Securities Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of a Debt Security, by
its acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article, the payment of the
principal of (and premium, if any) and interest (including any Additional
Interest) on each and all of the Debt Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Debt of the Company. The Guarantor covenants and agrees, and each Holder
of a Guarantee, by its acceptance thereof, likewise covenants and agrees, that
to the extent and in the manner hereinafter set forth in this Article, the
obligation of the Guarantor under each and all of the Guarantees are expressly
made subordinate and subject in right of payment of the prior payment in full of
all Senior Debt of the Guarantor.
Section 13.2 Payment Over of Proceeds Upon Dissolution, Etc.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or the Guarantor, as the case may be
(each such event, if any, herein sometimes referred
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to as a "Proceeding"), then the holders of Senior Debt of the Company or the
Guarantor, as the case may be, shall be entitled to receive payment in full of
all Allocable Amounts of such Senior Debt, or provision shall be made for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt of the Company or the Guarantor, as the case may be,
before the Holders of the Securities are entitled to receive or retain any
payment or distribution of any kind or character, whether in cash, property or
securities (including any payment or distribution which may be payable or
deliverable by reason of the payment of any other Debt of the Company or the
Guarantor, as the case may be (including any series of the Securities),
subordinated to the payment of the Securities, such payment or distribution
being hereinafter referred to as a "Junior Subordinated Payment"), on account of
principal of (or premium, if any) or interest (including any Additional
Interest) on the Debt Securities or the obligation of the Guarantor under the
Guarantees or on account of the purchase or other acquisition of Securities by
the Company or the Guarantor and to that end the holders of Senior Debt of the
Company or the Guarantor, as the case may be, shall be entitled to receive, for
application to the payment thereof; any payment or distribution of any kind or
character, whether in cash, property or securities, including any Junior
Subordinated Payment, which may be payable or deliverable in respect of the
Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company or the Guarantor of any kind or
character, whether in cash, property or securities, including any Junior
Subordinated Payment, before all Allocable Amounts of all Senior Debt of the
Company or the Guarantor, as the case may be, are paid in full or payment
thereof is provided for in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt of the Company or the Guarantor, as
the case may be, and if such fact shall, at or prior to the time of such payment
or distribution, have been made known to the Trustee or, as the case may be,
such Holder, then and in such event such payment or distribution shall be paid
over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company or the Guarantor, as the case may be, for
application to the payment of all Allocable Amounts of all Senior Debt of the
Company or the Guarantor, as the case may be, remaining unpaid, to the extent
necessary to pay all Allocable Amounts of all Senior Debt of the Company or the
Guarantor, as the case may be, in full, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Debt of the Company or
the Guarantor, as the case may be.
For purposes of this Article only, the words "any payment or distribution
of any kind or character, whether in cash, property or securities" shall not be
deemed to include shares of stock of the Company or the Guarantor as reorganized
or readjusted, or securities of the Company or the Guarantor or any other
corporation provided for by a plan of reorganization or readjustment which
securities are subordinated in right of payment to all then outstanding Senior
Debt of the Company or the Guarantor, as the case may be, to substantially the
same extent as the Securities are so subordinated as provided in this Article.
The consolidation of the Company or the Guarantor with, or the merger of the
Company or the Guarantor into, another Person or the liquidation or dissolution
of the Company or the Guarantor following the sale of all or substantially all
of its properties and assets as an entirety to another Person upon the terms and
conditions set forth in Article VIII shall not be deemed a Proceeding for the
purposes of this Section if the Person formed by such consolidation or into
which the Company or the Guarantor is merged or the Person which acquires
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by sale such properties and assets as an entirety, as the case may be, shall, as
a part of such consolidation, merger, or sale comply with the conditions set
forth in Article VIII.
Section 13.3 Prior Payment to Senior Debt Upon Acceleration of
Securities.
In the event that any Debt Securities are declared due and payable before
their Stated Maturity, then and in such event the holders of the Senior Debt of
the Company or the Guarantor, as the case may be, outstanding at the time such
Debt Securities so become due and payable shall be entitled to receive payment
in full of all Allocable Amounts due on or in respect of such Senior Debt
(including any amounts due upon acceleration), or provision shall be made for
such payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Debt of the Company or the Guarantor, as the case may
be, before the Holders of the Securities are entitled to receive any payment or
distribution of any kind or character, whether in cash, properties or securities
(including any Junior Subordinated Payment) by the Company or the Guarantor on
account of the principal of (or premium, if any) or interest (including any
Additional Interest) on the Debt Securities or the obligations of the Guarantor
under the Guarantees or on account of the purchase or other acquisition of
Securities by the Company or the Guarantor; provided, however, that nothing in
this Section shall prevent the satisfaction of any sinking fund payment in
accordance with this Indenture or as otherwise specified as contemplated by
Section 3.1 for the Debt Securities of any series by delivering and crediting
pursuant to Section 12.2 or as otherwise specified as contemplated by Section
3.1 for the Debt Securities of any series Debt Securities which have been
acquired (upon redemption or otherwise) prior to such declaration of
acceleration.
In the event that, notwithstanding the foregoing, the Company or the
Guarantor shall make any payment to the Trustee or the Holder of any Security
prohibited by the foregoing provisions of this Section, and if such fact shall,
at or prior to the time of such payment, have been made known to the Trustee or,
as the case may be, such Holder, then and in such event such payment shall be
paid over and delivered forthwith to the Company or the Guarantor, as the case
may be.
The provisions of this Section shall not apply to any payment with respect
to which Section 13.2 would be applicable.
Section 13.4 No Payment When Senior Debt in Default.
(a) In the event and during the continuation of any default in the payment
of principal of (or premium, if any) or interest on any Senior Debt of the
Company or the Guarantor, or in the event that any event of default with respect
to any Senior Debt of the Company or the Guarantor shall have occurred and be
continuing and shall have resulted in such Senior Debt becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable, unless and until such event of default shall have been
cured or waived or shall have ceased to exist and such acceleration shall have
been rescinded or annulled, or (b) in the event any judicial proceeding shall be
pending with respect to any such default in payment or such event or default,
then no payment or distribution of any kind or character, whether in cash,
properties or securities (including any Junior Subordinated Payment) shall be
made by the Company or the Guarantor, as the case may be, on account of
principal of (or premium, if any) or interest (including any Additional
Interest), if any, on the Debt Securities or the obligations of the Guarantor
under the Guarantees or on account of the purchase or other acquisition of
Securities by the Company or the Guarantor, in each case unless and
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until all Allocable Amounts of such Senior Debt are paid in full; provided,
however, that nothing in this Section shall prevent the satisfaction of any
sinking fund payment in accordance with this Indenture or as otherwise specified
as contemplated by Section 3.1 for the Debt Securities of any series by
delivering and crediting pursuant to Section 12.2 or as otherwise specified as
contemplated by Section 3.1 for the Debt Securities of any series Debt
Securities which have been acquired (upon redemption or otherwise) prior to such
default in payment or event of default.
In the event that, notwithstanding the foregoing, the Company or the
Guarantor shall make any payment to the Trustee or the Holder of any Security
prohibited by the foregoing provisions of this Section, and if such fact shall,
at or prior to the time of such payment, have been made known to the Trustee or,
as the case may be, such Holder, then and in such event such payment shall be
paid over and delivered forthwith to the Company or the Guarantor, as the case
may be.
The provisions of this Section shall not apply to any payment with respect
to which Section 13.2 would be applicable.
Section 13.5 Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent (a) the Company or the Guarantor, as the case
may be, at any time except during the pendency of any Proceeding with respect to
it referred to in Section 13.2 or under the conditions described in Sections
13.3 and 13.4, from making payments at any time of principal of (and premium, if
any) or interest (including Additional Interest) on the Debt Securities or the
obligations of the Guarantor under the Guarantees, or (b) the application by the
Trustee of any money deposited with it hereunder to the payment of or on account
of the principal of (and premium, if any) or interest (including any Additional
Interest) on the Debt Securities or the retention of such payment by the
Holders, if; at the time of such application by the Trustee, it did not have
knowledge that such payment would have been prohibited by the provisions of this
Article.
Section 13.6 Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all amounts due or to become due on all
Senior Debt of the Company or the Guarantor, as the case may be, or the
provision for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt of the Company or the Guarantor, as
the case may be, the Holders of the Securities shall be subrogated to the extent
of the payments or distributions made to the holders of such Senior Debt
pursuant to the provisions of this Article (equally and ratably with the holders
of all indebtedness of the Company or the Guarantor, as the case may be, which
by its express terms is subordinated to Senior Debt of the Company or the
Guarantor, as the case may be, to substantially the same extent as the
Securities are subordinated to the Senior Debt of the Company or the Guarantor,
as the case may be, and is entitled to like rights of subrogation by reason of
any payments or distributions made to holders of such Senior Debt) to the rights
of the holders of such Senior Debt to receive payments and distributions of
cash, property and securities applicable to the Senior Debt of the Company or
the Guarantor, as the case may be, until the principal of (and premium, if any)
and interest on the Debt Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior Debt of
the Company or the Guarantor, as the case may be, of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of
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this Article, and no payments over pursuant to the provisions of this Article to
the holders of Senior Debt of the Company or the Guarantor, as the case may be,
by Holders of the Securities or the Trustee, shall, as among the Company or the
Guarantor, as the case may be, its creditors other than holders of its Senior
Debt, and the Holders of the Securities, be deemed to be a payment or
distribution by the Company or the Guarantor to or on account of its Senior
Debt.
Section 13.7 Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Debt of the Company or the Guarantor, as the case may
be, on the other hand. Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall (a) impair, as between
the Company or the Guarantor and the Holders of the Securities, the obligations
of the Company and the Guarantor, which are absolute and unconditional, to pay
to the Holders of the Securities the principal of (and premium, if any) and
interest (including any Additional Interest) on the Securities as and when the
same shall become due and payable in accordance with their terms; or (b) affect
the relative rights against the Company and the Guarantor of the Holders of the
Securities and creditors of the Company and the Guarantor other than their
rights in relation to the holders of Senior Debt or the Guarantor, as the case
may be; or (c) prevent the Trustee or the Holder of any Security from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture including, without limitation, filing and voting claims in any
Proceeding with respect to the Company or the Guarantor, as the case may be,
subject to the rights, if any, under this Article of the holders of Senior Debt
with respect to the Company or the Guarantor, as the case may be, to receive
cash, property and securities otherwise payable or deliverable to the Trustee or
such Holder.
Section 13.8 Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof authorizes and
directs the Trustee on his or her behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
Section 13.9 No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt with respect to
the Company or the Guarantor, as the case may be, to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or the Guarantor, as the case
may be, or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by the Company or the Guarantor, as the case may be, with
the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof that any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the immediately preceding
paragraph, the holders of Senior Debt with respect to the Company or the
Guarantor, as the case may be, may, at any time and from to time, without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without impairing
or releasing the subordination provided in this Article or the obligations
hereunder of the Holders
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of the Securities to the holders of such Senior Debt, do any one or more of the
following: (i) change the manner, place or terms of payment or extend the time
of payment of; or renew or alter, Senior Debt with respect to the Company or the
Guarantor, as the case may be, or otherwise amend or supplement in any manner
Senior Debt with respect to the Company or the Guarantor, as the case may be, or
any instrument evidencing the same or any agreement under which Senior Debt with
respect to the Company or the Guarantor, as the case may be, is outstanding;
(ii) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Debt with respect to the Company or the
Guarantor, as the case may be; (iii) release any Person liable in any manner for
the collection of Senior Debt with respect to the Company or the Guarantor, as
the case may be; and (iv) exercise or refrain from exercising any rights against
the Company, the Guarantor and any other Person.
Section 13.10 Notice to Trustee.
The Company and the Guarantor shall each give prompt written notice to the
Trustee of any fact known to it which would prohibit the making of any payment
to or by the Trustee in respect of the Securities. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities, unless and until the Trustee shall have received written notice
thereof from the Company or the Guarantor or a holder of Senior Debt thereof or
from any trustee, agent or representative therefor; provided, however, that if
the Trustee shall not have received the notice provided for in this Section at
least two Business Days prior to the date upon which by the terms hereof any
monies may become payable for any purpose (including, without limitation, the
payment of the principal of (and premium, if any) or interest (including any
Additional Interest) on any Debt Security), then, anything herein contained to
the contrary notwithstanding, the Trustee shall have full power and authority to
receive such monies and to apply the same to the purpose for which they were
received and shall not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date.
Subject to the provisions of Section 6.1, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Debt of the Company or the Guarantor, as the case may
be (or a trustee therefor), to establish that such notice has been given by a
holder of Senior Debt of the Company or the Guarantor, as the case may be (or a
trustee therefor). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Senior Debt of the Company or the Guarantor, as the case may be, to
participate in any payment or distribution pursuant to this Article, the Trustee
may request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Debt of the Company or the Guarantor, as
the case may be, held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
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Section 13.11 Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company or the Guarantor
referred to in this Article, the Trustee, subject to the provisions of Section
6.1, and the Holders of the Securities shall be entitled to rely upon any order
or decree entered by any court of competent jurisdiction in which such
Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders of Securities, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior Debt
and other indebtedness of the Company or the Guarantor, as the case may be, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article.
Section 13.12 Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt of the Company or
the Guarantor, as the case may be, and shall not be liable to any such holders
if it shall in good faith mistakenly pay over or distribute to Holders of
Securities or to the Company, the Guarantor or to any other Person cash,
property or securities to which any holders of Senior Debt of the Company or the
Guarantor, as the case may be, shall be entitled by virtue of this Article or
otherwise.
Section 13.13 Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Debt of the Company or the
Guarantor, as the case may be, which may at any time be held by it, to the same
extent as any other holder of such Senior Debt, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder. Nothing in this
Article shall be construed to apply to claims of the Trustee or any predecessor
Trustee under Section 5.6 or 6.7.
Section 13.14 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee.
Section 13.15 Certain Conversions or Exchanges Deemed Payment.
For the purposes of this Article only, (a) the issuance and delivery of
junior securities upon conversion or exchange of Debt Securities shall not be
deemed to constitute a payment or distribution on account of the principal of
(or premium, if any) or interest (including any Additional Interest) on Debt
Securities or on account of the purchase or other acquisition of Debt
Securities, and (b) the payment, issuance or delivery of cash, property or
securities (other than junior securities) upon conversion or exchange of a Debt
Security shall be deemed to constitute payment on account
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of the principal of such security. For the purposes of this Section, the term
"junior securities" means (i) shares of any stock of any class of the Company or
the Guarantor and (ii) securities of the Company or the Guarantor which are
subordinated in right of payment to all Senior Debt thereof which may be
outstanding at the time of issuance or delivery of such securities to
substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article.
ARTICLE XIV
GUARANTEE
Section 14.1 Guarantee.
The Guarantor hereby irrevocably and unconditionally guarantees to each
Holder of a Debt Security of each series the due and punctual payment of the
principal of and any premium and interest (including Additional Interest) on
such Debt Security when and as the same shall become due and payable, whether at
the Stated Maturity, by declaration of acceleration, call for redemption or
otherwise, in accordance with the terms of such Debt Security and this
Indenture, regardless of any defense, right of set-off or counterclaim that the
Guarantor may have or assert, except the defense of payment. The Guarantor's
obligation to make a payment under this Article XIV may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Company to pay such amounts to the Holders.
The Guarantee set forth in this Section 14.1 shall not be valid or become
obligatory for any purpose with respect to a Debt Security until the certificate
of authentication on such Debt Security shall have been authenticated by or on
behalf of the Trustee by manual signature.
Section 14.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the Guarantee and of
any liability to which it applies or may apply, presentment, demand for payment,
any right to require a proceeding first against the Company or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and demands.
Section 14.3 Guarantor Obligations Not Affected.
The obligations of the Guarantor under this Article XIV shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Company of any express or implied
agreement, covenant, term or condition relating to the Debt Securities to
be performed or observed by the Company;
(b) the extension of time for the payment by the Company of all or any
portion of the interest on the Debt Securities, the Redemption Price or any
other sums payable under the terms of the Debt Securities or the extension
of time for the performance of any other
74
<PAGE>
obligation under, arising out of, or in connection with, the Debt
Securities (other than an extension of time for payment of interest or any
other sums payable that results from the extension of any interest payment
period on the Debt Securities of any series permitted by this Indenture).
(c) any failure, omission, delay or lack of diligence on the part of
the Trustee or the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Trustee or the Holders pursuant
to the terms of the Indenture or the Debt Securities, or any action on the
part of the Company or the Trustee granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Company or any of the assets of the Company;
(e) any invalidity of, or defect or deficiency in, the Debt
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor (other than
payment of the underlying obligation), it being the intent of this Article
XIV that the obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Trustee or the Holders to give notice
to, or obtain the consent of, the Guarantor with respect to the happening of any
of the foregoing.
Section 14.4 Form of Guarantee.
A notation of the Guarantee shall be set forth on each Debt Security in
substantially the following form:
FOR VALUE RECEIVED, FLORIDA PROGRESS CORPORATION, a corporation duly
organized and existing under the laws of the State of Florida (the "Guarantor",
which term includes any successor Person under the Indenture referred to herein)
hereby irrevocably and unconditionally guarantees to the Holder of this Security
issued by Florida Progress Funding Corporation (the "Company"), pursuant to the
terms of the Guarantee contained in Article XIV of the Indenture, the due and
punctual payment of the principal of, sinking fund payment, if any, premium, if
any, and interest (including Additional Interest) on this Junior Subordinated
Note, when and as the same shall become due and payable, whether at the Stated
Maturity, by declaration of acceleration, call for redemption or otherwise, in
accordance with the terms of this Security and the Indenture.
The obligations of the Guarantor to the Holders of the Securities and to
the Trustee pursuant to the Guarantee and the Indenture are expressly set forth
in Article XIV of the Indenture and reference is hereby made to such Article and
Indenture for the precise terms of the Guarantee.
75
<PAGE>
Notwithstanding anything to the contrary in this Guarantee, all payments in
respect of the Guarantee are subordinate and subject in right of payment to the
prior payment in full of all Senior Debt (as defined in the Indenture) of the
Guarantor.
THIS NOTES GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS
THEREOF.
The Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Security upon which this notation of the
Guarantee is endorsed shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
(SEAL) FLORIDA PROGRESS CORPORATION
Attest:
By:____________________________________
Name:__________________________________
Title:_________________________________
Section 14.5 Execution of Guarantee.
To evidence the Guarantee to the Holders specified in Section 14.1, the
Guarantor hereby agrees to execute the notation of the Guarantee, in
substantially the form set forth in Section 14.4, to be endorsed on each
Security authenticated and delivered by the Trustee. The Guarantor hereby agrees
that the Guarantee set forth in Section 14.1 shall remain in full force and
effect notwithstanding any failure to endorse on each Security a notation of the
Guarantee. Each such notation of the Guarantee shall be signed on behalf of the
Guarantor, by a director or officer, prior to the authentication of the Security
on which it is endorsed, and the delivery of such Security by the Trustee, after
the due authentication thereof by the Trustee hereunder, shall constitute due
delivery of the Guarantee on behalf of the Guarantor. Such signature upon the
notation of the Guarantee may be a manual or facsimile signature of any such
director or officer and may be imprinted or otherwise reproduced below the
notation of the Guarantee, and in case any such director or officer who shall
have signed the notation of the Guarantee shall cease to be such director or
officer before the Security on which such notation is endorsed shall have been
authenticated and delivered by the Trustee or disposed of by the Company, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed the notation of the Guarantee had not ceased to be
such director or officer of the Guarantor.
76
<PAGE>
Section 14.6 Subrogation.
The Guarantor shall be subrogated to all rights (if any) of the Holders
against the Company in respect of any amounts paid to the Holders by the
Guarantor under this Article XIV with respect to any series of Securities;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
which it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Article XIV with
respect to a series of Securities if, at the time of any such payment, any
amounts are due and unpaid under such series of Securities. If any amount shall
be paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
Section 14.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Company with respect to the Securities and that the
Guarantor shall be liable as principal and as debtor hereunder to make payments
pursuant to the terms of the Guarantee notwithstanding the occurrence of any
event referred to in subsections (a) through (g), inclusive, of Section 14.3
hereof.
Section 14.8 Subordination.
The Guarantor covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the same extent and
in the same manner set forth in Article XIII with respect to subordination and
relative rights of the Securities, all payments in respect of the Guarantee are
hereby expressly made subordinate and subject in right of payment to the prior
payment in full in cash of all Senior Debt of the Guarantor.
Section 14.9 Assumption by Guarantor.
(a) The Guarantor may, without the consent of the Holders of the Security
of any series, assume all of the rights and obligations of the Company hereunder
with respect to a series of Securities and under the Securities of such series
if, after giving effect to such assumption, no Event of Default shall have
occurred and be continuing. Upon such an assumption, the Guarantor shall execute
a supplemental indenture evidencing its assumption of all such rights and
obligations of the Company and the Company shall be released from its
liabilities hereunder and under such Securities as obligor on the Securities of
such series.
(b) The Guarantor shall assume all of the rights and obligations of the
Company hereunder with respect to a series of Securities and under the
Securities of such series if, upon a default by the Company in the due and
punctual payment of the principal, sinking fund payment, if any, premium, if
any, or interest on such Securities, the Guarantor is prevented by any court
order or judicial proceeding from fulfilling its obligations under the Guarantee
with respect to such series of Securities. Such assumption shall result in the
Securities of such series becoming the direct obligations of the Guarantor and
shall be effected without the consent of the holders of the Securities
77
<PAGE>
of any series. Upon such an assumption, the Guarantor shall execute a
supplemental indenture evidencing its assumption of all such rights and
obligations of the Company, and the Company shall be released from its
liabilities hereunder and under such Securities as obligor on the Securities of
such.
* * * *
78
<PAGE>
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
FLORIDA PROGRESS FUNDING CORPORATION
By:_________________________________
Attest:
____________________________________
FLORIDA PROGRESS CORPORATION
as Guarantor
By:_________________________________
Attest:
____________________________________
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:_________________________________
Attest:
____________________________________
79
<PAGE>
EXHIBIT 4.2
- --------------------------------------------------------------------------------
FLORIDA PROGRESS FUNDING CORPORATION,
FLORIDA PROGRESS CORPORATION, AS GUARANTOR
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
SUPPLEMENTAL INDENTURE NO. 1
Dated as of 1, 1999
$
% Junior Subordinated Deferrable Interest Notes,
Series A
- -------------------------------------------------------------------------------
<PAGE>
FLORIDA PROGRESS FUNDING CORPORATION
$
% Junior Subordinated Deferrable Interest Notes,
Series A
SUPPLEMENTAL INDENTURE NO. 1
SUPPLEMENTAL INDENTURE No. 1, dated as of 1, 1999 among
Florida Progress Funding Corporation, a Delaware corporation (the "Company"),
Florida Progress Corporation, a Florida Corporation, as Guarantor (the
"Guarantor") and The First National Bank of Chicago, a national banking
association duly organized and existing under the laws of the United States, as
Trustee (the "Trustee").
RECITALS
--------
The Company, the Guarantor and the Trustee have heretofore executed a
Junior Subordinated Indenture, dated as of 1, 1999 (the
"Indenture"), providing for the issuance from time to time of series of the
Company's Debt Securities and the Guarantor's Guarantees.
Section 3.1 of the Indenture provides for various matters with respect to
any series of Securities issued under the Indenture to be established in an
indenture supplemental to the Indenture.
Section 9.1(3) of the Indenture provides for the Company, the Guarantor and
the Trustee to enter into an indenture supplemental to the Indenture to
establish the form or terms of Securities of any series as provided by Sections
2.1 or 3.1 of the Indenture.
For and in consideration of the premises and the issuance of the series of
Securities provided for herein, it is mutually covenanted and agreed, for the
equal and proportionate benefit of the Holders of the Securities of such series,
as follows:
ARTICLE 1
RELATION TO INDENTURE; DEFINITIONS
Section 1.1. This Supplemental Indenture No. 1 constitutes an integral
part of the Indenture.
Section 1.2. For all purposes of this Supplemental Indenture No. 1:
(1) Capitalized terms used herein without definition shall have the
meanings specified in the Indenture or in the Amended and Restated Trust
Agreement, dated as of 1, 1999, among the Company, as
Depositor, The First National Bank of Chicago, as Property Trustee, First
Chicago Delaware Inc., as Delaware Trustee, and the Administrative Trustee named
therein, as the case may be;
1
<PAGE>
(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this Supplemental
Indenture No. 1; and
(3) The terms "herein", "hereof', "hereunder" and other words of similar
import refer to this Supplemental Indenture No. 1.
ARTICLE 2
THE SERIES OF SECURITIES
Section 2.1. Title of the Debt Securities. There shall be a series of
----------------------------
Debt Securities designated the " % Junior Subordinated Deferrable Interest
Notes, Series A" (the "Debt Securities").
Section 2.2. Limitation on Aggregate Principal Amount; Date of Debt
------------------------------------------------------
Securities. The aggregate principal amount of the Debt Securities shall be
- ----------
limited to $ . Each Debt Security shall be dated the date of
its authentication.
Section 2.3. Principal Payment Date. The principal amount of the Debt
----------------------
Securities Outstanding (together with any accrued and unpaid interest (including
any Additional Interest) thereon) shall be payable in a single installment on
, 2039.
Section 2.4. Interest and Interest Rates. The rate of interest on each
---------------------------
Debt Security shall be % per annum, accruing from , 1999
and, subject to Section 2.5, interest shall be payable, quarterly in arrears, on
March 31, June 30, September 30 and December 31 of each year (each such date, an
"Interest Payment Date"), commencing June 30, 1999. The rate of any Additional
Interest that shall accrue on each Debt Security shall be at the same rate per
annum. The amount of interest payable for any period shall be computed on the
basis of a 360-day year of twelve 30-day months. For any period of less than a
full month, interest payable shall reflect interest on the Debt Securities
computed on the basis of the actual number of elapsed days based on a month of
30 days in a 360-day year. In the event that any date on which interest is
payable on a Debt Security is not a Business Day, then a payment of the interest
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on the date such payment was
originally payable. The interest installment so payable, and punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name such Debt Security (or one or more Predecessor Securities) is
registered in the Securities Register at the close of business on the Regular
Record Date for such interest installment, which, if such Security is a Global
Security issued to the Depositary, shall be the close of business on the
Business Day next preceding such Interest Payment Date. The interest so payable
on any Debt Security which is not punctually paid or duly provided for on any
Interest Payment Date shall forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name such Debt
Security (or one or more Predecessor Securities) is registered in the Securities
Register at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Debt
2
<PAGE>
Securities not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in the
Indenture.
Section 2.5. Extension of Interest Payment Period. (a) So long as no
------------------------------------
Event of Default shall have occurred and be continuing, the Company shall have
the right, at any time during the term of the Securities, from time to time, to
defer the payment of interest on the Debt Securities for up to 20 consecutive
quarters with respect to each deferred period (each, an "Extension Period"),
during which Extension Periods the Company shall have the right to make partial
payments of interest on any Interest Payment Date. No Extension Period shall
end on a date other than an Interest Payment Date. At the end of any such
Extension Period the Company shall pay all interest then accrued and unpaid on
the Debt Securities (together with Additional Interest thereon, if any, at the
annual rate of %, compounded quarterly, to the extent permitted by
applicable law), provided, that no Extension Period shall extend beyond the
Stated Maturity of the principal of the Debt Securities; provided, further, that
during any such Extension Period, neither the Company nor the Guarantor shall
(i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital stock
or (ii) make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem, any debt security issued by it that ranks pari
passu with or junior in interest to the Securities or make any guarantee
payments with respect to any guaranty by the Company or the Guarantor of the
debt securities of any Subsidiary of the Company or the Guarantor that by their
terms rank pari passu with or junior in interest to the Securities (other than
(a) dividends or distributions in Common Stock, (b) any declaration of a
dividend in connection with the implementation of a Rights Plan, the issuance of
any Common Stock or any class or series of preferred stock of the Company or the
Guarantor under any Rights Plan or the repurchase of any rights distributed
pursuant to a Rights Plan, (c) purchases of Common Stock related to the issuance
of Common Stock under any of the Company's or the Guarantor's benefit plans for
their respective directors, officers or employees). Prior to the termination of
any such Extension Period, the Company may further extend the interest payment
period. Notwithstanding any provision of this Supplemental Indenture No. 1 or
the Indenture to the contrary, no Extension Period shall exceed 20 consecutive
quarters or extend beyond the Maturity Date of the Securities. Upon termination
of any such Extension Period and upon the payment of all accrued and unpaid
interest and any Additional Interest then due, the Company may elect to begin a
new Extension Period, subject to the requirements hereof. No interest shall be
due and payable during an Extension Period, except at the end thereof. The
Company shall give the Holders of the Securities and the Property Trustee, the
Administrative Trustee and the Trustee notice of its election to begin any such
Extension Period at least one Business Day prior to the earlier of (i) the next
succeeding date on which Distributions on the Preferred Securities would have
been payable except for the election to begin such Extension Period or (ii) the
date the Administrative Trustee is required to give notice to any securities
exchange or other applicable self-regulatory organization or to holders of such
Preferred Securities of the record date or the date such Distributions are
payable, but in any event not less than one Business Day prior to such record
date. The Trustee shall promptly give notice of the Company's election to begin
any such Extension Period to the holders of the outstanding Securities, and
pursuant to Section 8.2 of the Trust Agreement, within five Business Days
following receipt of notice of the Company's election to defer the payment of
interest on the Securities, the Administrative Trustee shall notify the holders
of the Preferred Securities and the Property Trustee of such election.
3
<PAGE>
Section 2.6. Place of Payment. The Place of Payment where the Securities
----------------
may be presented or surrendered for payment, where the Securities may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and the Indenture
may be served shall be the Corporate Trust Office of the Trustee.
Section 2.7. Redemption. At any time on or after ,
----------
2004, the Company may, at its option, subject to the terms and conditions of
Article Eleven of the Indenture, redeem the Debt Securities in whole at any time
or in part from time to time, without premium or penalty, at a redemption price
equal to 100% of the principal amount thereof plus the accrued and unpaid
interest, including Additional Interest, if any, to the date fixed for
redemption.
If a Special Event in respect of FPC Capital I shall occur and be
continuing, the Company may, at its option, redeem the Debt Securities within 90
days of the occurrence of such Special Event, in whole but not in part, subject
to the provisions of Article Eleven of the Indenture. The redemption price for
any Debt Security so redeemed shall be equal to 100% of the principal amount
thereof plus accrued and unpaid interest, including Additional Interest, if any,
to the date fixed for redemption.
Section 2.8. Exchange. At any time, the Company may terminate FPC
--------
Capital I and cause the Debt Securities to be distributed to Holders of the
Trust Securities in liquidation of FPC Capital I.
Section 2.9. Denomination. The Debt Securities shall be in registered
------------
form without coupons and shall be issuable in denominations of $25 and integral
multiples thereof.
Section 2.10. Currency. Principal and interest and other amounts payable
--------
on the Securities shall be payable in Dollars.
Section 2.11. Form of Securities. The Securities shall be substantially
------------------
in the form attached as Exhibit A hereto.
---------
Section 2.12. Securities Registrar and Paying Agent. The Trustee shall
-------------------------------------
initially serve as Securities Registrar and Paying Agent.
Section 2.13. Sinking Fund Obligations. The Company has no obligation to
------------------------
redeem or purchase any Securities pursuant to any sinking fund or analogous
requirement or upon the happening of a specified event or at the option of a
Holder thereof.
Section 2.14. Guarantee. A notation of the Guarantee shall be set forth
---------
on each Security in substantially the form set forth in the Indenture.
ARTICLE 3
MISCELLANEOUS PROVISIONS
Section 3.1. The Indenture, as supplemented and amended by this
Supplemental Indenture No. 1, is in all respects hereby adopted, ratified and
confirmed.
4
<PAGE>
Section 3.2. This Supplemental Indenture No. 1 may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
Section 3.3. THIS SUPPLEMENTAL INDENTURE NO. 1 AND EACH SECURITY SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 1 to be duly executed, as of the day and year first written above.
FLORIDA PROGRESS FUNDING CORPORATION
By:___________________
Its:
Attest:____________________
Secretary
FLORIDA PROGRESS CORPORATION, as Guarantor
By:____________________
Its:
Attest:____________________
Secretary
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
By:_____________________
Name:
Title:
5
<PAGE>
EXHIBIT A
[FORM OF FACE OF SECURITY]
[IF THE SECURITY IS TO BE A GLOBAL SECURITY - This Security is a Global
Security within the meaning of the Indenture hereinafter referred to and is
registered in the name of The Depository Trust Company (the "Depository") or a
nominee of the Depository. This Security is exchangeable for Securities
registered in the name of a person other than the Depository or its nominee only
in the limited circumstances described in the Indenture and may not be
transferred except as a whole by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository.]
FLORIDA PROGRESS FUNDING CORPORATION
% Junior Subordinated Deferrable Interest Notes,
Series A
No. ___________ $ CUSIP
FLORIDA PROGRESS FUNDING CORPORATION, a corporation organized and existing
under the laws of Delaware (hereinafter called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to _______________, or registered
assigns, the principal sum of ___________ Dollars on ,
2039. The Company further promises to pay interest on said principal sum from
June 30, 1999 or from the most recent interest payment date (each such date, an
"Interest Payment Date") on which interest has been paid or duly provided for,
quarterly (subject to deferral as set forth herein) in arrears on March 31, June
30, September 30 and December 31 of each year, commencing ,
1999, at the rate of % per annum, until the principal hereof shall have
become due and payable, plus Additional Interest, if any, until the principal
hereof is paid or duly provided for or made available for payment and on any
overdue principal and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the rate of % per annum, compounded quarterly. The amount of
interest payable for any period will be computed on the basis of twelve 30-day
months and a 360-day year. The amount of interest payable for any partial
period shall be computed on the basis of the actual number of elapsed days based
on a 360-day year of twelve 30-day months. In the event that any date on which
interest is payable on this Security is not a Business Day, then a payment of
the interest payable on such date will be made on the next succeeding day which
is a Business Day (and without any interest or other payment in respect of any
such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on the date the
payment was originally payable. A "Business Day" shall mean any day other than
(i) a Saturday or Sunday, (ii) a day on which banking institutions in the City
of New York are authorized or required by law or executive order to remain
closed or (iii) a day on which the Corporate Trust Office of the Trustee or the
principal office of the Property Trustee under the Trust Agreement hereinafter
referred to for FPC Capital I, is closed for business. The interest installment
so payable, and punctually paid or duly provided for, on any
A-1
<PAGE>
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities, as defined
in the Indenture) is registered at the close of business on the Regular Record
Date for such interest installment, which shall be (i) in the case of Securities
represented by one or more Global Securities, the Business Day next preceding
such Interest Payment Date and (ii) in the case of Securities not represented by
one or more Global Securities, the date which is fifteen days next preceding
such Interest Payment Date (whether or not a Business Day). Any such interest
installment not so punctually paid or duly provided for shall forthwith cease to
be payable to the Holder on such Regular Record Date and may either be paid to
the Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed or traded, and upon such notice as may
be required by such exchange, all as more fully provided in said Indenture.
So long as no Event of Default under the Indenture shall have occurred and
be continuing, the Company shall have the right at any time during the term of
this Security to defer the payment of interest on such Security, at any time or
from time to time for up to 20 consecutive quarterly interest payment periods
with respect to each deferral period (each an "Extension Period"), during which
Extension Periods the Company shall have the right to make payments of interest
on any Interest Payment Date, and at the end of which the Company shall pay all
interest then accrued and unpaid (together with Additional Interest thereon to
the extent permitted by applicable law); provided, however, that no Extension
Period shall extend beyond the Stated Maturity of the principal of this
Security; provided further, that during any Extension Period, the Company shall
not nor shall the Guarantor referred to herein (i) declare or pay any dividends
or distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of its capital stock or (ii) make any payment of principal
of, or interest or premium, if any, on, or repay, repurchase or redeem any debt
security issued by it that ranks pari passu with or junior in interest to this
Security or the Guarantee referred to herein or make any guarantee payments with
respect to any guarantee by the Company or the Guarantor of the debt securities
of any of their respective Subsidiaries if such guarantee ranks pari passu with
or junior in interest to this Security (other than (a) dividends or
distributions in Common Stock, (b) any declaration of a dividend in connection
with the implementation of a Rights Plan, the issuance of any Common Stock or
any class or series of preferred stock of the Company or the Guarantor under any
Rights Plan or the repurchase of any rights distributed pursuant to a Rights
Plan, and (c) purchases of Common Stock related to the issuance of Common Stock
under any of the Company's or the Guarantor's benefit plans for their respective
directors, officers or employees). Prior to the termination of any such
Extension Period, the Company may further extend the interest payment period;
provided that no Extension Period shall exceed 20 consecutive quarters or extend
beyond the Maturity Date of this Security. Upon the termination of any such
Extension Period and upon the payment of all accrued and unpaid interest and any
Additional Interest then due, the Company may elect to begin a new Extension
Period, subject to the requirements hereof. No interest shall be due and
payable during an Extension Period except at the end thereof. The Company shall
give the Holder of this Security and the Trustee written notice of its election
to begin any Extension Period at least one Business Day prior to the earlier of
(i) the next succeeding date on which Distributions on the Preferred Securities
would be payable but
A-2
<PAGE>
for such deferral or (ii) the date the Administrative Trustee is required to
give notice to any securities exchange or other applicable self-regulatory
organization or to holders of such Preferred Securities of the record date or
the date such Distributions are payable, but in any event not less than one
Business Day prior to such record date.
Payment of the principal of and interest on this Security will be made at
the office or agency of the Company maintained for that purpose in the United
States, 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 (i)
by check mailed to the address of the Person entitled thereto as such address
shall appear in the Securities Register or (ii) by wire transfer in immediately
available funds at such place and to such account as may be designated by the
Person entitled thereto as specified in the Securities Register.
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and subject in right of payments to the prior payment
in full of all Senior Debt of the Company, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
actions as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes. Each Holder hereof, by his acceptance hereof, waives all notice of
the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Debt of the Company, whether now outstanding
or hereafter incurred, and waives reliance by each such holder upon said
provisions.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
The Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on this Security upon which this notation of the
Guarantee is endorsed shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
(SEAL) FLORIDA PROGRESS CORPORATION
Attest:
By:_______________________
Name:___________________
Title___________________
A-3
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
FLORIDA PROGRESS FUNDING CORPORATION
By:____________________________
[President or Vice President]
Attest:
______________________________________
[Secretary or Assistant Secretary]
SWORN TO ME and subscribed in my presence this day of , 1999.
_______________________________
Notary Public
Commission Expires:____________
[NOTARIAL SEAL]
This is one of the Securities referred to in the within mentioned
Indenture.
Dated:
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:____________________________
Authorized Officer
A-4
<PAGE>
NOTES GUARANTEE
FOR THE VALUE RECEIVED, FLORIDA PROGRESS CORPORATION, a corporation duly
organized and existing under the laws of the State of Florida (the "Guarantor",
which term includes any successor Person under the Indenture referred to herein)
hereby irrevocably and unconditionally guarantees to the Holder of this Security
issued by Florida Progress Funding Corporation (the "Company"), pursuant to the
terms of the Guarantee contained in Article XIV of the Indenture, the due and
punctual payment of the principal of and interest (including Additional
Interest) on this Security, when and as the same shall become due and payable,
whether at the Stated Maturity, by declaration of acceleration, call for
redemption or otherwise, in accordance with the terms of this Security and the
Indenture.
The obligations of the Guarantor to the Holders of this Security and the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article XIV of the Indenture, and reference is hereby made to such Article and
Indenture for the precise terms of the Guarantee.
Notwithstanding anything to the contrary in this Guarantee, all payments in
respect of the Guarantee are subordinate and subject in right of payment to the
prior payment in full of all Senior Debt (as defined in the Indenture) of the
Guarantor.
The Guarantee shall be governed by and construed in accordance with the
laws of the State of New York without regard to the principles of conflicts
thereof.
Dated:
FLORIDA PROGRESS CORPORATION, as Guarantor
By:__________________________
Its:
SWORN TO ME and subscribed in my presence this day of , 1999.
______________________________
Notary Public
Commission Expires:___________
[NOTARIAL SEAL]
A-5
<PAGE>
[FORM OF REVERSE OF SECURITY]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under the Junior Subordinated Indenture, dated as of
1, 1999, as amended (herein called the "Indenture"), among the Company, the
Guarantor and The First National Bank of Chicago, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Trustee, the Company, the Guarantor and the Holders
of the Securities, and of the terms upon which the Securities are, and are to
be, authenticated and delivered. This Security is one of the series designated
on the face hereof, limited in aggregate principal amount to $ .
All terms used in this Security that are defined in the Indenture or in the
Amended and Restated Trust Agreement, dated as of 1, 1999 (the "Trust
Agreement"), for FPC Capital I among the Company, as Depositor,
and the Trustee and the other trustees named therein, shall have the meanings
assigned to them in the Indenture or the Trust Agreement, as the case may be.
The Company may at any time, at its option, on or after ,
2004, and subject to the terms and conditions of Article XI of the Indenture,
redeem this Security in whole at any time or in part from time to time, without
premium or penalty, at a redemption price equal to 100% of the principal amount
thereof plus the accrued and unpaid interest, including Additional Interest, if
any, to the Redemption Date.
Upon the occurrence and continuance of a Special Event in respect of FPC
Capital I, the Company may, at its option, at any time within 90 days of the
occurrence of such Special Event, redeem this Security, in whole but not in
part, subject to the provisions of Section 11.7 and the other provisions of
Article XI of the Indenture, at a redemption price equal to 100% of the
principal amount thereof plus accrued and unpaid interest, including Additional
Interest, if any, to the Redemption Date.
In the event of redemption of this Security in part only, a new Security or
Securities of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for satisfaction, discharge and
defeasance at any time of the entire indebtedness of this Security upon
compliance by the Company with certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Company, the Guarantor and the Trustee at any time to enter into a supplemental
indenture or indentures for the purpose of modifying in any manner the rights
and obligations of the Company, the Guarantor and of the Holders of the
Securities, with the consent of the Holders of a majority in principal amount of
the Outstanding Securities of each series to be affected by such supplemental
indenture. The Indenture also contains provisions permitting Holders of
specified percentages in principal amount
A-6
<PAGE>
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, if an Event
of Default with respect to Securities of this series at the time Outstanding
occurs and is continuing, then and in every such case the Trustee or the Holders
of not less than 25% in principal amount of the Outstanding Securities of this
series may declare the principal amount of all the Securities of this series to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), provided that, in the case of the Securities
of a series issued to an FPC Capital Trust, if upon an Event of Default, the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of this series fail to declare the principal of all the
Securities of this series to be immediately due and payable, the holders of at
least 25% in aggregate Liquidation Amount of the Preferred Securities then
outstanding shall have such right by a notice in writing to the Company, the
Guarantor and the Trustee; and upon any such declaration the principal amount of
and the accrued interest (including any Additional Interest) on all the
Securities of this series shall become immediately due and payable, provided
that the payment of principal and interest (including any Additional Interest)
on such Securities shall remain subordinated to the extent provided in Article
XIII of the Indenture.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal and interest on this Security
at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Securities Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company maintained under Section 10.2 of the Indenture duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will 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 Security for registration of transfer, the
Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Guarantor, the Trustee nor any such agent shall be
affected by notice to the contrary.
A-7
<PAGE>
The Securities of this series are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of such series of a different authorized denomination, as
requested by the Holder surrendering the same.
The Company and the Guarantor and, by its acceptance of this Security or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, this Security agree that for United States federal,
state and local tax purposes it is intended that this Security constitute
indebtedness.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES THEREOF.
A-8
<PAGE>
Exhibit 4.3(a)
CERTIFICATE OF TRUST
OF
FPC CAPITAL I
THIS Certificate of Trust of FPC CAPITAL I (the "Trust") is being duly
executed and filed on behalf of the Trust by the undersigned, as trustees, to
form a business trust under the Delaware Business Trust Act (12 Del. C. (S) 3801
et seq.) (the "Act").
1. Name. The name of the business trust formed hereby is FPC CAPITAL I.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware is First Chicago Delaware Inc. 300 King Street,
Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective upon filing
with the Secretary of State.
IN WITNESS WHEREOF, the undersigned have duly executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
FIRST CHICAGO DELAWARE INC.,
as trustee
By: /s/ Steven M. Wagner
_________________________________
Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as trustee
By: /s/ Steven M. Wagner
_________________________________
First Vice President
<PAGE>
Exhibit 4.3(b)
CERTIFICATE OF TRUST
OF
FPC CAPITAL II
THIS Certificate of Trust of FPC CAPITAL II (the "Trust") is being duly
executed and filed on behalf of the Trust by the undersigned, as trustees, to
form a business trust under the Delaware Business Trust Act (12 Del. C. (S)
3801 et seq.) (the "Act").
1. Name. The name of the business trust formed hereby is FPC CAPITAL
II.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware is First Chicago Delaware Inc. 300 King Street,
Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective upon filing
with the Secretary of State.
IN WITNESS WHEREOF, the undersigned have duly executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
FIRST CHICAGO DELAWARE INC.,
as trustee
By: /s/ Steven M. Wagner
_________________________________
Steven M Wagner
Name: ___________________________
Vice President
Title: __________________________
THE FIRST NATIONAL BANK OF CHICAGO,
as trustee
By: /s/ Steven M. Wagner
_________________________________
Steven M. Wagner
Name: ___________________________
Vice President
Title: __________________________
<PAGE>
Exhibit 4.4(a)
TRUST AGREEMENT
---------------
This TRUST AGREEMENT, dated as of March 22, 1999 (this "Trust Agreement"),
among (i) FLORIDA PROGRESS FUNDING CORPORATION, a Delaware corporation (the
"Depositor"), (ii) FIRST CHICAGO DELAWARE INC., a Delaware corporation (the
"Delaware Trustee"), and (iii) THE FIRST NATIONAL BANK OF CHICAGO, a national
banking association (the "Property Trustee") (collectively with the Delaware
Trustee, the "Trustees"). The Depositor and the Trustees hereby agree as
follows:
1. The trust created hereby (the "Trust") shall be known as "FPC
CAPITAL I" in which name the Trustees, or the Depositor to the extent provided
herein, may engage in the transactions contemplated hereby, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers conveys and sets over to
the Trust the sum of $10. The Trustees hereby acknowledge receipt of such
amount from the Depositor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they will hold the trust estate for
the Depositor. It is the intention of the parties hereto that the Trust created
hereby constitutes a business trust under Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. (S) 3801, et seq. (the "Business Trust Act"), and that this
document constitutes the governing instrument of the Trust. The Trustees are
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in accordance with the provisions of the
Business Trust Act.
3. The Depositor, the Trustees and certain other trustees to be
hereafter appointed will enter into an amended and restated Trust Agreement,
satisfactory to each such party and substantially in the form included as an
exhibit to the 1933 Act Registration Statement (as defined below), to provide
for the contemplated operation of the Trust created hereby and the issuance of
the Preferred Securities, or QUIPS, and Common Securities referred to therein.
Prior to the execution and delivery of such amended and restated Trust
Agreement, the Trustees shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery of any
licenses, consents or approvals required by applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the Depositor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended (the "1933 Act"), of the Preferred
Securities of the Trust and certain other securities, (b) any Prospectus or
Preliminary Prospectus relating to the Preferred Securities required to be filed
under the 1933 Act, and (c) a Registration Statement on Form 8-A (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under the Securities Exchange Act of 1934, as amended; (ii) to file
with the New York Stock Exchange or any other national stock exchange or The
Nasdaq National Market (each, an "Exchange") and execute on behalf of the Trust
one or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to file and execute on behalf of the Trust such applications,
reports, surety
<PAGE>
bonds, irrevocable consents, appointments of attorney for service of process and
other papers and documents as shall be necessary or desirable to register the
Preferred Securities under the securities or blue sky laws of such jurisdictions
as the Depositor, on behalf of the Trust, may deem necessary or desirable and
(iv) to execute on behalf of the Trust that certain Underwriting Agreement
relating to the Preferred Securities, among the Trust, the Depositor, Florida
Progress Corporation, a Florida corporation, and the several Underwriters named
therein, substantially in the form included as an exhibit to the 1933 Act
Registration Statement. In connection with the filings referred to above, the
Depositor hereby constitutes and appoints Kenneth E. Armstrong, Pamela A. Saari,
Richard Korpan, Edward W. Moneypenny, Kathleen M. Haley, John Scardino, Jr. and
Douglas E. Wentz, as its true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for the Depositor or in the
Depositor's name, place and stead, in its capacity as Depositor of the Trust, to
sign any and all amendments (including post-effective amendments) to the 1933
Act Registration Statement and the 1934 Act Registration Statement and to file
the same, with all exhibits thereto, and any other documents in connection
therewith, with the Commission, the Exchange and administrators of state
securities or blue sky laws, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as the Depositor might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be two (2) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Depositor which may increase or decrease
the number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any Trustee at any
time. The Trustees may resign upon thirty (30) days' prior notice to the
Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
8. The Delaware Trustee shall not have any of the powers or duties
of the Trustees set forth herein, except as required under the Business Trust
Act. The Delaware Trustee shall be a Trustee hereunder for the sole and limited
purpose of fulfilling the requirements of (S) 3807(a) of the Business Trust Act.
[SIGNATURE PAGE FOLLOWS]
2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
FLORIDA PROGRESS FUNDING CORPORATION,
as Depositor
By: /s/ Edward W. Moneypenny
----------------------------------------
Signed
this 20th day of March, 1999, in the City of
Atlanta, the State of Georgia
FIRST CHICAGO DELAWARE INC., as Trustee
By: /s/ Steven M. Wagner
----------------------------------------
THE FIRST NATIONAL BANK OF CHICAGO, as
Trustee
By: /s/ Steven M. Wagner
----------------------------------------
3
<PAGE>
Exhibit 4.4(b)
TRUST AGREEMENT
---------------
This TRUST AGREEMENT, dated as of March 22, 1999 (this "Trust Agreement"),
among (i) FLORIDA PROGRESS FUNDING CORPORATION, a Delaware corporation (the
"Depositor"), (ii) FIRST CHICAGO DELAWARE INC., a Delaware corporation (the
"Delaware Trustee"), and (iii) THE FIRST NATIONAL BANK OF CHICAGO, a national
banking association (the "Property Trustee") (collectively with the Delaware
Trustee, the "Trustees"). The Depositor and the Trustees hereby agree as
follows:
1. The trust created hereby (the "Trust") shall be known as "FPC
CAPITAL II" in which name the Trustees, or the Depositor to the extent provided
herein, may engage in the transactions contemplated hereby, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers conveys and sets over to
the Trust the sum of $10. The Trustees hereby acknowledge receipt of such
amount from the Depositor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they will hold the trust estate for
the Depositor. It is the intention of the parties hereto that the Trust created
hereby constitutes a business trust under Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. (S) 3801, et seq. (the "Business Trust Act"), and that this
document constitutes the governing instrument of the Trust. The Trustees are
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in accordance with the provisions of the
Business Trust Act.
3. The Depositor, the Trustees and certain other trustees to be
hereafter appointed will enter into an amended and restated Trust Agreement,
satisfactory to each such party and substantially in the form included as an
exhibit to the 1933 Act Registration Statement (as defined below), to provide
for the contemplated operation of the Trust created hereby and the issuance of
the Preferred Securities, or QUIPS, and Common Securities referred to therein.
Prior to the execution and delivery of such amended and restated Trust
Agreement, the Trustees shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery of any
licenses, consents or approvals required by applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the Depositor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended (the "1933 Act"), of the Preferred
Securities of the Trust and certain other securities, (b) any Prospectus or
Preliminary Prospectus relating to the Preferred Securities required to be filed
under the 1933 Act, and (c) a Registration Statement on Form 8-A (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under the Securities Exchange Act of 1934, as amended; (ii) to file
with the New York Stock Exchange or any other national stock exchange or The
Nasdaq National Market (each, an "Exchange") and execute on behalf of the Trust
one or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to file and execute on behalf of the Trust such applications,
reports, surety
<PAGE>
bonds, irrevocable consents, appointments of attorney for service of process and
other papers and documents as shall be necessary or desirable to register the
Preferred Securities under the securities or blue sky laws of such jurisdictions
as the Depositor, on behalf of the Trust, may deem necessary or desirable and
(iv) to execute on behalf of the Trust that certain Underwriting Agreement
relating to the Preferred Securities, among the Trust, the Depositor, Florida
Progress Corporation, a Florida corporation, and the several Underwriters named
therein, substantially in the form included as an exhibit to the 1933 Act
Registration Statement. In connection with the filings referred to above, the
Depositor hereby constitutes and appoints Kenneth E. Armstrong, Pamela A. Saari,
Richard Korpan, Edward W. Moneypenny, Kathleen M. Haley, John Scardino, Jr. and
Douglas E. Wentz, as its true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for the Depositor or in the
Depositor's name, place and stead, in its capacity as Depositor of the Trust, to
sign any and all amendments (including post-effective amendments) to the 1933
Act Registration Statement and the 1934 Act Registration Statement and to file
the same, with all exhibits thereto, and any other documents in connection
therewith, with the Commission, the Exchange and administrators of state
securities or blue sky laws, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as the Depositor might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be two (2) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Depositor which may increase or decrease
the number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any Trustee at any
time. The Trustees may resign upon thirty (30) days' prior notice to the
Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
8. The Delaware Trustee shall not have any of the powers or duties
of the Trustees set forth herein, except as required under the Business Trust
Act. The Delaware Trustee shall be a Trustee hereunder for the sole and limited
purpose of fulfilling the requirements of (S) 3807(a) of the Business Trust Act.
[SIGNATURE PAGE FOLLOWS]
2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
FLORIDA PROGRESS FUNDING CORPORATION,
as Depositor
/s/ Edward W. Moneypenny
By: _______________________________________
Signed
this 20th day of March, 1999, in the City of
Atlanta, the State of Georgia
FIRST CHICAGO DELAWARE INC., as Trustee
/s/ Steven M. Wagner
By: _______________________________________
THE FIRST NATIONAL BANK OF CHICAGO, as
Trustee
/s/ Steven M. Wagner
By: _______________________________________
3
<PAGE>
EXHIBIT 4.5
AMENDED AND RESTATED
TRUST AGREEMENT
among
FLORIDA PROGRESS FUNDING CORPORATION,
as Depositor,
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee,
FIRST CHICAGO DELAWARE INC.
as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEE(S) NAMED HEREIN
Dated as of ________ 1, 1999
FPC CAPITAL I
<PAGE>
FPC CAPITAL I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Trust Agreement
Act Section Section
- ----------- ---------------
<S> <C>
(S) 310 (a)(1)................................................................. 8.7
(a)(2)................................................................. 8.7
(a)(3)................................................................. 8.9
(a)(4)................................................................. 2.7(a)(ii)
(b).................................................................... 8.8
(S) 311 (a).................................................................... 8.13
(b).................................................................... 8.13
(S) 312 (a).................................................................... 5.7
(b).................................................................... 5.7
(c).................................................................... 5.7
(S) 313 (a).................................................................... 8.14(a)
(a)(4)................................................................. 8.14(b)
(b).................................................................... 8.14(b)
(c).................................................................... 10.8
(d).................................................................... 8.14(c)
(S) 314 (a).................................................................... 8.15
(b).................................................................... Not Applicable
(c)(1)................................................................. 8.16
(c)(2)................................................................. 8.16
(c)(3)................................................................. Not Applicable
(d).................................................................... Not Applicable
(e).................................................................... 1.1, 8.16
(S) 315 (a).................................................................... 8.1(a), 8.3(a)
(b).................................................................... 8.2, 10.8
(c).................................................................... 8.1(a)
(d).................................................................... 8.1, 8.3
(e).................................................................... Not Applicable
(S) 316 (a).................................................................... Not Applicable
(a)(1)(A).............................................................. Not Applicable
(a)(1)(B).............................................................. Not Applicable
(a)(2)................................................................. Not Applicable
(b).................................................................... 5.14
(c).................................................................... 6.7
(S) 317 (a)(1)................................................................. Not Applicable
(a)(2)................................................................. Not Applicable
(b).................................................................... 5.9
(S) 318 (a).................................................................... 10.10
</TABLE>
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed to
be a part of the Trust Agreement.
i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I DEFINED TERMS................................................................................ 1
Section 1.1. Definitions.................................................................................. 1
ARTICLE II. ESTABLISHMENT OF THE TRUST................................................................... 10
Section 2.1. Name......................................................................................... 10
Section 2.2. Office of the Delaware Trustee; Principal Place of Business.................................. 10
Section 2.3. Initial Contribution of Trust Property; Organizational Expenses.............................. 10
Section 2.4. Issuance of the Preferred Securities......................................................... 10
Section 2.5. Issuance of the Common Securities; Subscription and Purchase of Notes........................ 11
Section 2.6. Declaration of Trust......................................................................... 11
Section 2.7. Authorization to Enter into Certain Transactions............................................. 11
Section 2.8. Assets of Trust.............................................................................. 15
Section 2.9. Title to Trust Property...................................................................... 15
ARTICLE III. PAYMENT ACCOUNT.............................................................................. 15
Section 3.1. Payment Account.............................................................................. 15
ARTICLE IV. DISTRIBUTIONS; REDEMPTION.................................................................... 16
Section 4.1. Distributions................................................................................ 16
Section 4.2. Redemption................................................................................... 17
Section 4.3. Subordination of Common Securities........................................................... 18
Section 4.4. Payment Procedures........................................................................... 19
Section 4.5. Tax Returns and Reports...................................................................... 19
Section 4.6. Payment of Taxes, Duties, Etc. of the Trust.................................................. 20
Section 4.7. Payments under Indenture or Pursuant to Direct Actions....................................... 20
ARTICLE V. TRUST SECURITIES CERTIFICATES................................................................ 20
Section 5.1. Initial Ownership............................................................................ 20
Section 5.2. The Trust Securities Certificates............................................................ 20
Section 5.3. Execution and Delivery of Trust Securities Certificates...................................... 21
Section 5.4. Registration of Transfer and Exchange of Preferred Securities Certificates................... 21
Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates........................... 22
Section 5.6. Persons Deemed Securityholders............................................................... 22
Section 5.7. Access to List of Securityholders' Names and Addresses....................................... 23
Section 5.8. Maintenance of Office or Agency.............................................................. 23
Section 5.9. Appointment of Paying Agent.................................................................. 23
Section 5.10. Ownership of Common Securities by Depositor.................................................. 24
Section 5.11. Book-Entry Preferred Securities Certificates; Common Securities Certificate.................. 24
Section 5.12. Notices to Clearing Agency................................................................... 25
Section 5.13. Definitive Preferred Securities Certificates................................................. 25
Section 5.14. Rights of Securityholders.................................................................... 26
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ARTICLE VI. ACTS OF SECURITYHOLDERS; MEETINGS; VOTING.................................................... 28
Section 6.1. Limitations on Voting Rights................................................................. 28
Section 6.2. Notice of Meetings........................................................................... 29
Section 6.3. Meetings of Preferred Securityholders........................................................ 29
Section 6.4. Voting Rights................................................................................ 30
Section 6.5. Proxies, etc................................................................................. 30
Section 6.6. Securityholder Action by Written Consent..................................................... 30
Section 6.7. Record Date for Voting and Other Purposes.................................................... 30
Section 6.8. Acts of Securityholders...................................................................... 30
Section 6.9. Inspection of Records........................................................................ 32
ARTICLE VII. REPRESENTATIONS AND WARRANTIES............................................................... 32
Section 7.1. Representations and Warranties of the Property Trustee and the Delaware...................... 32
Section 7.2. Representations and Warranties of Depositor.................................................. 33
ARTICLE VIII. THE TRUSTEES................................................................................. 34
Section 8.1. Certain Duties and Responsibilities.......................................................... 34
Section 8.2. Certain Notices.............................................................................. 35
Section 8.3. Certain Rights of Property Trustee........................................................... 35
Section 8.4. Not Responsible for Recitals or Issuance of Securities....................................... 37
Section 8.5. May Hold Securities.......................................................................... 38
Section 8.6. Compensation; Indemnity; Fees................................................................ 38
Section 8.7. Corporate Property Trustee Required; Eligibility of Trustees................................. 39
Section 8.8. Conflicting Interests........................................................................ 39
Section 8.9. Co-Trustees and Separate Trustee............................................................. 40
Section 8.10. Resignation and Removal; Appointment of Successor........................................... 41
Section 8.11. Acceptance of Appointment by Successor...................................................... 42
Section 8.12. Merger, Conversion, Consolidation or Succession to Business................................. 43
Section 8.13. Preferential Collection of Claims Against Depositor or Trust................................ 44
Section 8.14. Reports by Property Trustee................................................................. 44
Section 8.15. Reports to the Property Trustee............................................................. 45
Section 8.16. Evidence of Compliance with Conditions Precedent............................................ 45
Section 8.17. Number of Trustees.......................................................................... 45
Section 8.18. Delegation of Power......................................................................... 46
ARTICLE IX. TERMINATION, LIQUIDATION AND MERGER......................................................... 46
Section 9.1. Termination Upon Expiration Date............................................................ 46
Section 9.2. Early Termination........................................................................... 46
Section 9.3. Termination................................................................................. 47
Section 9.4. Liquidation................................................................................. 47
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of the Trust......................... 48
ARTICLE X. MISCELLANEOUS PROVISIONS.................................................................... 50
Section 10.1. Limitation of Rights of Securityholders..................................................... 50
Section 10.2. Amendment................................................................................... 50
Section 10.3. Separability................................................................................ 51
Section 10.4. Governing Law............................................................................... 51
Section 10.5. Payments Due on Non-Business Day............................................................ 51
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Section 10.6. Successors................................................................................. 52
Section 10.7. Headings................................................................................... 52
Section 10.8. Reports, Notices and Demands............................................................... 52
Section 10.9. Agreement Not to Petition.................................................................. 53
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act..................................... 53
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee and Indenture............................ 53
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of __________ 1, 1999,
among (i) FLORIDA PROGRESS FUNDING CORPORATION, a Delaware corporation
(including any successors or assigns, the "Depositor"), (ii) THE FIRST NATIONAL
BANK OF CHICAGO, a national banking association duly organized and existing
under the laws of the United States, as property trustee, (in such capacity, the
"Property Trustee" and, in its separate corporate capacity and not in its
capacity as Property Trustee, the "Bank"), (iii) FIRST CHICAGO DELAWARE INC., a
Delaware corporation, as Delaware trustee (the "Delaware Trustee"), (iv)
PROGRESS RAIL SERVICES CORPORATION, an Alabama corporation, whose address is
1600 Progress Drive, Albertville, AL 35950 (the "Administrative Trustee(s)")
(the Property Trustee, the Delaware Trustee and the Administrative Trustee(s)
referred to collectively as the "Trustees") and (v) the several Holders, as
hereinafter defined.
WITNESSETH
WHEREAS, the Depositor, the Property Trustee and the Delaware Trustee
have heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by the entering into that certain Trust Agreement,
dated as of March 22, 1999 (the "Original Trust Agreement"), and by the
execution and filing with the Secretary of State of the State of Delaware of the
Certificate of Trust, filed on March 22, 1999, attached as Exhibit A; and
WHEREAS, the Depositor and the Trustees desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Trust to
the Depositor, (ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Underwriting Agreement, (iii) the acquisition by the Trust
from the Depositor of all of the right, title and interest in the Notes and (iv)
the appointment of the Administrative Trustee(s);
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other parties
and for the benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1. Definitions.
For all purposes of this Trust Agreement, 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;
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(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Indenture) paid by the Depositor on a Like Amount of Notes for
such period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrative Trustee(s)" means each of the Persons identified as an
"Administrative Trustee(s)" in the preamble to this Trustee Agreement solely in
such Person's capacity as Administrative Trustee(s) of the Trust formed and
continued hereunder and not in such Person's individual capacity, or such
Administrative Trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"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.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
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(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person 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 and its willingness
to be adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Depositor to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, and delivered to the Trustees.
"Book-Entry Preferred Securities Certificates" means a beneficial
interest in the Preferred Securities Certificates, ownership and transfers of
which shall be made through book entries by a Clearing Agency as described in
Section 5.11.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed, or (c) a day on which the
Property Trustee's Corporate Trust Office or the Corporate Trust Office of the
Indenture Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among the Trust,
the Depositor and The Depository Trust Company, as the initial Clearing Agency,
dated as of the Closing Date, relating to the Trust Securities Certificates,
substantially in the form attached as Exhibit B, as the same may be amended and
supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" has the meaning specified in the Underwriting Agreement,
which date is also the date of execution and delivery of this Trust Agreement.
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"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $25 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office" means (i) when used with respect to the
Property Trustee, the principal office of the Property Trustee located in
Chicago, Illinois, and (ii) when used with respect to the Indenture Trustee, the
principal office of the Indenture Trustee located in Chicago, Illinois.
"Definitive Preferred Securities Certificates" means either or both (as
the context requires) of (a) Preferred Securities Certificates issued as
Book-Entry Preferred Securities Certificate as provided in Section 5.11(a) and
(b) Preferred Securities Certificates issued in certificated, fully registered
form as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (ss.) 3801, et seq., as it may be amended from time to
time.
"Delaware Trustee" means the Person identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust formed and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
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(a) the occurrence of an Indenture Event of Default; or
(b) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of 30
days; or
(c) default by the Trust in the payment of any Redemption Price of any
Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in the performance or breach of which is dealt
with in clause (b) or (c) above) and continuation of such default or breach for
a period of 90 days after there has been given, by registered or certified mail,
to the defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate liquidation preference of the Outstanding Preferred Securities 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; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Depositor to appoint a successor Property Trustee
within 60 days thereof.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Guarantor and the Trust, substantially in the form attached as
Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Guarantor and The First National Bank of Chicago, as trustee, contemporaneously
with the execution and delivery of this Trust Agreement, for the benefit of the
holders of the Preferred Securities, as amended from time to time.
"Guarantor" means Florida Progress Corporation, a Florida corporation,
its successors and assigns.
"Indenture" means the Junior Subordinated Indenture, dated as of
_________ 1, 1999, between the Depositor, the Guarantor and the Indenture
Trustee, as trustee, as amended or supplemented from time to time.
"Indenture Event of Default" means an "Event of Default" as defined in
the Indenture.
"Indenture Redemption Date" means, with respect to any Notes to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Indenture Tax Event" means a "Tax Event" as defined in the Indenture.
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"Indenture Trustee" means The First National Bank of Chicago, a
national banking association duly organized and existing under the laws of the
United States, and any successor thereto.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Notes to be contemporaneously redeemed in accordance with the
Indenture the proceeds of which will be used to pay the Redemption Price of such
Trust Securities, and (b) with respect to a distribution of Notes to Holders of
Trust Securities in connection with a dissolution or liquidation of the Trust,
Notes having a principal amount equal to the Liquidation Amount of the Trust
Securities of the Holder to whom such Notes are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date on which Notes are to be distributed
to Holders of Trust Securities in connection with a termination and liquidation
of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Notes" means the aggregate principal amount of the Depositor's ___%
Junior Subordinated Deferrable Interest Notes, Series A, issued pursuant to the
Indenture.
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officers' Certificate" means a certificate signed by the Chairman and
Chief Executive Officer, President or a Vice President, and by the Treasurer, an
Associate Treasurer, an Assistant Treasurer, the Controller, the Secretary or an
Assistant Secretary, of the Depositor, and delivered to the appropriate Trustee.
One of the officers signing an Officers' Certificate given pursuant to Section
8.15 shall be the principal executive, financial or accounting officer of the
Depositor. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express
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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 officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, and who shall be
reasonably acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Trust Securities; provided that, if such
Trust Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange for or in lieu
of which other Preferred Securities have been executed and delivered pursuant to
Sections 5.4, 5.5, 5.11 and 5.13;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, any Trustee or any Affiliate of the
Depositor or any Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities that such Trustee knows to be so owned shall
be so disregarded and (b) the foregoing shall not apply at any time when all of
the outstanding Preferred Securities are owned by the Depositor, one or more of
the Trustees and/or any such Affiliate. Preferred Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustee(s) the pledgee's
right so to act with respect to such Preferred Securities and that the pledgee
is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a
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Person maintaining an account with such Clearing Agency (directly or indirectly,
in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Notes will be held and from which the Property Trustee, through
the Paying Agent, shall make payments to the Securityholders in accordance with
Sections 4.1 and 4.2.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as Exhibit
E.
"Property Trustee" means the Person identified as the "Property
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Property Trustee of the Trust heretofore formed and continued hereunder and not
in its individual capacity, or its successor in interest in such capacity, or
any successor property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Indenture Redemption Date and the stated maturity
of the Notes shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, allocated on a pro rata basis (based on
Liquidation Amounts) among the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Trust Securities is registered in the Securities Register; any such
Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust
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Act; provided, however, that in determining whether the Holders of the requisite
amount of Preferred Securities have voted on any matter provided for in this
Trust Agreement, then for the purpose of any such determination, so long as
Definitive Preferred Securities Certificates have not been issued, the term
Securityholders or Holders as used herein shall refer to the Owners.
"Tax Event" means the receipt by the Trust of an Opinion of Counsel
from counsel experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of issuance of
the Preferred Securities under this Trust Agreement, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days after the
date of such Opinion of Counsel, subject to United States Federal income tax
with respect to income received or accrued on the Notes, (ii) interest payable
by the Depositor on the Notes is not, or within 90 days after the date of such
Opinion of Counsel, will not be, deductible by the Depositor, in whole or in
part, for United States Federal income tax purposes or (iii) the Trust is, or
will be within 90 days after the date of such Opinion of Counsel, subject to
more than a de minimis amount of other taxes, duties, assessments or other
governmental charges.
"Trust" means the Delaware business trust created and continued hereby
and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including (i) all exhibits hereto and (ii) for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Notes, (b) the rights of the Property
Trustee under the Guarantee, (c) any cash on deposit in, or owing to, the
Payment Account and (d) all proceeds and rights in respect of the foregoing and
any other property and assets for the time being held or deemed to be held by
the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
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"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustee(s).
"Underwriting Agreement" means the Underwriting Agreement, dated
___________ __, 1999, among the Trust, the Depositor, the Guarantor and the
underwriters named therein.
ARTICLE II.
ESTABLISHMENT OF THE TRUST
SECTION 2.1. Name.
The Trust continued hereby shall be known as "FPC Capital I," as such
name may be modified from time to time by the Administrative Trustee(s)
following written notice to the Holders of Trust Securities and the other
Trustees, in which name the Trustees may conduct the business of the Trust, make
and execute contracts and other instruments on behalf of the Trust and sue and
be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business.
The address of the Delaware Trustee in the State of Delaware is First
Chicago Delaware Inc., 300 King Street, Wilmington, Delaware 19801, or such
other address in the State of Delaware as the Delaware Trustee may designate by
written notice to the Depositor. The principal executive office of the Trust is
300 Delaware Avenue, Suite 319, Wilmington, Delaware 19801.
SECTION 2.3. Initial Contribution of Trust Property; Organizational
Expenses.
The Trustees acknowledge receipt from the Depositor in connection with
the Original Trust Agreement of the sum of $10, which constituted the initial
Trust Property. The Depositor shall pay organizational expenses of the Trust as
they arise or shall, upon request of any Trustee, promptly reimburse such
Trustee for any such expenses paid by such Trustee. The Depositor shall make no
claim upon the Trust Property for the payment of such expenses.
SECTION 2.4. Issuance of the Preferred Securities.
On ________ __, 1999 the Depositor, on behalf of the Trust and pursuant
to the Original Trust Agreement, executed and delivered the Underwriting
Agreement. Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee(s), on behalf of the Trust, shall execute
in accordance with Section 5.2 and deliver to the Underwriters named in the
Underwriting Agreement Preferred Securities Certificates, registered in the name
of the nominee of the initial
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Clearing Agency, in an aggregate amount of ___________ Preferred Securities
having an aggregate Liquidation Amount of $___________, against receipt of such
aggregate purchase price of such Preferred Securities of $___________, which
amount the Administrative Trustee(s) shall promptly deliver to the Property
Trustee.
SECTION 2.5. Issuance of the Common Securities; Subscription and
Purchase of Notes.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee(s), on behalf of the Trust, shall execute
in accordance with Section 5.2 and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
_______ Common Securities having an aggregate Liquidation Amount of
$____________ against payment by the Depositor of such amount, which amount such
Administrative Trustee(s) shall promptly deliver to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee(s), on behalf of the
Trust, shall subscribe to and purchase from the Depositor Notes, registered in
the name of the Trust and having an aggregate principal amount equal to
$_________, and, in satisfaction of the purchase price for such Notes, the
Property Trustee, on behalf of the Trust, shall deliver to the Depositor the sum
of $_________ (being the sum of the amounts delivered to the Property Trustee
pursuant to (i) the second sentence of Section 2.4 and (ii) the first sentence
of this Section 2.5).
SECTION 2.6. Declaration of Trust.
The exclusive purposes and functions of the Trust are (a) to issue and
sell Trust Securities and use the proceeds from such sale to acquire the Notes,
and (b) to engage in only those activities necessary, appropriate, convenient or
incidental thereto. The Depositor hereby appoints the Trustees as trustees of
the Trust, to have all the rights, powers and duties to the extent set forth
herein, and the Trustees hereby accept such appointment. The Property Trustee
hereby declares that it will hold the Trust Property in trust upon and subject
to the conditions set forth herein for the benefit of the Trust and the
Securityholders. The Administrative Trustee(s) shall have all rights, powers and
duties set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Trustees set forth herein. The Delaware
Trustee shall be one of the Trustees of the Trust for the sole and limited
purpose of fulfilling the requirements of Section 3807(a) of the Delaware
Business Trust Act.
SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance
with the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph (b) of this Section, and in accordance with the following provisions
(i) and (ii), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
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(i) As among the Trustees, each Administrative Trustee(s) shall have
the power and authority to act on behalf of the Trust with respect to the
following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Expense Agreement and the
Certificate Depository Agreement and such other agreements as may be
necessary or desirable in connection with the purposes and function of
the Trust;
(C) assisting in the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under state
securities or blue sky laws, and the qualification of this Trust
Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon
such securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under the
Securities Exchange Act of 1934, as amended, and the preparation and
filing of all periodic and other reports and other documents pursuant
to the foregoing;
(E) the sending of notices (other than notices of default) and
other information regarding the Trust Securities and the Notes to the
Securityholders in accordance with this Trust Agreement;
(F) the appointment of a Paying Agent, authenticating agent and
Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance
with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(I) unless otherwise determined by the Depositor, the Property
Trustee or the Administrative Trustee(s), or as otherwise required by
the Delaware Business Trust Act or the Trust Indenture Act, to execute
on behalf of the Trust (either acting alone or together with any or all
of the Administrative Trustee(s)) any documents that the Administrative
Trustee(s) have the power to execute pursuant to this Trust Agreement;
and
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(J) the taking of any action incidental to the foregoing as the
Trustees may from time to time determine is necessary or advisable to
give effect to the terms of this Trust Agreement for the benefit of the
Securityholders (without consideration of the effect of any such action
on any particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have the power,
duty and authority to act on behalf of the Trust with respect to the
following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Notes;
(C) the collection of interest, principal and any other payments
made in respect of the Notes in the Payment Account;
(D) the distribution through the Paying Agent of amounts owed to
the Securityholders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a
holder of the Notes;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Notes to the Securityholders in
accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(I) after an Event of Default (other than under paragraph (b),
(c), (d) or (e) of the definition of such term if such Event of Default
is by or with respect to the Property Trustee) the taking of any action
incidental to the foregoing as the Property Trustee may from time to
time determine is necessary or advisable to give effect to the terms of
this Trust Agreement and protect and conserve the Trust Property for
the benefit of the Securityholders (without consideration of the effect
of any such action on any particular Securityholder); and
(J) except as otherwise provided in this Section 2.7(a)(ii), the
Property Trustee shall have none of the duties, liabilities, powers or
the authority of the Administrative Trustee(s) set forth in Section
2.7(a)(i).
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(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees (acting on behalf of he Trust) shall not (i)
acquire any investments or engage in any activities not authorized by this Trust
Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or
otherwise dispose of any of the Trust Property or interests therein, including
to Securityholders, except as expressly provided herein, (iii) take any action
that would cause the Trust to fail or cease to qualify as a "grantor trust" for
United States Federal income tax purposes, (iv) incur any indebtedness for
borrowed money or issue any other debt or (v) take or consent to any action that
would result in the placement of a Lien on any of the Trust Property. The
Administrative Trustee(s) shall defend all claims and demands of all Persons at
any time claiming any Lien on any of the Trust Property adverse to the interest
of the Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the Commission
and the execution on behalf of the Trust of a registration statement on
the appropriate form in relation to the Preferred Securities, including
any amendments thereto;
(ii) the determination of the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and the determination of any and all such acts, other than
actions which must be taken by or on behalf of the Trust, and the
advice to the Trustees of actions they must take on behalf of the
Trust, and the preparation for execution and filing of any documents to
be executed and filed by the Trust or on behalf of the Trust, as the
Depositor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(iii) the preparation for filing by the Trust and execution on
behalf of the Trust of an application to the New York Stock Exchange or
any other national stock exchange or the Nasdaq National Market for
listing upon notice of issuance of any Preferred Securities;
(iv) the preparation for filing by the Trust with the Commission
and the execution on behalf of the Trust of a registration statement on
Form 8-A relating to the registration of the Preferred Securities under
Section 12(b) or 12(g) of the Exchange Act, including any amendments
thereto, if required;
(v) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of the
Preferred Securities; and
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(vi) the taking of any other actions necessary or desirable to
carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative
Trustee(s) are authorized and directed to conduct the affairs of the Trust and
to operate the Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the 1940 Act, or fail to be classified
as a grantor trust for United States Federal income tax purposes and so that the
Notes will be treated as indebtedness of the Depositor for United States Federal
income tax purposes. In this connection, the Depositor and the Administrative
Trustee(s) are authorized to take any action, not inconsistent with applicable
law, the Certificate of Trust or this Trust Agreement, that each of the
Depositor and any Administrative Trustee(s) determines in its discretion to be
necessary or desirable for such purposes, as long as such action does not
adversely affect in any material respect the interests of the holders of the
Preferred Securities.
SECTION 2.8. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
SECTION 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Trust and the Securityholders in
accordance with this Trust Agreement.
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Securityholders and for distribution as herein
provided, including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Notes. Amounts held in the Payment
Account shall not be invested by the Property Trustee pending distribution
thereof.
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ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in
the Trust Property, and Distributions (including of Additional Amounts) will be
made on the Trust Securities at the rate and on the dates that payments of
interest (including of Additional Interest, as defined in the Indenture) are
made on the Notes. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative,
and will accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall accrue
from 1999, and, except in the event (and to the extent) that
the Depositor exercises its right to defer the payment of interest on
the Notes pursuant to the Indenture, shall be payable quarterly in
arrears on March 31, June 30, September 30 and December 31 of each
year, commencing on June 30, 1999. If any date on which a Distribution
is otherwise payable on the Trust Securities is not a Business Day,
then the payment of such Distribution shall be made on the next
succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, payment of such
Distribution shall be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on such date
(each date on which distributions are payable in accordance with this
Section 4.1(a), a "Distribution Date").
(ii) Assuming payments of interest on the Notes are made when
due (and before giving effect to Additional Amounts, if applicable),
Distributions on the Trust Securities shall be payable at a rate of
____% per annum of the Liquidation Amount of the Trust Securities. The
amount of Distributions payable for any full period shall be computed
on the basis of a 360-day year of twelve 30-day months. The amount of
Distributions for any partial period shall be computed on the basis of
the number of days elapsed in a 360-day year of twelve 30-day months.
The amount of Distributions payable for any period shall include the
Additional Amounts, if any.
(iii) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on
hand and available in the Payment Account for the payment of such
Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date, which
shall be one Business Day prior to such Distribution Date; provided, however,
that in the event that the Preferred
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Securities do not remain in book-entry-only form, the relevant record date shall
be the date 15 days prior to the relevant Distribution Date.
SECTION 4.2. Redemption.
(a) On each Indenture Redemption Date and on the stated maturity of the
Notes, the Trust will be required to redeem a Like Amount of Trust Securities at
the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed and
that Distributions thereon will cease to accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Notes. Redemptions of the Trust Securities shall be made and the
Redemption Price shall be payable on each Redemption Date only to the extent
that the Trust has funds then on hand and available in the Payment Account for
the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of
any Preferred Securities, then, by 2:00 P.M., New York City time, on the
Redemption Date, subject to Section 4.2(c), the Property Trustee will, so long
as the Preferred Securities are in book-entry-only form, irrevocably deposit
with the Clearing Agency for the Preferred Securities funds sufficient to pay
the applicable Redemption Price and will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the holders thereof.
If the Preferred Securities are no longer in book-entry-only form, the Property
Trustee, subject to Section 4.2(c), will irrevocably deposit with the Paying
Agent funds sufficient to pay the applicable Redemption Price and will give the
Paying Agent irrevocable instructions and authority to pay the Redemption Price
to the Holders thereof upon surrender of their Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions payable on or prior
to the Redemption Date for any Trust Securities called for redemption shall be
payable to the Holders of such
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Trust Securities as they appear on the Register for the Trust Securities on the
relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then upon the
date of such deposit, all rights of Securityholders holding Trust Securities so
called for redemption will cease, except the right of such Securityholders to
receive the Redemption Price and any Distribution payable on or prior to the
Redemption Date, but without interest, and such Securities will cease to be
outstanding. In the event that any date on which any Redemption Price is payable
is not a Business Day, then payment of the Redemption Price payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case, with the same force and effect
as if made on such date. In the event that payment of the Redemption Price in
respect of any Trust Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Guarantor pursuant to the
Guarantee, Distributions on such Trust Securities will continue to accrue, at
the then applicable rate, from the Redemption Date originally established by the
Trust for such Trust Securities to the date such Redemption Price is actually
paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities shall be
made to the recordholders thereof as they appear on the Securities Register for
the Trust Securities on the relevant record date, which shall be one Business
Day prior to the relevant Redemption Date; provided, however, that in the event
that the Preferred Securities do not remain in book-entry-only form, the
relevant record date shall be the date fifteen days prior to the relevant
Redemption Date.
(f) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common Securities and
the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected on a pro rata basis (based upon Liquidation Amounts) not more
than 60 days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for redemption, by such
method (including, without limitation, by lot) as the Property Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to $25 or an integral multiple of $25 in excess thereof) of
the Liquidation Amount of Preferred Securities of a denomination larger than
$25. The Property Trustee shall promptly notify the Security Registrar in
writing of the Preferred Securities selected for redemption and, in the case of
any Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the Liquidation
Amount of Preferred Securities that has been or is to be redeemed.
SECTION 4.3. Subordination of Common Securities.
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(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made, subject to Section 4.2(f), pro rata among the Common
Securities and the Preferred Securities based on the Liquidation Amount of the
Trust Securities; provided, however, that if on any Distribution Date or
Redemption Date any Event of Default resulting from a Indenture Event of Default
shall have occurred and be continuing, no payment of any Distribution (including
Additional Amounts, if applicable) on, or Redemption Price of, any Common
Security, and no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made unless payment in full in
cash of all accumulated and unpaid Distributions (including Additional Amounts,
if applicable) on all Outstanding Preferred Securities for all Distribution
periods terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all Outstanding
Preferred Securities, shall have been made or provided for, and all funds
immediately available to the Property Trustee shall first be applied to the
payment in full in cash of all Distributions (including Additional Amounts, if
applicable) on, or the Redemption Price of, Preferred Securities then due and
payable.
(b) In the case of the occurrence of any Event of Default resulting
from any Indenture Event of Default, the Holder of Common Securities will be
deemed to have waived any right to act with respect to any such Event of Default
under this Trust Agreement until the effect of all such Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Event of Default under this Trust Agreement with
respect to the Preferred Securities has been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of the Holders of
the Preferred Securities and not the Holder of the Common Securities, and only
the Holders of the Preferred Securities will have the right to direct the
Property Trustee to act on their behalf.
SECTION 4.4. Payment Procedures.
Payments of Distributions (including Additional Amounts, if applicable)
in respect of the Preferred Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Securities Register or, if the Preferred Securities are held by a Clearing
Agency, such Distributions shall be made to the Clearing Agency in immediately
available funds, which shall credit the relevant Persons' accounts at such
Clearing Agency on the applicable Distribution Dates. Payments in respect of the
Common Securities shall be made in such manner as shall be mutually agreed
between the Property Trustee and the Common Securityholder.
SECTION 4.5. Tax Returns and Reports.
The Administrative Trustee(s) shall prepare (or cause to be prepared),
at the Depositor's expense, and file all United States Federal, state and local
tax and information returns and reports required to be filed by or in respect of
the Trust. In this regard, the Administrative Trustee(s) shall (a) prepare and
file (or cause to be prepared and filed) the appropriate Internal Revenue
Service Form required to be filed in respect of the Trust in each taxable year
of the Trust and (b) prepare and furnish (or cause to
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be prepared and furnished) to each Securityholder the appropriate Internal
Revenue Service form required to be provided on such form. The Administrative
Trustee(s) shall provide the Depositor and the Property Trustee with a copy of
all such returns and reports promptly after such filing or furnishing. The
Trustees shall comply with United States Federal withholding and backup
withholding tax laws and information reporting requirements with respect to any
payments to Securityholders under the Trust Securities.
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Notes of Additional Sums, the Property Trustee
shall promptly pay any taxes, duties or governmental charges of whatsoever
nature (other than withholding taxes) imposed on the Trust by the United States
or any other taxing authority.
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Preferred Securities (and
any Owner with respect thereto) shall be reduced by the amount of any
corresponding payment such Holder (and Owner) has directly received pursuant to
Section 5.8 of the Indenture or Section 5.14 of this Trust Agreement.
ARTICLE V.
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the formation of the Trust and the contribution by the Depositor
pursuant to Section 2.3 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are outstanding, the Depositor shall
be the sole beneficial owner of the Trust.
SECTION 5.2. The Trust Securities Certificates.
The Preferred Securities Certificates shall be issued in minimum
denominations of $25 Liquidation Amount and integral multiples of $25 in excess
thereof, and the Common Securities Certificates shall be issued in denominations
of $25 Liquidation Amount and integral multiples thereof. The Trust Securities
Certificates shall be executed on behalf of the Trust by manual signature of at
least one Administrative Trustee(s). Trust Securities Certificates bearing the
manual signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due
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registration of such Trust Securities Certificate in such transferee's name
pursuant to Sections 5.4, 5.11 and 5.13.
SECTION 5.3. Execution and Delivery of Trust Securities Certificates.
At the Closing Date, the Administrative Trustee(s) shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Trust and delivered to or
upon the written order of the Depositor, signed by its chairman of the board,
its president, any executive vice president or any vice president, treasurer or
assistant treasurer or controller without further corporate action by the
Depositor, in authorized denominations.
SECTION 5.4. Registration of Transfer and Exchange of Preferred
Securities Certificates.
The Depositor shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.8, a register or registers for the purpose of
registering Trust Securities Certificates and transfers and exchanges of
Preferred Securities Certificates (the "Securities Register") in which, the
registrar designated by the Depositor (the "Securities Registrar"), subject to
such reasonable regulations as it may prescribe, shall provide for the
registration of Preferred Securities Certificates and Common Securities
Certificates (subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. The Bank shall be the initial
Securities Registrar.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.8, the
Administrative Trustee(s) or any one of them shall execute and deliver, in the
name of the designated transferee or transferees, one or more new Preferred
Securities Certificates in authorized denominations of a like aggregate
Liquidation Amount dated the date of execution by such Administrative Trustee or
Trustees.
The Securities Registrar shall not be required to register the transfer
of any Preferred Securities that have been called for redemption. At the option
of a Holder, Preferred Securities Certificates may be exchanged for other
Preferred Securities Certificates in authorized denominations of the same class
and of a like aggregate Liquidation Amount upon surrender of the Preferred
Securities Certificates to be exchanged at the office or agency maintained
pursuant to Section 5.8.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to an Administrative Trustee(s) and
the Securities Registrar duly executed by the Holder or his attorney duly
authorized in writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be canceled and subsequently disposed
of by an Administrative Trustee(s) in accordance with such Person's customary
practice.
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No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustee(s) such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustee(s), or any one of them, on behalf of the
Trust shall execute and make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section, the Administrative Trustee(s) or the Securities Registrar may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an undivided beneficial interest in the assets of the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
SECTION 5.6. Persons Deemed Securityholders.
The Trustees or the Securities Registrar shall treat the Person in
whose name any Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities Certificate for the
purpose of receiving Distributions and for all other purposes whatsoever, and
neither the Trustees nor the Securities Registrar shall be bound by any notice
to the contrary.
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SECTION 5.7. Access to List of Securityholders' Names and Addresses.
The Administrative Trustee(s) or the Depositor shall furnish or cause
to be furnished to the Property Trustee (a) semi-annually on or before January
15 and July 15 in each year, a list, in such form as the Property Trustee may
reasonably require, of the names and addresses of the Securityholders as of the
most recent record date and (b) promptly after receipt by any Administrative
Trustee(s) or the Depositor of a request for such list from the Property Trustee
in order to enable the Property Trustee to discharge its obligations under this
Trust Agreement, a list of the type referred to in clause (a), in each case to
the extent such information is in the possession or control of the
Administrative Trustee(s) or the Depositor and is not identical to a previously
supplied list or has not otherwise been received by the Property Trustee in its
capacity as Securities Registrar. The rights of Securityholders to communicate
with other Securityholders with respect to their rights under this Trust
Agreement or under the Trust Securities, and the corresponding rights of the
Property Trustee shall be as provided in the Trust Indenture Act. Each
Securityholder and each Owner shall be deemed to have agreed not to hold the
Depositor, the Property Trustee or the Administrative Trustee(s) accountable by
reason of the disclosure of its name and address, regardless of the source from
which such information was derived.
SECTION 5.8. Maintenance of Office or Agency.
The Administrative Trustee(s) shall maintain an office or offices or
agency or agencies where Preferred Securities Certificates may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Trustees in respect of the Trust Securities Certificates may be served.
The Administrative Trustee(s) initially designate Progress Rail Services
Corporation, 1600 Progress Drive, Albertville, Alabama 35950, Attn: Chief
Financial Officer, as its principal corporate trust office for such purposes.
The Administrative Trustee(s) shall give prompt written notice to the Depositor
and to the Securityholders of any change in the location of the Securities
Register or any such office or agency.
SECTION 5.9. Appointment of Paying Agent.
The Paying Agent shall make distributions to Securityholders from the
Payment Account and shall report the amounts of such distributions to the
Property Trustee and the Administrative Trustee(s). Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making the distributions referred to above. The Administrative Trustee(s) may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. The Paying Agent
shall initially be the Bank, and any co-paying agent chosen by the Bank, and
acceptable to the Administrative Trustee(s) and the Depositor. Any Person acting
as Paying Agent shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Administrative Trustee(s), the Property Trustee and the
Depositor. In the event that the Bank shall no longer be the Paying Agent or a
successor Paying Agent shall resign or its authority to act be revoked, the
Administrative Trustee(s) shall appoint a successor that is acceptable to the
Property
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Trustee and the Depositor to act as Paying Agent (which shall be a bank or trust
company). The Administrative Trustee(s) shall cause such successor Paying Agent
or any additional Paying Agent appointed by the Administrative Trustee(s) to
execute and deliver to the Trustees an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Trustees that as Paying
Agent, such successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Securityholders in trust for the
benefit of the Securityholders entitled thereto until such sums shall be paid to
such Securityholders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Property Trustee. The provisions of
Sections 8.1, 8.3 and 8.6 herein shall apply to the Bank also in its role as
Paying Agent, for so long as the Bank shall act as Paying Agent and, to the
extent applicable, to any other paying agent appointed hereunder. Any reference
in this Agreement to the Paying Agent shall include any co-paying agent unless
the context requires otherwise.
SECTION 5.10. Ownership of Common Securities by Depositor.
On the Closing Date, the Depositor shall acquire and retain beneficial
and record ownership of the Common Securities. To the fullest extent permitted
by law, other than a transfer in connection with a consolidation or merger of
the Depositor into another corporation, or any conveyance, transfer or lease by
the Depositor of its properties and assets substantially as an entirety to any
Person, pursuant to Section 8.1 of the Indenture, any attempted transfer of the
Common Securities shall be void. The Administrative Trustee(s) shall cause each
Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN CERTAIN LIMITED
CIRCUMSTANCES SET FORTH IN THE AMENDED AND RESTATED TRUST AGREEMENT OF FPC
CAPITAL I."
SECTION 5.11. Book-Entry Preferred Securities Certificates; Common
Securities Certificate.
(a) The Preferred Securities Certificates, upon original issuance, will
be issued in the form of a typewritten Preferred Securities Certificate or
Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust. Such Preferred Securities Certificate or Certificates
shall initially be registered on the Securities Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Owner will receive a
Definitive Preferred Securities Certificate representing such Owner's interest
in such Preferred Securities, except as provided in Section 5.13. Unless and
until Definitive Preferred Securities Certificates have been issued to Owners
pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full
force and effect;
(ii) the Securities Registrar, the Depositor, the Guarantor,
and the Trustees shall be entitled to deal with the Clearing Agency for
all purposes of this Trust Agreement relating to the Book-Entry
Preferred Securities Certificates
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(including the payment of the Liquidation Amount of and Distributions
or Redemption Price on the Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates and the giving of instructions or
directions to Owners of Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates) as the sole Holder of Preferred
Securities evidenced by Book-Entry Preferred Securities Certificates
and shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section 5.11
conflict with any other provisions of this Trust Agreement, the
provisions of this Section 5.11 shall control; and
(iv) the rights of the Owners of the Book-Entry Preferred
Securities Certificates shall be exercised only through the Clearing
Agency and shall be limited to those established by law and agreements
between such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depository Agreement, unless
and until Definitive Preferred Securities Certificates are issued
pursuant to Section 5.13, the initial Clearing Agency will make book-
entry transfers among the Clearing Agency Participants and receive and
transmit payments on the Preferred Securities to such Clearing Agency
Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Owners is
required under this Trust Agreement, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners pursuant to Section
5.13, the Trustees shall give all such notices and communications specified
herein to be given to Owners to the Clearing Agency, and shall have no
obligations to the Owners.
SECTION 5.13. Definitive Preferred Securities Certificates.
If (a) the Depositor advises the Trustees in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
with respect to the Preferred Securities Certificates, and the Depositor is
unable to locate a qualified successor, (b) the Depositor at its option advises
the Trustees in writing that it elects to terminate the book-entry system
through the Clearing Agency or (c) after the occurrence of a Indenture Event of
Default, Owners of Preferred Securities Certificates representing beneficial
interests aggregating at least a majority of the Liquidation Amount advise the
Administrative Trustee(s) in writing that the continuation of a book-entry
system through the Clearing Agency is no longer in the best interest of the
Owners of Preferred Securities Certificates, then the Administrative Trustee(s)
shall notify the Clearing Agency and the Clearing Agency shall notify all Owners
of Preferred Securities Certificates and the other Trustees of the occurrence of
any such event and
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of the availability of the Definitive Preferred Securities Certificates to
Owners of such class or classes, as applicable, requesting the same. Upon
surrender to the Administrative Trustee(s) of the typewritten Preferred
Securities Certificate or Certificates representing the Book Entry Preferred
Securities Certificates by the Clearing Agency, accompanied by registration
instructions, the Administrative Trustee(s), or any one of them, shall execute
the Definitive Preferred Securities Certificates in accordance with the
instructions of the Clearing Agency. Neither the Securities Registrar nor the
Trustees shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Preferred Securities Certificates, the Trustees
shall recognize the Holders of the Definitive Preferred Securities Certificates
as Securityholders. The Definitive Preferred Securities Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustee(s), as evidenced by the
execution thereof by the Administrative Trustee(s) or any one of them.
SECTION 5.14. Rights of Securityholders.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Securityholders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive or similar rights and when issued and delivered to
Securityholders against payment of the purchase price therefor will be fully
paid and nonassessable by the Trust. The Holders of the Trust Securities, in
their capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if,
upon a Indenture Event of Default, the Indenture Trustee fails or the holders of
not less than 25% in principal amount of the outstanding Notes fail to declare
the principal of all of the Notes to be immediately due and payable, the Holders
of at least 25% in Liquidation Amount of the Preferred Securities then
Outstanding shall have such right by a notice in writing to the Depositor, the
Guarantor and the Indenture Trustee; and upon any such declaration such
principal amount of and the accrued interest on all of the Notes shall become
immediately due and payable, provided that the payment of principal and interest
on such Notes shall remain subordinated to the extent provided in the Indenture.
At any time after such a declaration of acceleration with respect to
the Notes has been made and before a judgment or decree for payment of the money
due has been obtained by the Indenture Trustee as in the Indenture provided, the
Holders of a majority in Liquidation Amount of the Preferred Securities, by
written notice to the
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Property Trustee, the Depositor and the Indenture Trustee, may rescind and annul
such declaration and its consequences if:
(i) the Depositor has paid or deposited with the Indenture
Trustee a sum sufficient to pay
(A) all overdue installments of interest (including any
Additional Interest (as defined in the Indenture)) on all of the
Notes,
(B) the principal of any Notes which have become due otherwise
than by such declaration of acceleration and interest thereon at the
rate borne by the Notes, and
(C) all sums paid or advanced by the Indenture Trustee under the
Indenture and the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee and the Property Trustee, their
agents and counsel; and
(ii) all Events of Default with respect to the Notes, other than the
non-payment of the principal of the Notes which has become due solely by
such acceleration, have been cured or waived as provided in Section 5.13 of
the Indenture.
The holders of a majority in aggregate liquidation preference of the
Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default under the Indenture, except a default in the
payment of principal or interest (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Indenture Trustee) or
a default in respect of a covenant or provision which under the Indenture cannot
be modified or amended without the consent of the holder of each outstanding
Note. No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of the Preferred
Securities all or part of which is represented by Book-Entry Preferred
Securities Certificates, a record date shall be established for determining
Holders of Outstanding Preferred Securities entitled to join in such notice,
which record date shall be at the close of business on the day the Property
Trustee receives such notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record date;
provided, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day which is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written
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notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.14(b).
(c) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Indenture Event of Default specified in Section 5.1(1)
or 5.1(2) of the Indenture, any Holder of Preferred Securities shall have the
right to institute a proceeding directly against the Depositor, pursuant to
Section 5.8 of the Indenture, for enforcement of payment to such Holder of the
principal amount of or interest on Notes having a principal amount equal to the
Liquidation Amount of the Preferred Securities of such Holder (a "Direct
Action"). Except as set forth in Section 5.14(b) and this Section 5.14(c), the
Holders of Preferred Securities shall have no right to exercise directly any
right or remedy available to the holders of, or in respect of, the Notes.
ARTICLE VI.
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights.
(a) Except as provided in this Section, in Sections 5.14, 8.10 and 10.2
and in the Indenture and as otherwise required by law, no Holder of Preferred
Securities shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(b) So long as any Notes are held by the Property Trustee, the Trustees
shall not (i) direct the time, method and place of conducting any proceeding for
any remedy available to the Indenture Trustee, or executing any trust or power
conferred on the Indenture Trustee with respect to such Notes, (ii) waive any
past default which is waivable under Section 5.13 of the Indenture, (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Notes shall be due and payable or (iv) consent to any amendment,
modification or termination of the Indenture or the Notes, where such consent
shall be required, without, in each case, obtaining the prior approval of the
Holders of a majority in Liquidation Amount of all Outstanding Preferred
Securities, provided, however, that where a consent under the Indenture would
require the consent of each Holder of Notes affected thereby, no such consent
shall be given by the Property Trustee without the prior written consent of each
Holder of Preferred Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of Preferred
Securities, except by a subsequent vote of the Holders of Preferred Securities.
The Property Trustee shall notify all Holders of the Preferred Securities of any
notice of default received from the Indenture Trustee with respect to the Notes.
In addition to obtaining the foregoing approvals of the Holders of
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the Preferred Securities, prior to taking any of the foregoing actions, the
Trustees shall, at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that such action shall not cause the
Trust to fail to be classified as a grantor trust for United States Federal
income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or
the Trustees otherwise propose to effect, (i) any action that would adversely
affect in any material respect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Preferred Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a majority in Liquidation
Amount of the Outstanding Preferred Securities. Notwithstanding any other
provision of this Trust Agreement, no amendment to this Trust Agreement may be
made if, as a result of such amendment, it would cause the Trust to fail to be
classified as a grantor trust for United States Federal income tax purposes.
SECTION 6.2. Notice of Meetings.
Notice of all meetings of the Preferred Securityholders, stating the
time, place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 10.8 to each Preferred Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
SECTION 6.3. Meetings of Preferred Securityholders.
No annual meeting of Securityholders is required to be held. The
Administrative Trustee(s), however, shall call a meeting of Preferred
Securityholders to vote on any matter upon the written request of the Preferred
Securityholders of record of 25% of the Preferred Securities (based upon their
Liquidation Amount) and the Administrative Trustee(s) or the Property Trustee
may, at any time in their discretion, call a meeting of Preferred
Securityholders to vote on any matters as to which Preferred Securityholders are
entitled to vote.
Preferred Securityholders of record of 50% of the Outstanding Preferred
Securities (based upon their Liquidation Amount), present in person or by proxy,
shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by proxy, holding more
than a majority of the Preferred Securities (based upon their Liquidation
Amount) held by the Preferred Securityholders of record present, either in
person or by proxy, at such meeting shall constitute the action of the Preferred
Securityholders, unless this Trust Agreement requires a greater number of
affirmative votes.
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SECTION 6.4. Voting Rights.
Securityholders shall be entitled to one vote for each $25 of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote.
SECTION 6.5. Proxies, etc.
At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Administrative Trustee(s), or
with such other officer or agent of the Trust as the Administrative Trustee(s)
may direct, for verification prior to the time at which such vote shall be
taken. Pursuant to a resolution of the Property Trustee, proxies may be
solicited in the name of the Property Trustee or one or more officers of the
Property Trustee. Only Securityholders of record shall be entitled to vote. When
Trust Securities are held jointly by several persons, any one of them may vote
at any meeting in person or by proxy in respect of such Trust Securities, but if
more than one of them shall be present at such meeting in person or by proxy,
and such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A
proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
SECTION 6.6. Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may be
taken without a meeting if Securityholders holding more than a majority of all
Outstanding Trust Securities (based upon their Liquidation Amount) entitled to
vote in respect of such action (or such larger proportion thereof as shall be
required by any express provision of this Trust Agreement) shall consent to the
action in writing.
SECTION 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate in
any distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustee(s) may from time to time fix a date,
not more than 90 days prior to the date of any meeting of Securityholders or the
payment of a distribution or other action, as the case may be, as a record date
for the determination of the identity of the Securityholders of record for such
purposes.
SECTION 6.8. Acts of Securityholders.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Trust Agreement to be given, made
or taken by
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Securityholders or Owners may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Securityholders
or Owners in person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to an Administrative Trustee(s).
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders or
Owners signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.1) conclusive in favor
of the Trustees, if made in the manner provided in this Section.
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. 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. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which any Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
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 Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such liquidation amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustee(s) or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
A Securityholder may institute a legal proceeding directly against the
Guarantor under the Guarantee to enforce its rights under the Guarantee without
first instituting a legal proceeding against the Guarantee Trustee (as defined
in the Guarantee), the Trust or any person or entity.
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SECTION 6.9. Inspection of Records.
Upon reasonable notice to the Administrative Trustee(s) and the
Property Trustee, the records of the Trust shall be open to inspection by
Securityholders during normal business hours for any purpose reasonably related
to such Securityholder's interest as a Securityholder.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and
the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf
of and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Securityholders that:
(a) the Property Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of the United
States;
(b) the Property Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware corporation duly created,
validly existing and in good standing in the State of Delaware;
(d) the Delaware Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and constitutes the
valid and legally binding agreement of each of the Property Trustee and the
Delaware Trustee enforceable against each of them in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(f) the execution, delivery and performance of this Trust Agreement has
been duly authorized by all necessary corporate or other action on the part of
the Property Trustee and the Delaware Trustee and does not require any approval
of stockholders of the Property Trustee and the Delaware Trustee and such
execution, delivery and performance will not (i) violate the Charter or By-laws
of the Property Trustee or the
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Delaware Trustee, (ii) violate any provision of, or constitute, with or without
notice or lapse of time, a default under, or result in the creation or
imposition of, any Lien on any properties included in the Trust Property
pursuant to the provisions of, any indenture, mortgage, credit agreement,
license or other agreement or instrument to which the Property Trustee or the
Delaware Trustee is a party or by which it is bound, or (iii) violate any law,
governmental rule or regulation of the United States or the State of Delaware,
as the case may be, governing the banking, trust or general powers of the
Property Trustee or the Delaware Trustee (as appropriate in context) or any
order, judgment or decree applicable to the Property Trustee or the Delaware
Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Property Trustee or the Delaware Trustee (as
appropriate in context) contemplated herein or therein requires the consent or
approval of, the giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency under any
existing Federal law governing the banking, trust or general powers of the
Property Trustee or the Delaware Trustee, as the case may be, under the laws of
the United States or the State of Delaware;
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against or
affecting the Property Trustee or the Delaware Trustee in any court or before
any governmental authority, agency or arbitration board or tribunal which,
individually or in the aggregate, would materially and adversely affect the
Trust or would question the right, power and authority of the Property Trustee
or the Delaware Trustee, as the case may be, to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
SECTION 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued on the Closing Date on
behalf of the Trust have been duly authorized and will have been, duly and
validly executed, issued and delivered by the Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust Agreement
and the Securityholders will be, as of each such date, entitled to the benefits
of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by
the Trust (or the Trustees on behalf of the Trust) under the laws of the State
of Delaware or any political subdivision thereof in connection with the
execution, delivery and performance by the Property Trustee or the Delaware
Trustee, as the case may be, of this Trust Agreement.
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ARTICLE VIII.
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee,
subject to the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Trust Agreement shall require the Trustees to expend or risk their own
funds or otherwise incur any financial liability in the performance of any of
their duties hereunder, or in the exercise of any of their rights or powers, if
they shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
them. Whether or not therein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the provisions of this
Section. Nothing in this Trust Agreement shall be construed to release a Trustee
from liability for its own gross negligent action, its own gross negligent
failure to act, or its own willful misconduct. To the extent that, at law or in
equity, a Trustee has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or to the Securityholders, such Trustee shall not
be liable to the Trust or to any Securityholder for such Trustee's good faith
reliance on the provisions of this Trust Agreement. The provisions of this Trust
Agreement, to the extent that they restrict the duties and liabilities of the
Trustees otherwise existing at law or in equity, are agreed by the Depositor and
the Securityholders to replace such other duties and liabilities of the
Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.1(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
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(ii) the Property 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 not less than a
majority in Liquidation Amount of the Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Notes and the
Payment Account shall be to deal with such Property in a similar manner
as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust Agreement and the
Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to Section
3.1 and except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustee(s) or the
Depositor with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for the default or misconduct of
the Administrative Trustee(s) or the Depositor.
SECTION 8.2. Certain Notices.
Within 90 days after the occurrence of any Event of Default actually
known to the Property Trustee, the Property Trustee shall transmit, in the
manner and to the extent provided in Section 10.8, notice of such Event of
Default to the Securityholders, the Administrative Trustee(s) and the Depositor,
unless such Event of Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the Notes
pursuant to the Indenture, the Administrative Trustee(s) shall transmit, in the
manner and to the extent provided in Section 10.8, notice of such exercise to
the Securityholders and the Property Trustee, unless such exercise shall have
been revoked.
SECTION 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond,
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debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of action or
(ii) in construing any of the provisions of this Trust Agreement the Property
Trustee finds the same ambiguous or inconsistent with any other provisions
contained herein or (iii) the Property Trustee is unsure of the application of
any provision of this Trust Agreement, then, except as to any matter as to which
the Preferred Securityholders are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Securityholders, in
which event the Property Trustee shall have no liability except for its own bad
faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustee(s) contemplated by this Trust Agreement shall be sufficiently evidenced
by an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be established before
undertaking, suffering or omitting any action hereunder, the Property Trustee
(unless other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the Depositor or
the Administrative Trustee(s);
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel (which counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its
employees) 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 and in
accordance with such advice, such counsel may be counsel to the Depositor or any
of its Affiliates, and may include any of its employees; the Property Trustee
shall have the right at any time to seek instructions concerning the
administration of this Trust Agreement from any court of competent jurisdiction;
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(g) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Securityholders pursuant to this Trust Agreement, unless
such Securityholders shall have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(h) the Property 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, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Securityholders, but the
Property Trustee may make such further inquiry or investigation into such facts
or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
agents or attorneys, provided that the Property Trustee shall be responsible for
its own negligence or recklessness with respect to selection of any agent or
attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder the Property
Trustee (i) may request instructions from the Holders of the Trust Securities
which instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii) shall
be protected in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any duty
or obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Depositor, and the Trustees do not
assume any responsibility for their correctness. The Trustees shall not be
accountable for the use or application by the Depositor of the proceeds of the
Notes.
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SECTION 8.5. May Hold Securities.
Except as provided in the definition of the term "Outstanding" in
Article I, any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
SECTION 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable compensation
for all services rendered by them 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, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee, (iii) any
officer, director, shareholder, employee, representative or agent of any
Trustee, and (iv) any employee or agent of the Trust or its Affiliates,
(referred to herein as an "Indemnified Person") from and against any loss,
damage, liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by such Indemnified Person by reason of the creation,
operation or termination of the Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Trust Agreement, except
that no Indemnified Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by reason of
negligence or willful misconduct with respect to such acts or omissions.
The provisions of this Section 8.6 shall survive the termination of
this Trust Agreement or the resignation or removal of any Trustee.
No Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.6.
The Depositor and any Trustee may engage in or possess an interest in
other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and the Trust and
the Holders of Trust Securities shall have no rights by virtue of this Trust
Agreement in and to such independent
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ventures or the income or profits derived therefrom, and the pursuit of any such
venture, even if competitive with the business of the Trust, shall not be deemed
wrongful or improper. Neither the Depositor, nor any Trustee, shall be obligated
to present any particular investment or other opportunity to the Trust even if
such opportunity is of a character that, if presented to the Trust, could be
taken by the Trust, and the Depositor or any Trustee shall have the right to
take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Trustee may engage or be interested in any financial or other transaction with
the Depositor or any Affiliate of the Depositor, or may act as depository for,
trustee or agent for, or act on any committee or body of holders of, securities
or other obligations of the Depositor or its Affiliates.
SECTION 8.7. Corporate Property Trustee Required; Eligibility of
Trustees.
(a) There shall at all times be a Property Trustee hereunder. The
Property Trustee shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person 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 Property Trustee with respect to the Trust Securities 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.
(b) There shall at all times be one or more Administrative Trustee(s)
hereunder. Each Administrative Trustee(s) shall be either a natural person who
is at least 21 years of age or a legal entity that shall act through one or more
persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee. The Delaware
Trustee shall either be (i) a natural person who is at least 21 years of age and
a resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
SECTION 8.8. Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement. The Indenture and the guarantee are hereby excluded for purposes of
Section 310(b)(1) of the Trust Indenture Act.
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SECTION 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at
any time or times, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Depositor and the Administrative
Trustee(s), by agreed action of the majority of such Trustees, shall have power
to appoint, and upon the written request of the Administrative Trustee(s), the
Depositor shall for such purpose join with the Administrative Trustee(s) in the
execution, delivery, and performance of all instruments and agreements necessary
or proper to appoint, one or more Persons approved by the Property Trustee
either to act as co-trustee, jointly with the Property Trustee, of all or any
part of such Trust Property, or to the extent required by law to act as separate
trustee of any such property, 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 Depositor
does not join in such appointment within 15 days after the receipt by it of a
request so to do, or in case a Indenture Event of Default has occurred and is
continuing, the Property Trustee alone shall have power to make such
appointment. Any co-trustee or separate trustee appointed pursuant to this
Section shall either be (i) a natural person who is at least 21 years of age and
a resident of the United States or (ii) a legal entity with its principal place
of business in the United States that shall act through one or more persons
authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming 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 Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed 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 Trustees specified hereunder shall be exercised
solely by such Trustees and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property 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 Property
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.
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(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
Section, and, in case a Indenture Event of Default has occurred and is
continuing, the Property Trustee shall have power to accept the resignation of,
or remove, any such co-trustee or separate trustee without the concurrence of
the Depositor. Upon the written request of the Property Trustee, the Depositor
shall join with the Property Trustee in the execution, delivery and performance
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 Property Trustee or any other
trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
SECTION 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Trustee (the "Relevant Trustee") and
no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time by giving written notice thereof to the Securityholders.
If the instrument of acceptance by the successor Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within 30 days after
the giving of such notice of resignation, the Relevant Trustee may petition, at
the expense of the Trust, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
Unless a Indenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Indenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority in Liquidation
Amount of the Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust). An Administrative Trustee(s)
may be removed by the Common Securityholder at any time.
If any Trustee shall resign, be removed or become incapable of acting
as Trustee, or if a vacancy shall occur in the office of any Trustee for any
cause, at a time when no Indenture Event of Default shall have occurred and be
continuing, the Common Securityholder, by Act of the Common Securityholder
delivered to the retiring
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Trustee, shall promptly appoint a successor Trustee or Trustees, which successor
Trustee shall be domiciled outside of the State of Florida, and the retiring
Trustee shall comply with the applicable requirements of Section 8.11. If the
Property Trustee or the Delaware Trustee shall resign, be removed or become
incapable of continuing to act as the Property Trustee or the Delaware Trustee,
as the case may be, at a time when a Indenture Event of Default shall have
occurred and be continuing, the Preferred Securityholders, by Act of the
Securityholders of a majority in Liquidation Amount of the Preferred Securities
then Outstanding delivered to the retiring Relevant Trustee, shall promptly
appoint a successor Relevant Trustee or Trustees, and such successor Trustee
shall comply with the applicable requirements of Section 8.11. If an
Administrative Trustee shall resign, be removed or become incapable of acting as
Administrative Trustee, at a time when a Indenture Event of Default shall have
occurred and be continuing, the Common Securityholder by Act of the Common
Securityholder delivered to the Administrative Trustee(s) shall promptly appoint
a successor Administrative Trustee or Administrative Trustee(s) and such
successor Administrative Trustee or Trustees shall comply with the applicable
requirements of Section 8.11. If no successor Relevant Trustee shall have been
so appointed by the Common Securityholder or the Preferred Securityholders and
accepted appointment in the manner required by Section 8.11, any Securityholder
who has been a Securityholder of Trust Securities for at least six months may,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.8 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Depositor, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by (a) the unanimous act of the remaining Administrative
Trustee(s) if there are at least two of them or (b) otherwise by the Depositor
(with the successor in each case being a Person who satisfies the eligibility
requirement for Administrative Trustee(s) or Delaware Trustee, as the case may
be, set forth in Section 8.7).
SECTION 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee such
successor Trustee so appointed shall execute, acknowledge and deliver to the
Trust 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 Depositor or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee
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all the rights, powers and trusts of the retiring Trustee and if the Property
Trustee is the resigning Trustee shall duly assign, transfer and deliver to the
successor Trustee all property and money held by such retiring Property Trustee
hereunder.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each successor Relevant Trustee with respect
to the Trust Securities shall execute and deliver an amendment hereto wherein
each successor Relevant Trustee shall accept such appointment and which (a)
shall contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust and (b) shall add to or change any of the
provisions of this Trust Agreement as shall be necessary to provide for or
facilitate the administration of the Trust by more than one Relevant Trustee, it
being understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Trust or any successor Relevant Trustee such retiring Relevant
Trustee shall duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Property Trustee or the Delaware 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 such
Relevant Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of such Relevant Trustee, shall
be the successor of such Relevant Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
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SECTION 8.13. Preferential Collection of Claims Against Depositor or
Trust.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Trust Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Trust Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Property Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement adjustment or compensation affecting the
Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 8.14. Reports by Property Trustee.
(a) Not later than 60 days following May 15 of each year commencing
with May 15, 2000, the Property Trustee shall transmit to all Securityholders in
accordance with Section 10.8, and to the Depositor, a brief report dated as of
such May 15 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if to
the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect;
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(ii) a statement that the Property Trustee has complied with
all of its obligations under this Trust Agreement during the
twelve-month period (or, in the case of the initial report, the period
since the Closing Date) ending with such May 15 or, if the Property
Trustee has not complied in any material respect with such obligations,
a description of such noncompliance; and
(iii) any change in the property and funds in its possession
as Property Trustee since the date of its last report and any action
taken by the Property Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Trust Securities.
(b) In addition the Property Trustee shall transmit to Securityholders
such reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Property Trustee with each national stock exchange,
the NASDAQ National Market or such other interdealer quotation system or
self-regulatory organization upon which the Trust Securities are listed or
traded, with the Commission and with the Depositor.
SECTION 8.15. Reports to the Property Trustee.
The Depositor and the Administrative Trustee(s) on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act.
SECTION 8.16. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustee(s) on behalf of
the Trust shall provide to the Property Trustee such evidence of compliance with
any conditions precedent, if any, provided for in this Trust Agreement that
relate to any of the matters set forth in Section 314 (c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
SECTION 8.17. Number of Trustees.
(a) The number of Trustees shall initially be three, provided that the
Holder of all of the Common Securities by written instrument may increase or
decrease the number of Administrative Trustee(s). The Property Trustee and the
Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustee(s) is not reduced pursuant to Section 8.17(a), or if the
number of
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Trustees is increased pursuant to Section 8.17(a), a vacancy shall occur. The
vacancy shall be filled with a Trustee appointed in accordance with Section
8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative
Trustee(s) shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee(s) in accordance with Section 8.10, the Administrative
Trustee(s) in office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted to the
Administrative Trustee(s) and shall discharge all the duties imposed upon the
Administrative Trustee(s) by this Trust Agreement.
SECTION 8.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
2.7(a), including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) The Administrative Trustee(s) shall have power to delegate from
time to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustee(s) or otherwise as the Administrative
Trustee(s) may deem expedient, to the extent such delegation is not prohibited
by applicable law or contrary to the provisions of this Trust Agreement, as set
forth herein.
ARTICLE IX.
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Termination Upon Expiration Date.
Unless earlier terminated, the Trust shall automatically terminate on
December 31, 2040 (the "Expiration Date"), following the distribution of the
Trust Property in accordance with Section 9.4.
SECTION 9.2. Early Termination.
The first to occur of any of the following events is an "Early
Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from the Depositor at
any time to terminate the Trust and distribute Notes to Securityholders in
exchange for the
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Preferred Securities (which direction is optional and wholly within the
discretion of the Depositor);
(c) the redemption of all of the Preferred Securities in connection
with the redemption of all the Notes; and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
SECTION 9.3. Termination.
The respective obligations and responsibilities of the Trustees and the
Trust created and continued hereby shall terminate upon the latest to occur of
the following: (a) the distribution by the Property Trustee to Securityholders
upon the liquidation of the Trust pursuant to Section 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2, of all
amounts required to be distributed hereunder upon the final payment of the Trust
Securities; (b) the payment of any expenses owed by the Trust; and (c) the
discharge of all administrative duties of the Administrative Trustee(s),
including the performance of any tax reporting obligations with respect to the
Trust or the Securityholders.
SECTION 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or (d)
of Section 9.2 occurs or upon the Expiration Date, the Trust shall be liquidated
by the Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to each Securityholder a Like Amount of Notes,
subject to Section 9.4(d). Notice of liquidation shall be given by the Property
Trustee by first-class mail, postage prepaid mailed not later than 30 nor more
than 60 days prior to the Liquidation Date to each Holder of Trust Securities at
such Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Notes; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for Notes,
or if Section 9.4(d) applies receive a Liquidation Distribution, as the
Administrative Trustee(s) or the Property Trustee shall deem
appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect
the liquidation of the Trust and distribution of the Notes to Securityholders,
the Property Trustee shall establish a record date for such distribution (which
shall be not more than 45 days prior
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to the Liquidation Date) and, either itself acting as exchange agent or through
the appointment of a separate exchange agent, shall establish such procedures as
it shall deem appropriate to effect the distribution of Notes in exchange for
the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Notes will be
issued to holders of Trust Securities Certificates, upon surrender of such
certificates to the Administrative Trustee(s) or their agent for exchange, (iii)
the Depositor shall use its best efforts to have the Notes listed on the New
York Stock Exchange or on such other exchange, interdealer quotation system or
self-regulatory organization as the Preferred Securities are then listed, (iv)
any Trust Securities Certificates not so surrendered for exchange will be deemed
to represent a Like Amount of Notes, accruing interest at the rate provided for
in the Notes from the last Distribution Date on which a Distribution was made on
such Trust Securities Certificates until such certificates are so surrendered
(and until such certificates are so surrendered, no payments of interest or
principal will be made to Holders of Trust Securities Certificates with respect
to such Notes) and (v) all rights of Securityholders holding Trust Securities
will cease, except the right of such Securityholders to receive Notes upon
surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions of this
Section 9.4, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Notes in the manner
provided herein is determined by the Property Trustee not to be practical, the
Trust Property shall be liquidated, and the Trust shall be dissolved, wound-up
or terminated, by the Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution, winding-up or other
termination of the Trust, Securityholders will be entitled to receive out of the
assets of the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to the Liquidation Amount per Trust Security plus
accumulated and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If, upon any such dissolution, winding up
or termination, the Liquidation Distribution can be paid only in part because
the Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding sentence, the
amounts payable by the Trust on the Trust Securities shall be paid on a pro rata
basis (based upon Liquidation Amounts). The holder of the Common Securities will
be entitled to receive Liquidation Distributions upon any such dissolution,
winding-up or termination pro rata (determined as aforesaid) with Holders of
Preferred Securities, except that, if a Indenture Event of Default has occurred
and is continuing, the Preferred Securities shall have a priority over the
Common Securities.
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of
the Trust.
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except pursuant
to this Section 9.5. At the request of the
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Depositor, with the consent of the Guarantor and the Administrative Trustee(s)
and without the consent of the Holders of the Preferred Securities, the Property
Trustee or the Delaware Trustee, the Trust may merge with or into, consolidate,
amalgamate, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to a trust organized as such under the laws
of any State; provided, that (i) such successor entity either (a) expressly
assumes all of the obligations of the Trust with respect to the Preferred
Securities or (b) substitutes for the Preferred Securities other securities
having substantially the same terms as the Preferred Securities (the "Successor
Securities") so long as the Successor Securities rank the same as the Preferred
Securities rank in priority with respect to distributions and payments upon
liquidation, redemption and otherwise, (ii) the Depositor expressly appoints a
trustee of such successor entity possessing the same powers and duties as the
Property Trustee as the holder of the Notes, (iii) the Successor Securities are
listed or traded, or any Successor Securities will be listed upon notification
of issuance, on any national securities exchange or other organization on which
the Preferred Securities are then listed or traded, if any, (iv) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
cause the Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
holders of the Preferred Securities (including any Successor Securities) in any
material respect, (vi) such successor entity has a purpose identical to that of
the Trust, (vii) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Depositor has received an Opinion of Counsel
to the effect that (a) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the holders of the Preferred Securities (including any
Successor Securities) in any material respect, and (b) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, neither
the Trust nor such successor entity will be required to register as an
investment company under the 1940 Act and (viii) the Depositor owns all of the
Common Securities of such successor entity and the Guarantor guarantees the
obligations of such successor entity under the Successor Securities at least to
the extent provided by the Guarantee. Notwithstanding the foregoing, the Trust
shall not, except with the consent of holders of 100% in Liquidation Amount of
the Preferred Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause the
Trust or the successor entity to be classified as other than a grantor trust for
United States Federal income tax purposes.
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ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders.
The death or incapacity of any person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such person or any
Securityholder for such person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
SECTION 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the
Property Trustee, the Administrative Trustee(s) and the Depositor, without the
consent of any Securityholders, (i) to cure any ambiguity, correct or supplement
any provision herein which may be inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Trust Agreement, which shall not be inconsistent with the other
provisions of this Trust Agreement, or (ii) to modify, eliminate or add to any
provisions of this Trust Agreement to such extent as shall be necessary to
ensure that the Trust will be classified for United States Federal income tax
purposes as a grantor trust at all times that any Trust Securities are
outstanding or to ensure that the Trust will not be required to register as an
investment company under the 1940 Act; provided, however, that in the case of
clause (i), such action shall not adversely affect in any material respect the
interests of any Securityholder, and any amendments of this Trust Agreement
shall become effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Trustees and the Depositor with (i) the
consent of Trust Securityholders representing a majority (based upon Liquidation
Amounts) of the Trust Securities then Outstanding and (ii) receipt by the
Trustees of an Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance with such amendment
will not affect the Trust's status as a grantor trust for United States Federal
income tax purposes or the Trust's exemption from status of an investment
company under the 1940 Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.3 or 6.6 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the
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Securityholders (such consent being obtained in accordance with Section 6.3 or
6.6 hereof), this paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
status of an investment company under the 1940 Act or fail or cease to be
classified as a grantor trust for United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
this Trust Agreement may not be amended in a manner which imposes any additional
obligation on the Depositor, the Property Trustee or the Delaware Trustee
without the consent of the Depositor, the Property Trustee or the Delaware
Trustee, as the case may be.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustee(s) shall promptly provide to the Depositor a copy of
such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement which affects its
own rights, duties or immunities under this Trust Agreement. The Property
Trustee shall be entitled to receive an Opinion of Counsel and an Officers'
Certificate stating that any amendment to this Trust Agreement is in compliance
with this Trust Agreement.
SECTION 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates 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 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES THEREOF.
SECTION 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day that is a Business Day (except as
otherwise provided in Sections 4.1(a) and 4.2(d)), with the same force and
effect as though made on the date
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fixed for such payment, and no interest shall accrue thereon for the period
after such date.
SECTION 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Trust or the Relevant Trustee,
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Depositor that is permitted under
Article Eight of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
SECTION 10.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
SECTION 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon any Securityholder or the Depositor may be given or served in writing
by deposit thereof, first-class postage prepaid, in the United States mail, hand
delivery or facsimile transmission, in each case, addressed, (a) in the case of
a Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address may appear on the Securities Register; and (b)
in the case of the Common Securityholder or the Depositor, to Florida Progress
Funding Corporation, 300 Delaware Avenue, Suite 319, Wilmington, Delaware 19801,
Attention: ___________, facsimile no.: (___) ___-____. Any notice to Preferred
Securityholders shall also be given to such owners as have, within two years
preceding the giving of such notice, filed their names and addresses with the
Property Trustee for that purpose. Such notice, demand or other communication to
or upon a Securityholder shall be deemed to have been sufficiently given or
made, for all purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust, the Property Trustee, the Delaware Trustee or the Administrative
Trustee(s) shall be given in writing addressed (until another address is
published by the Trust) as follows: (a) with respect to the Property Trustee to
The First National Bank of Chicago, One First National Plaza, Suite IL1-0126,
Chicago, Illinois 60670, Attention: Corporate Trust Administration; (b) with
respect to the Delaware Trustee, to First Chicago Delaware Inc., 300 King
Street, Wilmington, Delaware 19801, Attention: _________ and (c) with respect to
the Administrative Trustee(s), to them c/o Progress Rail Services Corporation,
1600 Progress Drive, Albertville, Alabama 35950 marked "Attention Administrative
Trustee(s) of FPC Capital I." Such notice, demand or other communication to or
upon the Trust or the Property Trustee shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the Trust or the
Property Trustee.
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SECTION 10.9. Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Securityholders, that at the expense
of the Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Trust Agreement.
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Trust Agreement by any
of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Trust Agreement as so modified
or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee and
Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND
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PROVISIONS OF THIS TRUST AGREEMENT AND AGREEMENT TO THE SUBORDINATION PROVISIONS
AND OTHER TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE
AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND
PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS
BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
FLORIDA PROGRESS FUNDING CORPORATION
By:_____________________________________
Name:________________________________
Title:_______________________________
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By:_____________________________________
Name:________________________________
Title:_______________________________
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By:_____________________________________
Name:________________________________
Title:_______________________________
PROGRESS RAIL SERVICES CORPORATION,
as Administrative Trustee
By:_____________________________________
Name:________________________________
Title:_______________________________
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EXHIBIT A
CERTIFICATE OF TRUST
OF
FPC CAPITAL I
This CERTIFICATE OF TRUST OF FPC CAPITAL I (the "Trust"), dated March
22, 1999, is being duly executed and filed by the undersigned, as trustees, to
form a business trust under the Delaware Business Trust Act (12 Del. C. (S)
3801 et seq.).
1. Name. The name of the business trust being formed hereby is FPC
Capital I.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are First
Chicago Delaware Inc., 300 King Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective upon
filing with the Secretary of State.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust as of the date first above written.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:_____________________________________
Name:________________________________
Title:_______________________________
FIRST CHICAGO DELAWARE INC.,
as Trustee
By:_____________________________________
Name:________________________________
Title:_______________________________
<PAGE>
EXHIBIT B
The Depository Trust Company,
55 Water Street, 49th Floor,
New York, New York 10041-0099 __________, 1999
Attention: General Counsel's Office
Re: FPC Capital I ____% Cumulative Quarterly Income Preferred Securities,
Series A
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters relating to
the issuance and deposit with The Depository Trust Company ("DTC") of the FPC
Capital I ____% Cumulative Quarterly Income Preferred Securities, Series A (the
"Preferred Securities"), of FPC Capital I, a Delaware business trust (the
"Issuer"), formed pursuant to a Trust Agreement between Florida Progress Funding
Corporation and The First National Bank of Chicago, as Property Trustee, First
Chicago Delaware Inc., as Delaware Trustee, and the Administrative Trustee named
therein. The payment of distributions on the Preferred Securities, and payments
due upon liquidation of Issuer or redemption of the Preferred Securities, to the
extent the Issuer has funds available for the payment thereof are guaranteed by
Florida Progress Corporation to the extent set forth in a Guarantee Agreement
dated __________ 1, 1999 by Florida Progress Corporation with respect to the
Preferred Securities. Florida Progress Funding Corporation and the Issuer
propose to sell the Preferred Securities to certain Underwriters (the
"Underwriters") pursuant to an Underwriting Agreement dated __________ __, 1999
by and among the Underwriters, the Issuer, Florida Progress Funding Corporation
and Florida Progress Corporation and the Underwriters wish to take delivery of
the Preferred Securities through DTC. The First National Bank of Chicago is
acting as transfer agent and registrar with respect to the Preferred Securities
(the "Transfer Agent and Registrar").
To induce DTC to accept the Preferred Securities as eligible for
deposit at DTC, and to act in accordance with DTC's rules with respect to the
Preferred Securities, the Issuer, the Transfer Agent and Registrar and DTC agree
among each other as follows:
1. Prior to the closing of the sale of the Preferred Securities to the
Underwriters, which is expected to occur on or about __________ __, 1999, there
shall be deposited with DTC one or more global certificates (individually and
collectively, the "Global Certificate") registered in the name of DTC's
Preferred Securities nominee, Cede & Co., representing an aggregate of
____________ Preferred Securities and bearing the following legend:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to Issuer or
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its agent for registration of transfer, exchange, or payment, and
any certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or
to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch
as the registered owner hereof, Cede & Co., has an interest
herein.
2. The Amended and Restated Trust Agreement of the Issuer provides for
the voting by holders of the Preferred Securities under certain limited
circumstances. The Issuer shall establish a record date for such purposes and
shall, to the extent possible, give DTC notice of such record date not less than
15 calendar days in advance of such record date.
3. In the event of a stock split, conversion, recapitalization,
reorganization or any other similar transaction resulting in the cancellation of
all or any part of the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice of such event at least 5
business days prior to the effective date of such event.
4. In the event of distribution on, or an offering or issuance of
rights with respect to, the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice specifying: (a) the amount
of and conditions, if any, applicable to the payment of any such distribution or
any such offering or issuance of rights; (b) any applicable expiration or
deadline date, or any date by which any action on the part of the holders of
Preferred Securities is required; and (c) the date any required notice is to be
mailed by or on behalf of the Issuer to holders of Preferred Securities or
published by or on behalf of the Issuer (whether by mail or publication, the
"Publication Date"). Such notice shall be sent to DTC by a secure means (e.g.,
legible telecopy, registered or certified mail, overnight delivery) in a timely
manner designed to assure that such notice is in DTC's possession no later than
the close of business on the business day before the Publication Date. The
Issuer or the Transfer Agent and Registrar will forward such notice either in a
separate secure transmission for each CUSIP number or in a secure transmission
of multiple CUSIP numbers (if applicable) that includes a manifest or list of
each CUSIP number submitted in that transmission. (The party sending such notice
shall have a method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be not less than 30
calendar days nor more than 60 calendar days prior to the payment of any such
distribution or any such offering or issuance of rights with respect to the
Preferred Securities. After establishing the amount of payment to be made on the
Preferred Securities, the Issuer or the Transfer Agent and Registrar will notify
DTC's Dividend Department of such payment 5 business days prior to payment date.
Notices to DTC's Dividend Department by telecopy shall be sent to (212)
709-1723. Such notices by mail or by any other means shall be sent to:
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<PAGE>
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
The Issuer or the Transfer Agent and Registrar shall confirm DTC's
receipt of such telecopy by telephoning the Dividend Department at (212)
709-1270.
5. In the event of a redemption by the Issuer of the Preferred
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Issuer or the Transfer Agent and
Registrar to DTC not less than 30 calendar days prior to such event by a secure
means in the manner set forth in paragraph 4. Such redemption notice shall be
sent to DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190,
and receipt of such notice shall be confirmed by telephoning (516) 227-4070.
Notice by mail or by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the Preferred Securities,
notice specifying the terms of the tender and the Publication Date of such
notice shall be sent by the Issuer or the Transfer Agent and Registrar to DTC by
a secure means and in a timely manner as described in paragraph 4. Notices to
DTC pursuant to this paragraph and notices of other corporate actions (including
mandatory tenders, exchanges and capital changes) shall be sent, unless
notification to another department is expressly provided for herein, by telecopy
to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094 and
receipt of such notice shall be confirmed by telephoning (212) 709-6884, or by
mail or any other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advices sent to DTC shall contain the CUSIP
number or numbers of the Preferred Securities and the accompanying designation
of the Preferred Securities, which, as of the date of this letter, is "FPC
Capital I ____% Cumulative Quarterly Income Preferred Securities, Series A.
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<PAGE>
8. Distribution payments or other cash payments with respect to the
Preferred Securities evidenced by the Global Certificate shall be received by
Cede & Co., as nominee of DTC, or its registered assigns in next day funds on
each payment date (or in accordance with existing arrangements between the
Issuer or the Transfer Agent and Registrar and DTC). Such payments shall be made
payable to the order of Cede & Co., and shall be addressed as follows:
NDFS Redemption Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
9. DTC may by prior written notice direct the Issuer and the Transfer
Agent and Registrar to use any other telecopy number or address of DTC as the
number or address to which notices or payments may be sent.
10. In the event of a conversion, redemption, or any other similar
transaction (e.g., tender made and accepted in response to the Issuer's or the
Transfer Agent and Registrar's invitation) necessitating a reduction in the
aggregate number of Preferred Securities outstanding evidenced by Global
Certificates, DTC, in its discretion: (a) may request the Issuer or the Transfer
Agent and Registrar to issue and countersign a new Global Certificate; or (b)
may make an appropriate notation on the Global Certificate indicating the date
and amount of such reduction.
11. DTC may discontinue its services as a securities depository with
respect to the Preferred Securities at any time by giving at least 90 days'
prior written notice to the Issuer and the Transfer Agent and Registrar (at
which time DTC will confirm with the Issuer or the Transfer Agent and Registrar
the aggregate number of Preferred Securities deposited with it) and discharging
its responsibilities with respect thereto under applicable law. Under such
circumstances, the Issuer may determine to make alternative arrangements for
book-entry settlement for the Preferred Securities, make available one or more
separate global certificates evidencing Preferred Securities to any Participant
having Preferred Securities credited to its DTC account, or issue definitive
Preferred Securities to the beneficial holders thereof, and in any such case,
DTC agrees to cooperate fully with the Issuer and the Transfer Agent and
Registrar, and to return the Global Certificate, duly endorsed for transfer as
directed by the Issuer or the Transfer Agent and Registrar, together with any
other documents of transfer reasonably requested by the Issuer or the Transfer
Agent and Registrar.
12. In the event that the Issuer determines that beneficial owners of
Preferred Securities shall be able to obtain definitive Preferred Securities,
the Issuer or the Transfer Agent and Registrar shall notify DTC of the
availability of certificates. In such event, the Issuer or the Transfer Agent
and Registrar shall issue, transfer and exchange certificates in appropriate
amounts, as required by DTC and others, and DTC agrees to cooperate fully with
the Issuer and the Transfer Agent and Registrar and to return the Global
Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
-4-
<PAGE>
13. This letter may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
Nothing herein shall be deemed to require the Transfer Agent and
Registrar to advance funds on behalf of FPC Capital I.
Very truly yours,
FPC CAPITAL I
(as Issuer)
FIRST CHICAGO DELAWARE INC.,
as Trustee
By:________________________________
Name:_________________________
Title:________________________
(AS TRANSFER AGENT AND REGISTRAR)
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:________________________________
Name:_________________________
Title:________________________
RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By:___________________________________
Authorized Officer
-5-
<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT IN CERTAIN LIMITED CIRCUMSTANCES
SET FORTH IN THE AMENDED AND RESTATED TRUST AGREEMENT
OF FPC CAPITAL I
CERTIFICATE NUMBER NUMBER OF COMMON SECURITIES
C-1
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
FPC CAPITAL I
____% COMMON SECURITIES
(LIQUIDATION AMOUNT $25 PER COMMON SECURITY)
FPC Capital I, a statutory business trust formed under the laws of the
State of Delaware (the "Trust"), hereby certifies that Florida Progress Funding
Corporation (the "Holder") is the registered owner of ( ) common securities of
the Trust representing beneficial interests of the Trust and designated the
____% Common Securities (liquidation amount $25 per Common Security) (the
"Common Securities"). In accordance with Section 5.10 of the Trust Agreement (as
defined below) the Common Securities are not transferable and any attempted
transfer hereof shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust dated
as of ___________ 1, 1999, as the same may be amended from time to time (the
"Trust Agreement") including the designation of the terms of the Common
Securities as set forth therein. The Trust will furnish a copy of the Trust
Agreement to the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
-1-
<PAGE>
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this day of ,1999.
FPC CAPITAL I
PROGRESS RAIL SERVICES CORPORATION,
AS ADMINISTRATIVE TRUSTEE
By:________________________________
Name:_________________________
Title:________________________
-2-
<PAGE>
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of __________ 1, 1999, between Florida Progress
Corporation, a Florida corporation, and FPC Capital I, a Delaware business trust
(the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Notes from Florida Progress Funding Corporation, a
Delaware corporation and a wholly owned subsidiary of Florida Progress
Corporation, and to issue and sell ____% Cumulative Quarterly Income Preferred
Securities, Series A (the "Preferred Securities") with such powers, preferences
and special rights and restrictions as are set forth in the Amended and Restated
Trust Agreement of the Trust dated as of _______ 1, 1999 as the same may be
amended from time to time (the "Trust Agreement");
WHEREAS, Florida Progress Funding Corporation will directly or
indirectly own all of the Common Securities of the Trust and will issue the
Notes;
WHEREAS, Florida Progress Corporation is the guarantor of the Notes.
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase Florida Progress Corporation hereby agrees
shall benefit Florida Progress Corporation and which purchase Florida Progress
Corporation acknowledges will be made in reliance upon the execution and
delivery of this Agreement, Florida Progress Corporation and the Trust hereby
agree as follows:
ARTICLE I
SECTION 1.1. Guarantee by Florida Progress Corporation
Subject to the terms and conditions hereof, Florida Progress
Corporation hereby irrevocably and unconditionally guarantees to each person or
entity to whom the Trust is now or hereafter becomes indebted or liable (the
"Beneficiaries") the full payment, when and as due, of any and all Obligations
(as hereinafter defined) to such Beneficiaries. As used herein, "Obligations"
means any costs, expenses or liabilities of the Trust, other than obligations of
the Trust to pay to holders of any Preferred Securities or other similar
interests in the Trust the amounts due such holders pursuant to the terms of the
Preferred Securities or such other similar interests, as the case may be. This
Agreement is intended to be for the benefit of, and to be enforceable by, all
such Beneficiaries, whether or not such Beneficiaries have received notice
hereof.
-1-
<PAGE>
SECTION 1.2. Term of Agreement.
This Agreement shall terminate and be of no further force and effect
upon the later of (a) the date on which full payment has been made of all
amounts payable to all holders of all the Preferred Securities (whether upon
redemption, liquidation, exchange or otherwise) and (b) the date on which there
are no Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at any
time any holder of Preferred Securities or any Beneficiary must restore payment
of any sums paid under the Preferred Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by Florida Progress Corporation and
The First National Bank of Chicago, as guarantee trustee or under this Agreement
for any reason whatsoever. This Agreement is continuing, irrevocable,
unconditional and absolute.
SECTION 1.3. Waiver of Notice.
Florida Progress Corporation hereby waives notice of acceptance of this
Agreement and of any Obligation to which it applies or may apply, and Florida
Progress Corporation hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 1.4. No Impairment.
The obligations, covenants, agreements and duties of Florida Progress
Corporation under this Agreement shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, Florida Progress Corporation with respect to the happening of
any of the foregoing.
-2-
<PAGE>
SECTION 1.5. Enforcement.
A Beneficiary may enforce this Agreement directly against Florida
Progress Corporation and Florida Progress Corporation waives any right or remedy
to require that any action be brought against the Trust or any other person or
entity before proceeding against Florida Progress Corporation.
SECTION 1.6. Subrogation.
Florida Progress Corporation shall be subrogated to all (if any) rights
of the Trust in respect of any amounts paid to the Beneficiaries by Florida
Progress Corporation under this Agreement; provided, however, that Florida
Progress Corporation shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any rights which it may
acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Agreement, if, at the
time of any such payment, any amounts are due and unpaid under this Agreement.
ARTICLE II
SECTION 2.1. Binding Effect.
All guarantees and agreements contained in this Agreement shall bind
the successors, assigns, receivers, trustees and representatives of Florida
Progress Corporation and shall inure to the benefit of the Beneficiaries.
SECTION 2.2. Amendment.
So long as there remains any Beneficiary or any Preferred Securities of
any series are outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to the holders of the Preferred
Securities.
SECTION 2.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or by registered
or certified mail, addressed as follows (and if so given, shall be deemed given
when mailed or upon receipt of an answer-back, if sent by telex):
FPC Capital I
300 Delaware Avenue, Suite 319
Wilmington, Delaware 19801
Facsimile No.: (302) ___-____
Attention: _________________
-3-
<PAGE>
Florida Progress Corporation
One Progress Plaza
St. Petersburg, Florida 33701
Facsimile No.: (727) 820-5918
Attention: Treasurer
SECTION 2.4. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
THIS AGREEMENT is executed as of the day and year first above written.
FLORIDA PROGRESS CORPORATION
By:________________________________
Name:_________________________
Title:________________________
FPC CAPITAL I
PROGRESS RAIL SERVICES CORPORATION,
AS ADMINISTRATIVE TRUSTEE
By:________________________________
Name:_________________________
Title:________________________
-4-
<PAGE>
EXHIBIT E
IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT--This
Preferred Security is a Global Certificate within the meaning of the Trust
Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the Depository. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than the Depository or its nominee only in the limited
circumstances described in the Trust Agreement and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York) to FPC Capital I or
its agent for registration of transfer, exchange or payment, and any Preferred
Security issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
CERTIFICATE NUMBER NUMBER OF PREFERRED SECURITIES
P
CUSIP NO.
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
FPC CAPITAL I
____% CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES, SERIES A
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
FPC Capital I, a statutory business trust formed under the laws of the
State of Delaware (the "Trust"), hereby certifies that ___________________ (the
"Holder") is the registered owner of the number set forth above of preferred
securities of the Trust representing an undivided beneficial interest in the
assets of the Trust and designated the FPC Capital I ____% Cumulative Quarterly
Income Preferred Securities, Series A (liquidation amount $25 per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in Section 5.4 of the Trust Agreement (as
defined below). The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities are set forth in, and
this certificate and the Preferred Securities represented hereby
-1-
<PAGE>
are issued and shall in all respects be subject to the terms and provisions of,
the Amended and Restated Trust Agreement of the Trust dated as of __________ 1,
1999, as the same may be amended from time to time (the "Trust Agreement")
including the designation of the terms of Preferred Securities as set forth
therein. The Holder is entitled to the benefits of the Guarantee Agreement
entered into by Florida Progress Corporation, a Florida corporation, and The
First National Bank of Chicago, as guarantee trustee, dated as of _________ 1,
1999, (the "Guarantee"), to the extent provided therein. The Trust will furnish
a copy of the Trust Agreement and the Guarantee to the Holder without charge
upon written request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Administrative Trustee of the Trust has executed
this certificate this _____ day of ________ , 1999.
FPC CAPITAL I
PROGRESS RAIL SERVICES CORPORATION,
AS ADMINISTRATIVE TRUSTEE
By:________________________________
Name:_________________________
Title:________________________
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: ________________
Signature:
________________________________________________________________________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
-3-
<PAGE>
EXHIBIT 4.8
JDRP Draft of March 19, 1999
GUARANTEE AGREEMENT
Between
FLORIDA PROGRESS CORPORATION
(as Guarantor)
and
THE FIRST NATIONAL BANK OF CHICAGO
(as Trustee)
dated as of
________ 1, 1999
<PAGE>
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
------------------- -------------------
310(a).................................................... 4.1(a)
310(b).................................................... 4.1(c), 2.8
310(c).................................................... Inapplicable
311(a).................................................... 2.2(b)
311(b).................................................... 2.2(b)
311(c).................................................... Inapplicable
312(a).................................................... 2.2(a)
312(b).................................................... 2.2(b)
313....................................................... 2.3
314(a).................................................... 2.4
314(b).................................................... Inapplicable
314(c).................................................... 2.5
314(d).................................................... Inapplicable
314(e).................................................... 1.1, 2.5, 3.2
314(f).................................................... 2.1, 3.2
315(a).................................................... 3.1(d)
315(b).................................................... 2.7
315(c).................................................... 3.1
315(d).................................................... 3.1(d)
316(a).................................................... 1.1, 2.6, 5.4
316(b).................................................... 5.3
316(c).................................................... 8.2
317(a).................................................... Inapplicable
317(b).................................................... Inapplicable
318(a).................................................... 2.1(b)
318(b).................................................... 2.1
318(c).................................................... 2.1(a)
* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE I. DEFINITIONS................................................ 2
Section 1.1. Definitions............................................ 2
ARTICLE II. TRUST INDENTURE ACT........................................ 4
Section 2.1. Trust Indenture Act; Application....................... 4
Section 2.2. List of Holders........................................ 4
Section 2.3. Reports by the Guarantee Trustee....................... 5
Section 2.4. Periodic Reports to Guarantee Trustee.................. 5
Section 2.5. Evidence of Compliance with Conditions Precedent....... 5
Section 2.6. Events of Default; Waiver.............................. 5
Section 2.7. Event of Default; Notice............................... 5
Section 2.8. Conflicting Interests.................................. 6
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE......... 6
Section 3.1. Powers and Duties of the Guarantee Trustee............. 6
Section 3.2. Certain Rights of Guarantee Trustee.................... 8
Section 3.3. Indemnity.............................................. 9
ARTICLE IV. GUARANTEE TRUSTEE.......................................... 10
Section 4.1. Guarantee Trustee; Eligibility......................... 10
Section 4.2. Appointment, Removal and Resignation of the Guarantee.. 10
Trustee..............................................
ARTICLE V. GUARANTEE.................................................. 11
Section 5.1. Guarantee.............................................. 11
Section 5.2. Waiver of Notice and Demand............................ 11
Section 5.3. Obligations Not Affected............................... 11
Section 5.4. Rights of Holders...................................... 12
Section 5.5. Guarantee of Payment................................... 12
Section 5.6. Subrogation............................................ 13
Section 5.7. Independent Obligations................................ 13
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
ARTICLE VI. COVENANTS AND SUBORDINATION............................... 13
Section 6.1. Subordination.......................................... 13
Section 6.2. Pari Passu Guarantees.................................. 13
ARTICLE VII. TERMINATION............................................... 14
Section 7.1. Termination............................................ 14
ARTICLE VIII. MISCELLANEOUS............................................. 14
Section 8.1. Successors and Assigns................................. 14
Section 8.2. Amendments............................................. 14
Section 8.3. Notices................................................ 14
Section 8.4. Benefit................................................ 16
Section 8.5. Interpretation......................................... 16
Section 8.6. Governing Law.......................................... 16
</TABLE>
iii
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of 1, 1999 is executed and delivered
by FLORIDA PROGRESS CORPORATION, a Florida corporation (the "Guarantor") having
its principal office at One Progress Plaza, St. Petersburg, Florida 33701, and
THE FIRST NATIONAL BANK OF CHICAGO, a national banking association duly
organized and existing under the laws of the United States, as trustee (the
"Guarantee Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Preferred Securities (as defined herein) of FPC Capital I, a
Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as of
1, 1999 (the "Trust Agreement"), among Florida Progress Funding Corporation, a
Delaware corporation (the "Company"), as Depositor, the Property Trustee, the
Administrative Trustee and the Delaware Trustee named therein and the Holders
from time to time of undivided beneficial interests in the assets of the Issuer,
the Issuer is issuing $ aggregate Liquidation Amount (as defined in the
Trust Agreement) of its % Cumulative Quarterly Income Preferred Securities,
Series A, (Liquidation Amount $25 per Preferred Security) (the "Preferred
Securities") representing preferred undivided beneficial interests in the assets
of the Issuer and having the terms set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the Issuer's
Common Securities (as defined below), will be used to purchase the Notes (as
defined in the Trust Agreement) of the Company which will be deposited with The
First National Bank of Chicago, as Property Trustee under the Trust Agreement,
as trust assets; and
WHEREAS, as incentive for the Holders to purchase Preferred Securities the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth herein, to pay to the Holders of the Preferred Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of Preferred
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the
benefit of the Holders from time to time of the Preferred Securities.
<PAGE>
ARTICLE I. DEFINITIONS
Section 1.1. Definitions.
As used in this Guarantee Agreement, the terms set forth below shall, unless
the context otherwise requires, have the following meanings. Capitalized or
otherwise defined terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Trust Agreement as in effect on the date
hereof.
"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; provided, however, that an Affiliate of the
Guarantor shall not be deemed to be an Affiliate of the Issuer. 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.
"Board of Directors" means either the board of directors of the Guarantor or
the Guarantee Trustee, as the case may be, or any committee of that board duly
authorized to act hereunder.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Event of Default" means a default by the Guarantor on any of its payment or
other obligations under this Guarantee Agreement; provided, however, that,
except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default and shall not have cured such
default within 60 days after receipt of such notice.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Preferred Securities, to the extent not paid or
made by or on behalf of the Issuer: (i) any accrued and unpaid Distributions (as
defined in the Trust Agreement) required to be paid on the Preferred Securities,
to the extent the Issuer shall have funds on hand available therefor at such
time, (ii) the redemption price, including all accrued and unpaid Distributions
to the date of redemption (the "Redemption Price"), with respect to any
Preferred Securities called for redemption by the Issuer, to the extent the
Issuer shall have funds on hand available therefor at such time, and (iii) upon
a voluntary or involuntary termination, winding-up or liquidation of the Issuer,
unless Notes are distributed to the Holders, the lesser of (a) the aggregate of
the Liquidation Amount of $25 per Preferred Security plus accrued and unpaid
Distributions on the Preferred Securities to the date of payment, to the extent
the Issuer shall have funds on hand available therefor at such time and (b) the
amount of assets of the Issuer remaining
2
<PAGE>
available for distribution to Holders in liquidation of the Issuer (in either
case, the "Liquidation Distribution").
"Guarantee Trustee" means The First National Bank of Chicago, until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement, and thereafter means each
such Successor Guarantee Trustee.
"Holder" means any holder, as registered on the books and records of the
Issuer, of any Preferred Securities; provided, however, that in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor, the Company, the Guarantee Trustee, or any Affiliate of
the Guarantor, the Company or the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture dated as of
1, 1999, as supplemented and amended among the Company, the Guarantor, as
guarantor and The First National Bank of Chicago, as trustee.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Securities" means, except as provided
by the Trust Indenture Act, a vote by the Holder(s), voting separately as a
class, of more than 50% of the Liquidation Amount of all then outstanding
Preferred Securities issued by the Issuer.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by the Chairman or a Vice Chairman of the Board of Directors of such
Person or the President or a Vice President of such Person, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
such Person, and delivered to the Guarantee Trustee. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has read
the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each officer has made such examination or investigation
as, in such officer's opinion, is necessary to enable such officer 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 officer, such condition
or covenant has been complied with.
3
<PAGE>
"Person" means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee, any Senior
Vice President, any Vice President, any Assistant Vice President, the Secretary,
any Assistant Secretary, the Treasurer, any Assistant Treasurer, any Trust
Officer or Assistant Trust Officer or any other officer of the Corporate Trust
Department of the Guarantee Trustee and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee possessing
the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
ARTICLE II. TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 2.2. List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the Guarantee
Trustee (a) semiannually, on or before January 15 and July 15 of each year, a
list, in such form as the Guarantee Trustee may reasonably require, of the names
and addresses of the Holders ("List of Holders") as of a date not more than 15
days prior to the delivery thereof, and (b) at such other times as the Guarantee
Trustee may request in writing, within 30 days after the receipt by the
Guarantor of any such request, a List of Holders as of a date not more than 15
days prior to the time such list is furnished, in each case to the extent such
information is in the possession or control of the Guarantor and is not
identical to a previously supplied list of Holders or has not otherwise been
received by the Guarantee
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Trustee in its capacity as such. The Guarantee Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under Section
311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
Section 2.3. Reports by the Guarantee Trustee.
Not later than 60 days following May 15 of each year, commencing May 15, 2000,
the Guarantee Trustee shall provide to the Holders such reports as are required
by Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
Section 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the Securities and
Exchange Commission and the Holders such documents, reports and information, if
any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
Section 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
Section 2.6. Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the Preferred Securities
may, by vote, on behalf of the Holders, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Guarantee Agreement, but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent therefrom.
Section 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of an
Event of Default actually known to the Guarantee Trustee, transmit by mail,
first class postage prepaid, to the Holders, notices of all such Events of
Default, unless such defaults have
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been cured or waived before the giving of such notice, provided, that, except in
the case of a default in the payment of a Guarantee Payment, the Guarantee
Trustee shall be protected in withholding such notice if and so long as the
Board of Directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Guarantee Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any Event
of Default unless the Guarantee Trustee shall have received written notice, or a
Responsible Officer charged with the administration of this Guarantee Agreement
shall have obtained written notice, of such Event of Default.
Section 2.8. Conflicting Interests.
The Trust Agreement and the Indenture shall be deemed to be specifically
described in this Guarantee Agreement for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for the
benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except a Holder exercising his or her rights
pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, upon acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default and
after the curing or waiving of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6), the
Guarantee Trustee shall exercise such of the rights and
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powers vested in it by this Guarantee Agreement, and use the same degree of care
and skill in its exercise thereof, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the curing
or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall be
determined solely by the express provisions of this Guarantee Agreement,
and the Guarantee Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this
Guarantee Agreement; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee 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 Guarantee Trustee and
conforming to the requirements of this Guarantee Agreement; but in the
case of any such certificates or opinions that by any provision hereof or
of the Trust Indenture Act are specifically required to be furnished to
the Guarantee Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Guarantee Trustee, unless
it shall be proved that the Guarantee Trustee was negligent in ascertaining
the pertinent facts upon which such judgment was made;
(iii) the Guarantee 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 not less than a Majority in Liquidation Preference
of the Preferred Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee,
or exercising any trust or power conferred upon the Guarantee Trustee under
this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the Guarantee
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if the Guarantee Trustee shall have reasonable grounds
for believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of
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this Guarantee Agreement or adequate indemnity against such risk or liability
is not reasonably assured to it.
Section 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may 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
reasonably believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this Guarantee
Agreement shall be sufficiently evidenced by an Officers' Certificate unless
otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee Agreement, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting to take any action hereunder,
the Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and rely
upon an Officers' Certificate which, upon receipt of such request from the
Guarantee Trustee, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel, and the
written advice or opinion of such legal counsel with respect to legal matters
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted to be taken by it hereunder in good faith
and in accordance with such advice or opinion. Such legal counsel may be legal
counsel to the Guarantor or any of its Affiliates and may be one of its
employees. The Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Guarantee Agreement from
any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Guarantee Agreement at the
request or direction of any Holder, unless such Holder shall have provided to
the Guarantee Trustee such adequate security and indemnity as would satisfy a
reasonable person in the position of the Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses) and liabilities that might
be incurred by it in complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee; provided
that, nothing contained in this Section 3.2(a)(v) shall be taken to relieve
the Guarantee Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this Guarantee
Agreement.
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(vi) The Guarantee 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 Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
agents or attorneys, and the Guarantee Trustee shall not be responsible for
any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
(viii) Whenever in the administration of this Guarantee Agreement the
Guarantee Trustee shall deem it desirable to receive instructions with respect
to enforcing any remedy or right or taking any other action hereunder, the
Guarantee Trustee (A) may request instructions from the Holders, (B) may
refrain from enforcing such remedy or right or taking such other action until
such instructions are received, and (C) shall be protected in acting in
accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
Section 3.3. Indemnity.
The Guarantor agrees to indemnify the Guarantee Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without negligence or
bad faith on the part of the Guarantee Trustee, arising out of or in connection
with the acceptance or administration of this Guarantee Agreement, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The Guarantee Trustee will not claim or exact any lien or charge on
any Guarantee Payments as a result of any amount due to it under this Guarantee
Agreement. The indemnification provided hereunder shall survive the termination
of this Guarantee Agreement and the resignation or removal of the Guarantee
Trustee.
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ARTICLE IV. GUARANTEE TRUSTEE
Section 4.1. Guarantee Trustee: Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor or the Company; and
(ii) be a Person that is eligible pursuant to the Trust Indenture Act to
act as such and has a combined capital and surplus of at least $50,000,000,
and shall be a corporation meeting the requirements of Section 310(a) of the
Trust Indenture Act. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the supervising or
examining authority, then, for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, 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.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so act
under Section 4.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Guarantee
Trustee and Guarantor shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.
Section 4.2. Appointment, Removal and Resignation of the Guarantee Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Guarantee Trustee and delivered to the
Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
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(d) If no Successor Guarantee Trustee shall have been appointed and accepted
appointment as provided in this Section 4.2 within 60 days after delivery to the
Guarantor of an instrument of resignation, the resigning Guarantee Trustee may
petition, at the expense of the Guarantor, any court of competent jurisdiction
for appointment of a Successor Guarantee Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee.
ARTICLE V. GUARANTEE
Section 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by or on behalf of the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim which the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
Section 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the Guarantee Agreement
and of any liability to which it applies or may apply, presentment, demand for
payment, any right to require a proceeding first against the Guarantee Trustee,
Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
Section 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under this
Guarantee Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any portion
of the Distributions (other than an extension of time for payment of
Distributions that results from the extension of any interest payment period on
the Notes as provided in the Indenture), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Preferred Securities;
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(c) any failure, omission, delay or lack of diligence on the part of the
Holders or the Guarantee Trustee to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the terms of the
Preferred Securities, or any action on the part of the Issuer granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or hereby
incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a legal
or equitable discharge or defense of a guarantor, it being the intent of this
Section 5.3 that the obligations of the Guarantor hereunder shall be absolute
and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain the
consent of, the Guarantor with respect to the happening of any of the foregoing.
Section 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement will
be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Preference of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee in respect of this Guarantee Agreement or exercising any
trust or power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) any Holder may institute a legal proceeding directly against
the Guarantor to enforce its rights under this Guarantee Agreement, without
first instituting a legal proceeding against the Guarantee Trustee, the Issuer
or any other Person.
Section 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of performance
or collection. This Guarantee Agreement will not be discharged except by payment
of the Guarantee Payments in full (without duplication of amounts theretofore
paid by the Issuer) or upon distribution of Notes to Holders as provided in the
Trust Agreement.
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Section 5.6. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement and shall have the right to waive
payment by the Issuer pursuant to Section 5.1; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Guarantee Agreement, if, at the time of any
such payment, any amounts are due and unpaid under this Guarantee Agreement. If
any amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
Section 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent of
the obligations of the Issuer with respect to the Preferred Securities and that
the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI. COVENANTS AND SUBORDINATION
Section 6.1. Subordination.
The obligations of the Guarantor under this Guarantee Agreement will
constitute unsecured obligations of the Guarantor and will rank subordinate and
junior in right of payment to all other liabilities of the Guarantor except
those made pari passu or subordinate to such obligations expressly by their
terms.
Section 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement shall rank
pari passu with the obligations of the Guarantor under any similar Guarantee
Agreements issued by the Guarantor on behalf of the holders of preferred
securities issued by any FPC Capital Trust (as defined in the Indenture).
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ARTICLE VII. TERMINATION
Section 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and effect
upon (i) full payment of the Redemption Price of all Preferred Securities, (ii)
the distribution of Notes to the Holders in exchange for all of the Preferred
Securities or (iii) full payment of the amounts payable in accordance with the
Trust Agreement upon liquidation of the Issuer. Notwithstanding the foregoing,
this Guarantee Agreement will continue to be effective or will be reinstated, as
the case may be, if at any time any Holder must restore payment of any sums paid
with respect to Preferred Securities or this Guarantee Agreement.
ARTICLE VIII. MISCELLANEOUS
Section 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement shall bind
the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under Article VIII of the
Indenture and pursuant to which the successor or assignee agrees in writing to
perform the Guarantor's obligations hereunder, the Guarantor shall not assign
its obligations hereunder.
Section 8.2. Amendments.
Except with respect to any changes which do not adversely affect the rights of
the Holders in any material respect (in which case no consent of the Holders
will be required), this Guarantee Agreement may only be amended with the prior
approval of the Holders of a Majority in Liquidation Amount of Securities of all
the outstanding Preferred Securities. The provisions of Article VI of the Trust
Agreement concerning meetings of the Holders shall apply to the giving of such
approval.
Section 8.3. Notices.
Any notice, request or other communication required or permitted to be given
hereunder shall be in writing, duly signed by the party giving such notice, and
delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such other
address, facsimile number or to the attention of such other Person as the
Guarantor may give notice to the Holders:
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Florida Progress Corporation
One Progress Plaza
St. Petersburg, Florida 33701
Facsimile No.: 727-820-5918
Attention: Treasurer
(b) if given to the Issuer, in care of the Guarantee Trustee, at the Issuer's
(and the Guarantee Trustee's) respective addresses set forth below or such other
address as the Guarantee Trustee on behalf of the Issuer may give notice to the
Holders:
FPC Capital I
300 Delaware Avenue
Suite 319
Wilmington, Delaware 19801
Facsimile No.: ___-___-____
Attention: _________
with a copy to:
The First National Bank of Chicago
One First National Plaza
Suite IL 1-0126
Chicago, Illinois 60670-0126
Facsimile No.: 312-407-1708
Attention: Global Corporate Trust Services
(c) if given to the Guarantee Trustee, at the Guarantee Trustee's address set
forth below or such other address as the Guarantee Trustee may give notice to
the Holders:
The First National Bank of Chicago
One First National Plaza
Suite IL 1-0126
Chicago, Illinois 60670-0126
Facsimile No.: 312-407-1708
Attention: Global Corporate Trust Services
(d) if given to any Holder, at the address set forth on the books and records
of the Issuer.
All notices hereunder shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except
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that if a notice or other document is refused delivery or cannot be delivered
because of a changed address of which no notice was given, such notice or other
document shall be deemed to have been delivered on the date of such refusal or
inability to deliver.
Section 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and is not
separately transferable from the Preferred Securities.
Section 8.5. Interpretation.
In this Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined in the
preamble hereto have the respective meanings assigned to them in Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same meaning
throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee Agreement"
are to this Guarantee Agreement as modified, supplemented or amended from time
to time;
(d) all references in this Guarantee Agreement to Articles and Sections are to
Articles and Sections of this Guarantee Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when used
in this Guarantee Agreement unless otherwise defined in this Guarantee Agreement
or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine or neuter genders used herein shall include the
masculine, feminine and neuter genders.
Section 8.6. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT
OF LAW PRINCIPLES THEREOF.
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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.
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
FLORIDA PROGRESS CORPORATION
By:_______________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
as Guarantee Trustee
By:_______________________________
Name:
Title:
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Exhibit 5.1
[LETTERHEAD OF FLORIDA PROGRESS CORPORATION]
March 24, 1999
Florida Progress Corporation
One Progress Plaza
St. Petersburg, FL 33701
Florida Progress Funding Corporation
300 Delaware Avenue, Suite 319
Wilmington, DE 19801
Ladies and Gentlemen:
I have acted as counsel to you, Florida Progress Corporation, a
Florida corporation ("Florida Progress"), and Florida Progress Funding
Corporation, a Delaware corporation ("Funding Corp."), in connection with the
preparation and filing with the Securities and Exchange Commission (the
"Commission") of a Registration Statement on Form S-3 (Reg. No. 333- ), as
it may be amended from time to time (the "Registration Statement"), under the
Securities Act of 1933, as amended (the "Securities Act"), relating to the
proposed issuance and sale from time to time of (i) up to $300,000,000 in
aggregate liquidation amount of Cumulative Quarterly Income Preferred Securities
(the "QUIPS") of FPC Capital I and FPC Capital II, each a business trust formed
under the laws of the State of Delaware (each, a "Trust" and, collectively, the
"Trusts"), (ii) up to $310,000,000 aggregate principal amount of Funding Corp.'s
Junior Subordinated Deferrable Interest Notes (the "QUIDS"), each series of
which will be issued pursuant to a Junior Subordinated Indenture (the
"Indenture") to be entered into among Funding Corp., Florida Progress and The
First National Bank of Chicago, as Trustee (the "Indenture Trustee"), as such
Indenture will be supplemented, in connection with the issuance of each such
series, by a supplemental indenture creating such series (each, a "Supplemental
Indenture" and, collectively, the "Supplemental Indentures"), (iii) Florida
Progress' guarantees with respect to the Trusts' obligation to pay distributions
on the QUIPS (each, a "QUIPS Guarantee" and, collectively, the "QUIPS
Guarantees") each of which QUIPS Guarantees will be issued pursuant to a
guaranty agreement between Florida Progress and the Trustee thereunder (each, a
"Guarantee Agreement" and, collectively, the "Guarantee Agreements"), and (iv)
Florida Progress' guarantees of the QUIDS (each, a "QUIDS Guarantee" and
collectively, the "QUIDS Guarantees"), each of which QUIDS Guarantees will be
issued pursuant to a guaranty contained in the certificates representing the
QUIDS, forms of which are included in the Indenture and related Supplemental
Indenture for the QUIDS. Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to them in the Registration Statement.
I and attorneys under my supervision have examined the originals,
photocopies or conformed copies of all such records of Florida Progress and
Funding Corp. and all such agreements, certificates of public officials,
certificates of officers and representatives of
<PAGE>
Florida Progress and Funding Corp. and such other documents as I have deemed
relevant and necessary as a basis for the opinions hereinafter expressed. In
such examinations, I have assumed the genuineness of all signatures on original
documents and the conformity to the originals of all copies submitted to me as
conformed copies or photocopies. As to various questions of fact material to my
opinion, I have relied upon representations, statements or certificates of
officers and representatives of Florida Progress, Funding Corp. and others.
I am a member of the state bar of Florida and do not express any opinion
herein concerning any law other than the law of the State of Florida and the
federal law of the United States. Based upon and subject to the foregoing, it is
my opinion that:
1. The QUIDS, when (i) issued and duly executed and authenticated in
accordance with the terms of (a) the Indenture and (b) the applicable
Supplemental Indenture creating such series of QUIDS, in the forms filed as
Exhibits 4.1 and 4.2, respectively, to the Registration Statement (and assuming
the due authorization, execution and delivery of the Indenture and the
applicable Supplemental Indenture by each of the parties thereto), and (ii)
delivered against payment therefor, will be legally issued and will constitute
binding obligations of Funding Corp.
2. The QUIPS Guarantees, when issued pursuant to the applicable Guarantee
Agreement, in the form filed as Exhibit 4.8 of the Registration Statement (and
assuming the due authorization, execution and delivery of the applicable
Guarantee Agreement by each of the parties thereto), will be legally issued and
will constitute binding obligations of the Florida Progress.
3. The QUIDS Guarantees, when issued pursuant to the applicable QUIDS
certificate, in the form as contained in the Indenture and Supplemental
Indenture filed as Exhibits 4.1 and 4.2, respectively, to the Registration
Statement (and assuming the due authorization, execution and delivery of the
applicable QUIDS certificate by each of the signatories thereto), will be
legally issued and will constitute binding obligations of Florida Progress.
I consent to the filing of this opinion as an exhibit to the Registration
Statement and to the use of my name under the heading "Legal Matters" in the
Prospectus forming a part of the Registration Statement.
I am delivering this opinion to Florida Progress and Funding Corp., and no
other person may rely upon it without my prior written consent.
Very truly yours,
/s/ KENNETH E. ARMSTRONG
Kenneth E. Armstrong
Vice President and General Counsel
<PAGE>
Exhibit 5.2(a)
[LETTERHEAD OF RICHARDS, LAYTON & FINGER, P.A.]
March 24, 1999
FPC Capital I
300 Delaware Avenue
Suite 319
Wilmington, DE 19801
Re: FPC Capital I
Ladies and Gentlemen:
We have acted as special Delaware counsel for Florida Progress Funding
Corporation, a Delaware corporation (the "Company"), and FPC Capital I, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) the Certificate of Trust of the Trust as filed with the office of
the Secretary of State of the State of Delaware on March 22, 1999;
(b) the Trust Agreement of the Trust (the "Original Trust Agreement"),
dated as of March 22, 1999, among the Company, The First National Bank of
Chicago, a national banking association, as property trustee, (the "Property
Trustee"), and First Chicago Delaware Inc., a Delaware corporation, as Delaware
Trustee, (the "Delaware Trustee");
(c) the Registration Statement (the "Registration Statement") on Form
S-3, including a Prospectus (the "Prospectus"), relating to the ___% Cumulative
Quarterly Income Preferred Securities, Series A (QUIPS/SM/) of the Trust
representing preferred undivided beneficial interests in the assets of the Trust
(each, a "Preferred Security" and collectively, the "Preferred Securities"), to
be filed by the Company and the Trust with the Securities and Exchange
Commission on or about March 24, 1999;
(d) a form of the Amended and Restated Trust Agreement, (the "Trust
Agreement") to be entered into among the Company, as depositor, the Property
Trustee, the Delaware
<PAGE>
FPC Capital I
March 24, 1999
Page 2
Trustee and Progress Rail Services Corporation, an Alabama corporation, as
Administrative Trustee (the "Administrative Trustee")(the Property Trustee, the
Delaware Trustee and the Administrative Trustee are referred to collectively
herein as the "Trustees") and the several Holders (as hereinafter defined) from
time to time, of the undivided beneficial interests in the assets of such Trust
(including Exhibits A, C, D and E thereto) (the "Trust Agreement"), incorporated
by reference into the Registration Statement; and
(e) a Certificate of Good Standing for the Trust, dated March 24, 1999,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate of Trust are in full force and effect and have not been amended,
(ii) except to the extent provided in paragraph 1 below, the due organization or
due formation, as the case may be, and valid existence in good standing of each
party to the documents examined by us under the laws of the jurisdiction
governing its organization or formation, (iii) the legal capacity of natural
persons who are parties to the documents examined by us, (iv) that each of the
parties to the documents examined by us has the power and authority to execute
and deliver, and to perform its obligations under, such documents, (v) the due
authorization, execution and delivery by all parties thereto of all documents
examined by us, (vi) the receipt by each Person to whom a Preferred Security is
to be issued by the Trust (collectively, the "Preferred Security Holders") of a
Preferred Security Certificate for such Preferred Security and the payment for
such Preferred Security, in accordance with the Trust Agreement and the
Registration Statement, and (vii) that the Preferred Securities are issued and
sold to the Preferred Security Holders in accordance with the Trust Agreement
and the Registration Statement. We have not participated in the preparation of
the Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
<PAGE>
FPC Capital I
March 24, 1999
Page 3
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Business Trust Act.
2. The Preferred Securities when issued will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other person for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER, P.A.
<PAGE>
Exhibit 5.2(b)
[LETTERHEAD OF RICHARDS, LAYTON & FINGER, P.A.]
March 24, 1999
FPC Capital II
300 Delaware Avenue
Suite 319
Wilmington, DE 19801
Re: FPC Capital II
Ladies and Gentlemen:
We have acted as special Delaware counsel for Florida Progress Funding
Corporation, a Delaware corporation (the "Company"), and FPC Capital II, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) the Certificate of Trust of the Trust as filed with the office of
the Secretary of State of the State of Delaware on March 22, 1999;
(b) the Trust Agreement of the Trust (the "Original Trust
Agreement"), dated as of March 22, 1999, among the Company, The First National
Bank of Chicago, a national banking association, as property trustee, (the
"Property Trustee"), and First Chicago Delaware Inc., a Delaware corporation, as
Delaware Trustee, (the "Delaware Trustee");
(c) the Registration Statement (the "Registration Statement") on Form
S-3, including a Prospectus (the "Prospectus"), relating to the ____% Cumulative
Quarterly Income Preferred Securities, Series A (QUIPS/SM/) of the Trust
representing preferred undivided beneficial interests in the assets of the Trust
(each, a "Preferred Security" and collectively, the "Preferred Securities"), to
be filed by the Company and the Trust with the Securities and Exchange
Commission on or about March 24, 1999;
(d) a form of the Amended and Restated Trust Agreement (the "Trust
Agreement"), to be entered into among the Company, as depositor, the Property
Trustee, the Delaware
<PAGE>
FPC Capital II
March 24, 1999
Page 2
Trustee and Progress Rail Services Corporation, an Alabama corporation, as
Administrative Trustee (the "Administrative Trustee")(the Property Trustee, the
Delaware Trustee and the Administrative Trustee are referred to collectively
herein as the "Trustees") and the several Holders (as hereinafter defined) from
time to time, of the undivided beneficial interests in the assets of such Trust
(including Exhibits A, C, D and E thereto) (the "Trust Agreement"), incorporated
by reference into the Registration Statement; and
(e) a Certificate of Good Stnding for the Trust, dated March 24, 1999,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate of Trust are in full force and effect and have not been amended,
(ii) except to the extent provided in paragraph 1 below, the due organization or
due formation, as the case may be, and valid existence in good standing of each
party to the documents examined by us under the laws of the jurisdiction
governing its organization or formation, (iii) the legal capacity of natural
persons who are parties to the documents examined by us, (iv) that each of the
parties to the documents examined by us has the power and authority to execute
and deliver, and to perform its obligations under, such documents, (v) the due
authorization, execution and delivery by all parties thereto of all documents
examined by us, (vi) the receipt by each Person to whom a Preferred Security is
to be issued by the Trust (collectively, the "Preferred Security Holders") of a
Preferred Security Certificate for such Preferred Security and the payment for
such Preferred Security, in accordance with the Trust Agreement and the
Registration Statement, and (vii) that the Preferred Securities are issued and
sold to the Preferred Security Holders in accordance with the Trust Agreement
and the Registration Statement. We have not participated in the preparation of
the Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
<PAGE>
FPC Capital II
March 24, 1999
Page 3
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Business Trust Act.
2. The Preferred Securities when issued will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other person for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER, P.A.
<PAGE>
Exhibit 8.1
[LETTERHEAD OF THELEN REID & PRIEST LLP]
New York, New York
March 24, 1999
Florida Progress Corporation
One Progress Plaza, 11th Floor
St. Petersburg, Florida 33701
Florida Progress Funding Corporation
c/o Florida Progress Corporation
One Progress Plaza
St. Petersburg, Florida 33701
FPC Capital I
c/o Florida Progress Corporation
One Progress Plaza
St. Petersburg, Florida 33701
Ladies and Gentlemen:
Reference is made to the prospectus which constitutes part of the
registration statement on Form S-3 ("Registration Statement"), to be filed by
Florida Progress Corporation, Florida Progress Funding Corporation, FPC Capital
I and FPC Capital II with the Securities and Exchange Commission on or about the
date hereof pursuant to the Securities Act of 1933, as amended, as supplemented
by a Prospectus Supplement dated on or about the date hereof (the "Prospectus")
for the registration of, among other things, Cumulative Quarterly Income
Preferred Securities ("QUIPS") of FPC Capital I.
We are of the opinion that the statements set forth under the caption
"United States Federal Income Tax Considerations" in the Prospectus constitute
an accurate description of the material United States federal income tax
considerations that may be relevant to the prospective purchasers of the QUIPS.
This opinion is limited to the facts and law at the date hereof.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to us in the Prospectus under the
caption "United States Federal Income Tax Considerations."
Very truly yours,
THELEN REID & PRIEST LLP
<PAGE>
Exhibit 12.1
FLORIDA PROGRESS CORPORATION
Computation of Ratio of Earnings to Fixed Charges
(in Millions)
<TABLE>
<CAPTION>
December 31,
------------------------------------------
1994 1995 1996 1997 1998
------------------------------------------
<S> <C> <C> <C> <C> <C>
EARNINGS:
Earnings from continuing operations $212.0 $238.9 $250.7 $ 54.3 $281.7
Add:
Preferred dividends 10.1 9.7 5.8 1.5 1.5
Income taxes 110.8 138.1 145.9 66.4 148.6
------------------------------------------
Income before income taxes 332.9 386.7 402.4 122.2 431.8
Fixed charges 148.0 148.2 147.0 170.3 199.7
------------------------------------------
Total earnings $480.9 $534.9 $549.4 $292.5 $631.5
------------------------------------------
FIXED CHARGES:
Gross interest charges $141.5 $139.4 $135.9 $158.7 $187.1
Interest component of rentals 6.5 8.8 11.1 11.6 12.6
------------------------------------------
Total fixed charges $148.0 $148.2 $147.0 $170.3 $199.7
------------------------------------------
RATIO OF EARNINGS TO FIXED CHARGES 3.25 3.61 3.74 1.72 3.16
==========================================
</TABLE>
<PAGE>
Exhibit 12.2
FLORIDA PROGRESS CORPORATION
Computation of Ratio of Earnings to Fixed Charges Plus
Preferred Dividend Requirements (Pre-Income Tax Basis)
(in Millions)
<TABLE>
<CAPTION>
December 31,
-------------------------------------------
1994 1995 1996 1997 1998
-------------------------------------------
<S> <C> <C> <C> <C> <C>
EARNINGS:
- ---------
Earnings from continuing operations $212.0 $238.9 $250.7 $54.3 $281.7
Add:
Preferred dividends 10.1 9.7 5.8 1.5 1.5
Income taxes 110.8 138.1 145.9 66.4 148.6
-------------------------------------------
Income before income taxes 332.9 386.7 402.4 122.2 431.8
Fixed charges 148.0 148.2 147.0 170.3 199.7
-------------------------------------------
Total earnings $480.9 $534.9 $549.4 $292.5 $631.5
-------------------------------------------
FIXED CHARGES:
- --------------
Gross interest charges $141.5 $139.4 $135.9 $158.7 $187.1
Interest component of rentals 6.5 8.8 11.1 11.6 12.6
-------------------------------------------
Total fixed charges 148.0 148.2 147.0 170.3 199.7
-------------------------------------------
Preferred dividends 10.1 9.7 5.8 1.5 1.5
Divide by: (1 - effective tax rate of) 33.3% 35.7% 36.2% 54.4% 34.5%
Preferred dividends (pre-income tax basis) 15.1 15.1 9.1 3.3 2.3
-------------------------------------------
Total fixed charges and preferred dividends $163.1 $163.3 $156.1 $173.6 $202.0
-------------------------------------------
RATIO OF EARNINGS TO FIXED CHARGES
AND PREFERRED DIVIDEND REQUIREMENTS
(PRE-INCOME TAX BASIS) 2.95 3.28 3.52 1.68 3.13
===========================================
</TABLE>
<PAGE>
Exhibit 23.1
To the Shareholders
Florida Progress Corporation:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
KPMG LLP
St. Petersburg, Florida
March 23, 1999
<PAGE>
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED,
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)_____
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
-----------------------------------
FLORIDA PROGRESS CORPORATION
(Exact name of obligors as specified in their trust agreements)
Florida 59-2147112
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
One Progress Plaza
St. Petersburg, Florida 33701
(Address of principal executive offices) (Zip Code)
Guarantee of Junior Subordinated Deferrable Interest
Notes of Florida Progress Funding Corporation
Guarantees of Cumulative Quarterly Income Preferred Securities of FPC Capital I
and FPC Capital II
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C..
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 3-15. Not Applicable.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the trustee now in
effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
<PAGE>
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois, on the 23rd day of March, 1999.
The First National Bank of Chicago,
Trustee
/s/ Steven M. Wagner
By ___________________________________________
Steven M. Wagner
First Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National Bank
of Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 23, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the Junior Subordinated Indenture among
Florida Progress Funding Corporation, Florida Progress Corporation and The First
National Bank of Chicago, as Trustee, and the Guarantee Agreement between
Florida Progress Corporation and The First National Bank of Chicago, as Trustee,
the undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal, State, Territorial, or District authorities
authorized to make such examinations, may be furnished by such authorities to
the Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
/s/ Steven M. Wagner
By: ______________________________________
Steven M. Wagner
First Vice President
4
<PAGE>
EXHIBIT 7
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands
RCFD BIL MIL THOU C400
---- ------------ ----------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1).............. 0081 5,585,982 1.a
b. Interest-bearing balances(2)....................................... 0071 4,623,842 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)......... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)...... 1773 11,181,405 2.b
3. Federal funds sold and securities purchased under agreements to
resell................................................................ 1350 9,853,544 3.
4. Loans and lease financing receivables: RCFD
a. Loans and leases, net of unearned income (from Schedule ----
RC-C).............................................................. 2122 31,155,998 4.a
b. LESS: Allowance for loan and lease losses.......................... 3123 411,963 4.b
c. LESS: Allocated transfer risk reserve.............................. 3128 3,884 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
reserve (item 4.a minus 4.b and 4.c)............................... 2125 30,740,151 4.d
5. Trading assets (from Schedule RD-D)................................... 3545 7,635,778 5.
6. Premises and fixed assets (including capitalized leases).............. 2145 739,925 6.
7. Other real estate owned (from Schedule RC-M).......................... 2150 4,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)........................................ 2130 202,359 8.
9. Customers' liability to this bank on acceptances outstanding.......... 2155 269,516 9.
10. Intangible assets (from Schedule RC-M)................................ 2143 291,665 10.
11. Other assets (from Schedule RC-F)..................................... 2160 3,071,912 11.
12. Total assets (sum of items 1 through 11).............................. 2170 74,200,906 12.
- ------------------
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
Schedule RC-Continued
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits: RCON
a. In domestic offices (sum of totals of columns A and C ----
from Schedule RC-E, part 1)......................................... 2200 22,524,140 13.a
(1) Noninterest-bearing(1).......................................... 6631 10,141,937 13.a1
(2) Interest-bearing................................................ 6636 12,382,203 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II).................................. 2200 19,691,237 13.b
(1) Noninterest bearing............................................. 6631 408,126 13.b1
(2) Interest-bearing................................................ 6636 19,283,111 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase:......................................................... RCFD 2800 9,113,686 14
15. a. Demand notes issued to the U.S. Treasury............................ RCON 2840 120,599 15.a
b. Trading Liabilities (from Schedule RC-D).......................... RCFD 3548 6,797,927 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less.......................... 2332 5,385,355 16.a
b. With original maturity of more than one year....................... A547 327,126 16.b
c. With original maturity of more than three years.................... A548 316,411 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding................ 2920 269,516 18.
19. Subordinated notes and debentures...................................... 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G)................................. 2930 2,137,443 20.
21. Total liabilities (sum of items 13 through 20)......................... 2948 69,083,440 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.......................... 3838 0 23.
24. Common stock........................................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)............... 3839 3,201,435 25.
26. a. Undivided profits and capital reserves.............................. 3632 1,695,446 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities.......................................................... 8434 6,349 26.b
27. Cumulative foreign currency translation adjustments.................... 3284 13,378 27.
28. Total equity capital (sum of items 23 through 27)...................... 3210 5,117,466 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28).................................. 3300 74,200,906 29.
</TABLE>
<TABLE>
<CAPTION>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the bank Number
by independent external auditors as of any date during 1996 . . . . . . . . . .RCFD 6724 .....[N/A ] M.1.
<S> <C> <C> <C>
1 = Independent audit of the bank conducted in 4 = Directors' examination of the bank
accordance with generally accepted auditing performed by other external auditors (may be
standards by a certified public accounting firm required by state chartering authority)
which submits a report on the bank 5 = Review of the bank's financial statements
2 = Independent audit of the bank's parent by external auditors
holding company conducted in accordance with 6 = Compilation of the bank's financial
generally accepted auditing standards by a statements by external auditors
certified public accounting firm which 7 = Other audit procedures (excluding tax preparation work)
submits a report on the consolidated holding 8 = No external audit work
company (but not on the bank separately)
3 = Directors' examination of the bank conducted
in accordance with generally accepted
auditing standards by a certified public
accounting firm (may be required by state
chartering authority)
- -------------------
</TABLE>
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE>
Exhibit 25.2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED,
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)___
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
-----------------------------------
FLORIDA PROGRESS FUNDING CORPORATION
(Exact name of obligors as specified in their trust agreements)
Delaware Pending
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
300 Delaware Avenue, Suite 319
Wilmington, Delaware 19801
(Address of principal executive offices) (Zip Code)
Junior Subordinated Deferrable Interest
Notes
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.; Federal Deposit Insurance
Corporation, Washington, D.C.; The Board of Governors of the Federal
Reserve System, Washington D.C..
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 3-15. Not Applicable.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
<PAGE>
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois, on the 23rd day of March, 1999.
The First National Bank of Chicago,
Trustee
By: /s/ STEVEN M. WAGNER
--------------------------------
Steven M. Wagner
First Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 23, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the Junior Subordinated Indenture among
Florida Progress Funding Corporation, Florida Progress Corporation, and The
First National Bank of Chicago, as Trustee, the undersigned, in accordance with
Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents
that the reports of examinations of the undersigned, made by Federal, State,
Territorial, or District authorities authorized to make such examinations, may
be furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
The First National Bank of Chicago
By:/s/ STEVEN M. WAGNER
------------------------------
Steven M. Wagner
First Vice President
4
<PAGE>
EXHIBIT 7
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands
RCFD BIL MIL THOU C400
---- ------------ ----------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1).............. 0081 5,585,982 1.a
b. Interest-bearing balances(2)....................................... 0071 4,623,842 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)......... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)...... 1773 11,181,405 2.b
3. Federal funds sold and securities purchased under agreements to
resell................................................................ 1350 9,853,544 3.
4. Loans and lease financing receivables: RCFD
a. Loans and leases, net of unearned income (from Schedule ----
RC-C).............................................................. 2122 31,155,998 4.a
b. LESS: Allowance for loan and lease losses.......................... 3123 411,963 4.b
c. LESS: Allocated transfer risk reserve.............................. 3128 3,884 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
reserve (item 4.a minus 4.b and 4.c)............................... 2125 30,740,151 4.d
5. Trading assets (from Schedule RD-D)................................... 3545 7,635,778 5.
6. Premises and fixed assets (including capitalized leases).............. 2145 739,925 6.
7. Other real estate owned (from Schedule RC-M).......................... 2150 4,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)........................................ 2130 202,359 8.
9. Customers' liability to this bank on acceptances outstanding.......... 2155 269,516 9.
10. Intangible assets (from Schedule RC-M)................................ 2143 291,665 10.
11. Other assets (from Schedule RC-F)..................................... 2160 3,071,912 11.
12. Total assets (sum of items 1 through 11).............................. 2170 74,200,906 12.
- ------------------
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
Schedule RC-Continued
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits: RCON
a. In domestic offices (sum of totals of columns A and C ----
from Schedule RC-E, part 1)......................................... 2200 22,524,140 13.a
(1) Noninterest-bearing(1).......................................... 6631 10,141,937 13.a1
(2) Interest-bearing................................................ 6636 12,382,203 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II).................................. 2200 19,691,237 13.b
(1) Noninterest bearing............................................. 6631 408,126 13.b1
(2) Interest-bearing................................................ 6636 19,283,111 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase:......................................................... RCFD 2800 9,113,686 14
15. a. Demand notes issued to the U.S. Treasury............................ RCON 2840 120,599 15.a
b. Trading Liabilities (from Schedule RC-D).......................... RCFD 3548 6,797,927 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less.......................... 2332 5,385,355 16.a
b. With original maturity of more than one year....................... A547 327,126 16.b
c. With original maturity of more than three years.................... A548 316,411 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding................ 2920 269,516 18.
19. Subordinated notes and debentures...................................... 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G)................................. 2930 2,137,443 20.
21. Total liabilities (sum of items 13 through 20)......................... 2948 69,083,440 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.......................... 3838 0 23.
24. Common stock........................................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)............... 3839 3,201,435 25.
26. a. Undivided profits and capital reserves.............................. 3632 1,695,446 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities.......................................................... 8434 6,349 26.b
27. Cumulative foreign currency translation adjustments.................... 3284 13,378 27.
28. Total equity capital (sum of items 23 through 27)...................... 3210 5,117,466 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28).................................. 3300 74,200,906 29.
</TABLE>
<TABLE>
<CAPTION>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the bank Number
by independent external auditors as of any date during 1996 . . . . . . . . . .RCFD 6724 .....[N/A ] M.1.
<S> <C> <C> <C>
1 = Independent audit of the bank conducted in 4 = Directors' examination of the bank
accordance with generally accepted auditing performed by other external auditors (may be
standards by a certified public accounting firm required by state chartering authority)
which submits a report on the bank 5 = Review of the bank's financial statements
2 = Independent audit of the bank's parent by external auditors
holding company conducted in accordance with 6 = Compilation of the bank's financial
generally accepted auditing standards by a statements by external auditors
certified public accounting firm which 7 = Other audit procedures (excluding tax preparation work)
submits a report on the consolidated holding 8 = No external audit work
company (but not on the bank separately)
3 = Directors' examination of the bank conducted
in accordance with generally accepted
auditing standards by a certified public
accounting firm (may be required by state
chartering authority)
- -------------------
</TABLE>
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE>
Exhibit 25.3
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED,
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)___
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
--------------------------
FPC CAPITAL I
(Exact name of obligors as specified in their trust agreements)
Delaware (to be applied for)
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
300 Delaware Avenue, Suite 319
Wilmington, Delaware 19801
(Address of principal executive offices) (Zip Code)
Cumulative Quarterly Income Preferred Securities of FPC Capital I
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C..
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 3-15. Not Applicable.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
<PAGE>
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois, on the 23rd day of March, 1999.
The First National Bank of Chicago,
Trustee
By /s/ Steven M. Wagner
----------------------------------------
Steven M. Wagner
First Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National Bank
of Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 23, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the Amended and Restated Trust Agreement
of FPC Capital I, the undersigned, in accordance with Section 321(b) of the
Trust Indenture Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal, State, Territorial, or
District authorities authorized to make such examinations, may be furnished by
such authorities to the Securities and Exchange Commission upon its request
therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ STEVEN M. WAGNER
------------------------------
Steven M. Wagner
First Vice President
4
<PAGE>
EXHIBIT 7
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands
RCFD BIL MIL THOU C400
---- ------------ ----------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1).............. 0081 5,585,982 1.a
b. Interest-bearing balances(2)....................................... 0071 4,623,842 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)......... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)...... 1773 11,181,405 2.b
3. Federal funds sold and securities purchased under agreements to
resell................................................................ 1350 9,853,544 3.
4. Loans and lease financing receivables: RCFD
a. Loans and leases, net of unearned income (from Schedule ----
RC-C).............................................................. 2122 31,155,998 4.a
b. LESS: Allowance for loan and lease losses.......................... 3123 411,963 4.b
c. LESS: Allocated transfer risk reserve.............................. 3128 3,884 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
reserve (item 4.a minus 4.b and 4.c)............................... 2125 30,740,151 4.d
5. Trading assets (from Schedule RD-D)................................... 3545 7,635,778 5.
6. Premises and fixed assets (including capitalized leases).............. 2145 739,925 6.
7. Other real estate owned (from Schedule RC-M).......................... 2150 4,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)........................................ 2130 202,359 8.
9. Customers' liability to this bank on acceptances outstanding.......... 2155 269,516 9.
10. Intangible assets (from Schedule RC-M)................................ 2143 291,665 10.
11. Other assets (from Schedule RC-F)..................................... 2160 3,071,912 11.
12. Total assets (sum of items 1 through 11).............................. 2170 74,200,906 12.
- ------------------
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
Schedule RC-Continued
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits: RCON
a. In domestic offices (sum of totals of columns A and C ----
from Schedule RC-E, part 1)......................................... 2200 22,524,140 13.a
(1) Noninterest-bearing(1).......................................... 6631 10,141,937 13.a1
(2) Interest-bearing................................................ 6636 12,382,203 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II).................................. 2200 19,691,237 13.b
(1) Noninterest bearing............................................. 6631 408,126 13.b1
(2) Interest-bearing................................................ 6636 19,283,111 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase:......................................................... RCFD 2800 9,113,686 14
15. a. Demand notes issued to the U.S. Treasury............................ RCON 2840 120,599 15.a
b. Trading Liabilities (from Schedule RC-D).......................... RCFD 3548 6,797,927 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less.......................... 2332 5,385,355 16.a
b. With original maturity of more than one year....................... A547 327,126 16.b
c. With original maturity of more than three years.................... A548 316,411 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding................ 2920 269,516 18.
19. Subordinated notes and debentures...................................... 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G)................................. 2930 2,137,443 20.
21. Total liabilities (sum of items 13 through 20)......................... 2948 69,083,440 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.......................... 3838 0 23.
24. Common stock........................................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)............... 3839 3,201,435 25.
26. a. Undivided profits and capital reserves.............................. 3632 1,695,446 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities.......................................................... 8434 6,349 26.b
27. Cumulative foreign currency translation adjustments.................... 3284 13,378 27.
28. Total equity capital (sum of items 23 through 27)...................... 3210 5,117,466 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28).................................. 3300 74,200,906 29.
</TABLE>
<TABLE>
<CAPTION>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the bank Number
by independent external auditors as of any date during 1996 . . . . . . . . . .RCFD 6724 .....[N/A ] M.1.
<S> <C> <C> <C>
1 = Independent audit of the bank conducted in 4 = Directors' examination of the bank
accordance with generally accepted auditing performed by other external auditors (may be
standards by a certified public accounting firm required by state chartering authority)
which submits a report on the bank 5 = Review of the bank's financial statements
2 = Independent audit of the bank's parent by external auditors
holding company conducted in accordance with 6 = Compilation of the bank's financial
generally accepted auditing standards by a statements by external auditors
certified public accounting firm which 7 = Other audit procedures (excluding tax preparation work)
submits a report on the consolidated holding 8 = No external audit work
company (but not on the bank separately)
3 = Directors' examination of the bank conducted
in accordance with generally accepted
auditing standards by a certified public
accounting firm (may be required by state
chartering authority)
- -------------------
</TABLE>
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE>
Exhibit 25.4
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED,
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----
-------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
-----------------------------------
FPC CAPITAL II
(Exact name of obligors as specified in their trust agreements)
Delaware (to be applied for)
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
300 Delaware Avenue, Suite 319
Wilmington, Delaware 19801
(Address of principal executive offices) (Zip Code)
Cumulative Quarterly Income Preferred Securities of FPC Capital II
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following
--------------------
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C..
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
------------------------------
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 3-15. Not Applicable.
---------------
Item 16. List of exhibits. List below all exhibits filed as a
-----------------
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
<PAGE>
7. A copy of the latest report of condition of
the trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois, on the 23rd day of March, 1999.
The First National Bank of Chicago,
Trustee
By ___________________________________________
Steven M. Wagner
First Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 23, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the Amended and Restated Trust Agreement
to be hereafter entered into of FPC Capital II, the undersigned, in accordance
with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby
consents that the reports of examinations of the undersigned, made by Federal,
State, Territorial, or District authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By:/s/ STEVEN M. WAGNER
------------------------
Steven M. Wagner
First Vice President
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EXHIBIT 7
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Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
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Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
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Dollar Amounts in thousands
RCFD BIL MIL THOU C400
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ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1).............. 0081 5,585,982 1.a
b. Interest-bearing balances(2)....................................... 0071 4,623,842 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)......... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)...... 1773 11,181,405 2.b
3. Federal funds sold and securities purchased under agreements to
resell................................................................ 1350 9,853,544 3.
4. Loans and lease financing receivables: RCFD
a. Loans and leases, net of unearned income (from Schedule ----
RC-C).............................................................. 2122 31,155,998 4.a
b. LESS: Allowance for loan and lease losses.......................... 3123 411,963 4.b
c. LESS: Allocated transfer risk reserve.............................. 3128 3,884 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
reserve (item 4.a minus 4.b and 4.c)............................... 2125 30,740,151 4.d
5. Trading assets (from Schedule RD-D)................................... 3545 7,635,778 5.
6. Premises and fixed assets (including capitalized leases).............. 2145 739,925 6.
7. Other real estate owned (from Schedule RC-M).......................... 2150 4,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)........................................ 2130 202,359 8.
9. Customers' liability to this bank on acceptances outstanding.......... 2155 269,516 9.
10. Intangible assets (from Schedule RC-M)................................ 2143 291,665 10.
11. Other assets (from Schedule RC-F)..................................... 2160 3,071,912 11.
12. Total assets (sum of items 1 through 11).............................. 2170 74,200,906 12.
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(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
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Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
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Schedule RC-Continued
Dollar Amounts in
Thousands
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LIABILITIES
13. Deposits: RCON
a. In domestic offices (sum of totals of columns A and C ----
from Schedule RC-E, part 1)......................................... 2200 22,524,140 13.a
(1) Noninterest-bearing(1).......................................... 6631 10,141,937 13.a1
(2) Interest-bearing................................................ 6636 12,382,203 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II).................................. 2200 19,691,237 13.b
(1) Noninterest bearing............................................. 6631 408,126 13.b1
(2) Interest-bearing................................................ 6636 19,283,111 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase:......................................................... RCFD 2800 9,113,686 14
15. a. Demand notes issued to the U.S. Treasury............................ RCON 2840 120,599 15.a
b. Trading Liabilities (from Schedule RC-D).......................... RCFD 3548 6,797,927 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less.......................... 2332 5,385,355 16.a
b. With original maturity of more than one year....................... A547 327,126 16.b
c. With original maturity of more than three years.................... A548 316,411 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding................ 2920 269,516 18.
19. Subordinated notes and debentures...................................... 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G)................................. 2930 2,137,443 20.
21. Total liabilities (sum of items 13 through 20)......................... 2948 69,083,440 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.......................... 3838 0 23.
24. Common stock........................................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)............... 3839 3,201,435 25.
26. a. Undivided profits and capital reserves.............................. 3632 1,695,446 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities.......................................................... 8434 6,349 26.b
27. Cumulative foreign currency translation adjustments.................... 3284 13,378 27.
28. Total equity capital (sum of items 23 through 27)...................... 3210 5,117,466 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28).................................. 3300 74,200,906 29.
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Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the bank Number
by independent external auditors as of any date during 1996 . . . . . . . . . .RCFD 6724 .....[N/A ] M.1.
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1 = Independent audit of the bank conducted in 4 = Directors' examination of the bank
accordance with generally accepted auditing performed by other external auditors (may be
standards by a certified public accounting firm required by state chartering authority)
which submits a report on the bank 5 = Review of the bank's financial statements
2 = Independent audit of the bank's parent by external auditors
holding company conducted in accordance with 6 = Compilation of the bank's financial
generally accepted auditing standards by a statements by external auditors
certified public accounting firm which 7 = Other audit procedures (excluding tax preparation work)
submits a report on the consolidated holding 8 = No external audit work
company (but not on the bank separately)
3 = Directors' examination of the bank conducted
in accordance with generally accepted
auditing standards by a certified public
accounting firm (may be required by state
chartering authority)
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(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
