Exhibit 1
DISTRIBUTION AGREEMENT
U.S. $300,000,000
Carolina Power & Light Company
Medium-Term Notes, Series D
June 30, 2000
Chase Securities Inc.
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First Union Securities, Inc.
One First Union Center
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▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
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▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
World Financial Center
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▇.▇. ▇▇▇▇▇▇ Securities Inc.
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▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
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Dear Sirs:
Carolina Power & Light Company, a North Carolina corporation
(the "Company"), confirms its agreement with each of you (individually, the
"Agent" and
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collectively, the "Agents") with respect to the issuance and sale by the Company
of up to an aggregate of $300,000,000, or the U.S. dollar equivalent in certain
specified foreign currencies or currency units, in gross proceeds of its
Medium-Term Notes, Series D (the "Notes"). The Notes are to be issued from time
to time pursuant to an Indenture for Debt Securities, dated as of October 28,
1999 (as it may be supplemented or amended from time to time, the "Indenture"),
between the Company and The Chase Manhattan Bank, as trustee (the "Trustee").
The Notes shall have the maturity ranges, applicable interest
rates or interest rate formulas, specified currency, issue price, redemption and
repayment provisions and other terms set forth in the Prospectus referred to
below in Section 1(a) as it may be amended or supplemented from time to time,
including any supplement providing for the interest rate, maturity and other
terms of any Note (a "Pricing Supplement"). The Notes will be issued, and the
terms thereof established, from time to time, by the Company in accordance with
the Indenture and the Procedures referred to below. This Agreement shall only
apply to sales of the Notes and not to sales of any other securities or
evidences of indebtedness of the Company and only on the specific terms set
forth herein.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell its Notes directly on its own
behalf, the Company hereby (i) appoints each of the Agents as the agent of the
Company for the purpose of soliciting and receiving offers to purchase Notes
from the Company and (ii) agrees that whenever the Company determines to sell
Notes directly to an Agent as principal it will enter into a separate agreement
with such Agent (each a "Purchase Agreement"). Each such Purchase Agreement,
whether oral (and confirmed in writing, which may be by facsimile transmission)
or in writing, shall be with respect to such information (as applicable) as
specified in Exhibit C hereto, relating to such sale in accordance with Section
2(e) hereof.
1. Representations and Warranties. The Company represents and
warrants to each Agent as of the date hereof, as of the date of each acceptance
by the Company of an offer for the purchase of the Notes (whether through such
Agent as agent or to such Agent as principal), as of the date of each delivery
of Notes (whether through such Agent as agent or to such Agent as principal), as
of the Closing Date (defined herein), and as of the date of any amendment or
supplement to the Registration Statement or Prospectus (each defined herein)
(each of the times referenced above is referred to herein as a "Representation
Date") as follows:
(a) A registration statement on Form S-3 with respect to the
Notes has been prepared and filed by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Securities
Act"), and the rules and regulations (the "Rules and Regulations") of
the Securities and Exchange Commission (the "Commission") thereunder,
and has become effective under the Securities Act. The Indenture has
been qualified under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"). As used in this Agreement, (i) "Registration
Statement" means such registration statement (together with all
documents incorporated therein by reference) when it became
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effective under the Securities Act, and as from time to time amended or
supplemented thereafter (if any post-effective amendment to such
registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the time the most recent such
amendment has been declared effective by the Commission); (ii) "Basic
Prospectus" means the prospectus (including all documents incorporated
therein by reference) included in the Registration Statement; and (iii)
"Prospectus" means the Basic Prospectus (together with all documents
incorporated therein by reference) and any amendments or supplements
thereto (including the applicable Pricing Supplement) relating to the
Notes, as filed with the Commission pursuant to paragraph (b) of Rule
424 of the Rules and Regulations. The Commission has not issued any
stop order preventing or suspending the use of the Prospectus. Any
reference in this Agreement to amending or supplementing the
Registration Statement or Prospectus shall be deemed to include the
filing of materials incorporated by reference therein after the Closing
Date, and any reference in this Agreement to any amendment or
supplement to the Registration Statement or Prospectus shall be deemed
to include any such materials incorporated by reference therein after
the Closing Date.
(b) As of each Representation Date, the Registration Statement
and each Prospectus complied, and the Registration Statement and each
Prospectus will comply, in all respects with the requirements of the
Securities Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the Trust Indenture Act, and the rules and regulations
of the Commission under such Acts; the Indenture, including any
amendments and supplements thereto, is duly qualified under the Trust
Indenture Act and conforms with the requirements of the Trust Indenture
Act and the rules and regulations of the Commission thereunder; and the
Registration Statement and each Prospectus do not, and did not and will
not as of the applicable Representation Date, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the Company makes no
representation or warranty as to (i) information contained in or
omitted from the Registration Statement or any Prospectus in reliance
upon and in conformity with written information furnished to the
Company by the Agents specifically for inclusion therein or (ii) to any
statements in or omissions from the statement of eligibility and
qualification on Form T-1 (the "Form T-1") of the Trustee under the
Trust Indenture Act.
(c) The documents incorporated by reference in the
Registration Statement and each Prospectus (the "Exchange Act
Reports"), when they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the requirements
of the Exchange Act and the rules and regulations of the Commission
thereunder and, when read together with the other information in the
Registration Statement and the Prospectus, at the date hereof, at the
date of the Registration Statement and the Prospectus, at each
Representation Date and at the date when such documents were or
hereafter are filed with the Commission do not, did not and will not
contain an
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untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(d) The consolidated financial statements incorporated by
reference in the Registration Statement present fairly the financial
condition and operations of the Company and its subsidiaries at the
respective dates or for the respective periods to which they apply;
such financial statements have been prepared in each case in accordance
with generally accepted accounting principles consistently applied
throughout the periods involved; and Deloitte & Touche LLP, who have
audited certain of the financial statements, are independent public or
independent certified public accountants as required by the Securities
Act or the Exchange Act and the rules and regulations of the Commission
thereunder.
(e) Except as reflected in, or contemplated by, the
Registration Statement and the Prospectus, since the respective dates
as of which information is given in the Registration Statement and
Prospectus there has not been any material adverse change in the
business, property, financial condition, earnings, business affairs, or
business prospects of the Company and its subsidiaries considered as a
whole. The Company has no material contingent obligation which is not
disclosed in the Registration Statement and Prospectus.
(f) The consummation of the transactions contemplated herein
and in any Purchase Agreement (as hereinafter defined) and the
fulfillment of the terms hereof and thereof on the part of the Company
to be fulfilled have been duly authorized by all necessary corporate
action of the Company in accordance with the provisions of its Articles
of Incorporation (the "Articles"), by-laws and applicable law.
(g) The consummation of the transactions contemplated herein
and in any Purchase Agreement and the fulfillment of the terms hereof
and thereof will not result in a breach of any of the terms or
provisions of, or constitute a default under, the Articles, the
Company's by-laws, applicable law or any indenture, mortgage, deed of
trust or other agreement or instrument to which the Company is now a
party or any judgment, order, writ or decree of any government or
governmental authority or agency or court having jurisdiction over the
Company or any of its subsidiaries or any of their assets, properties
or operations.
(h) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of North Carolina with corporate power and authority to own, lease and
operate its properties and to conduct its business as contemplated
under this Agreement and the other agreements to which it is a party;
and the Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of
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the ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material adverse
effect on the financial condition, earnings, business affairs or
business prospects of the Company and its subsidiaries considered as a
whole.
(i) The outstanding capital stock of the Company has been duly
authorized and validly issued and is fully paid and non-assessable and
is not subject to preemptive or other similar rights.
(j) The Company does not have any significant subsidiaries as
defined in Rule 1-02 of Regulation S-X promulgated under the Securities
Act.
(k) Each of this Agreement and any applicable Purchase
Agreement (as hereinafter defined) has been duly authorized, executed
and delivered by the Company.
(l) The Indenture (A) has been duly authorized, executed and
delivered by the Company, and, assuming due authorization, execution
and delivery by the Trustee, constitutes a valid and legally binding
obligation of the Company, enforceable against the Company in
accordance with its terms, subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or similar
laws affecting creditor's rights generally, (ii) general principles of
equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity) and (iii) the effect on enforceability
of federal or state law limiting, delaying or prohibiting the making of
payments outside the United States; and (B) conforms in all material
respects to the description thereof in the Prospectus.
(m) The Notes have been duly authorized by the Company and
when issued and authenticated in the manner provided for in the
Indenture and delivered against payment of the consideration therefor
specified in the Officer's Certificate, will constitute valid and
legally binding obligations of the Company, entitled to the benefits of
the Indenture enforceable against the Company in accordance with their
terms, subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transferor or similar laws
affecting creditors' rights generally, (ii) general principles of
equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity) and (iii) the effect on enforceability
of federal or state law limiting, delaying or prohibiting the making of
payments outside the United States. The Notes will conform in all
material respects to the description thereof in the Prospectus, and
each registered holder of Notes is entitled to the benefits of the
Indenture.
(n) The Company is not and, after giving effect to the
offering and sale of the Notes and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended.
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(o) Except as described in or contemplated by the Prospectus,
there are no pending actions, suits or proceedings against or affecting
the Company or any of its subsidiaries or properties which are likely
in the aggregate to result in any material adverse change in the
business, property, financial condition, earnings, business affairs, or
business prospects of the Company and its subsidiaries considered as a
whole or which are likely in the aggregate to affect materially and
adversely the consummation of this Agreement, any Purchase Agreement,
the Indenture, the Notes or the transactions contemplated herein or
therein.
(p) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder or under any
Purchase Agreement in connection with the offering, issuance or sale of
the Notes hereunder or thereunder or the consummation of the
transactions contemplated herein or therein or for the due execution,
delivery or performance of the Indenture, the Notes, this Agreement and
any Purchase Agreement by the Company, except such as have been already
obtained or as may be required under the state securities laws in
connection with the purchase and distribution of Notes by the Agents.
2. Solicitations as Agent; Purchases as Principal. (a) Subject
to the terms and conditions stated herein, the Company hereby appoints each
Agent as the agent of the Company for the purpose of soliciting or receiving
offers to purchase the Notes from the Company by others. On the basis of the
representations and warranties contained herein, but subject to the terms and
conditions herein set forth, each Agent agrees, as the agent of the Company, to
use its reasonable efforts to solicit offers to purchase the Notes upon the
terms and conditions set forth in the Prospectus. The Company reserves the right
to accept offers to purchase Notes through an agent other than the Agents,
without obtaining the consent of the Agents, provided that any such additional
agents shall agree to be bound by and subject to all applicable provisions of
this Agreement in respect of such issue and purchase of Notes (including the
commission schedule set forth in Exhibit A hereto). Except as contemplated in
the preceding sentence or as otherwise provided herein, so long as this
Agreement shall remain in effect with respect to any Agent, the Company shall
not, without the consent of each such Agent, solicit or accept offers to
purchase Notes otherwise than through one of the Agents, provided, however, the
Company expressly reserves the right to sell Notes directly to investors. Each
Agent may also purchase Notes from the Company as principal for purposes of
resale, as more fully described in paragraph (e) of this Section.
(b) The Company reserves the right, in its sole discretion, to
suspend solicitation of offers to purchase the Notes commencing at any time for
any period of time or indefinitely. Upon receipt of at least one business day's
prior written notice from the Company, the Agents will forthwith suspend
solicitation of offers to purchase Notes from the Company until such time as the
Company has advised the Agents that such solicitation may be resumed.
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For the purpose of the foregoing sentence, "business day" shall mean any day
which is not a Saturday or Sunday and which is not a day on which (i) banking
institutions are generally authorized or obligated by law to close in The City
of New York and (ii) The New York Stock Exchange, Inc. is closed for trading.
Upon receipt of notice from the Company as contemplated by
Section 3(c) hereof, each Agent shall suspend its solicitation of offers to
purchase Notes until such time as the Company shall have furnished it with an
amendment or supplement to the Registration Statement or the Prospectus, as the
case may be, contemplated by Section 3(c) and shall have advised such Agent that
such solicitation may be resumed.
(c) Promptly upon the closing of the sale of any Notes sold by
the Company as a result of a solicitation made by or offer to purchase received
by an Agent, unless the Company and such Agent shall agree otherwise, the
Company agrees to pay such Agent a commission, in the form of a discount in
accordance with the schedule set forth in Exhibit A hereto.
(d) The Agents are authorized to solicit offers to purchase
the Notes only in denominations as are specified in the Prospectus at a purchase
price as shall be specified by the Company. Each Agent shall communicate to the
Company, orally or in writing, each reasonable offer to purchase Notes received
by it as an Agent. The Company shall have the sole right to accept offers to
purchase the Notes and may reject any such offer in whole or in part. Each Agent
shall have the right, in its discretion reasonably exercised without advising
the Company, to reject any offer to purchase the Notes received by it, in whole
or in part, and any such rejection shall not be deemed a breach of its agreement
contained herein.
No Note which the Company has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or sold by the
Company, until such Note shall have been delivered to the purchaser thereof
against payment by such purchaser.
(e) Each sale of Notes to any Agent as principal, for resale
to one or more investors or to another broker-dealer (acting as principal for
purposes of resale), shall be made in accordance with the terms of this
Agreement and a Purchase Agreement whether oral (and confirmed in writing by
such Agent to the Company, which may be by facsimile transmission) or in
writing, which will provide for the sale of such Notes to, and the purchase
thereof by, such Agent. A Purchase Agreement may also specify certain provisions
relating to the reoffering of such Notes by such Agent. The commitment of any
Agent to purchase Notes from the Company as principal shall be deemed to have
been made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions herein set
forth. Each Purchase Agreement shall specify the principal amount and terms of
the Notes to be purchased by an Agent, the time and date (each such time and
date being referred to herein as a "Time of Delivery") and place of delivery of
and payment for such Notes and such other information (as applicable) as is set
forth in Exhibit C hereto. The Company agrees that if any
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Agent purchases Notes as principal for resale such Agent shall receive such
compensation, in the form of a discount or otherwise, as shall be indicated in
the applicable Purchase Agreement or, if no compensation is indicated therein, a
commission in accordance with Exhibit A hereto. Any Agent may utilize a selling
or dealer group in connection with the resale of such Notes. In addition, any
Agent may offer the Notes they have purchased as principal to other dealers. Any
Agent may sell Notes to any dealer at a discount and, unless otherwise specified
in the applicable Pricing Supplement, such discount allowed to any dealer will
not be in excess of the discount to be received by such Agent from the Company.
Such Purchase Agreement shall also specify any requirements for delivery of
opinions of counsel, accountant's letters and officers' certificates pursuant to
Section 4 hereof.
(f) Administrative procedures respecting the sale of Notes
(the "Procedures") are set forth in Exhibit B hereto and may be amended in
writing from time to time by the Agents and the Company. Each Agent and the
Company agree to perform the respective duties and obligations specifically
provided to be performed by each of them herein and in the Procedures. The
Procedures shall apply to all transactions contemplated hereunder including
sales of Notes to any Agent as principal pursuant to a Purchase Agreement,
unless otherwise set forth in such Purchase Agreement.
(g) The documents required to be delivered by Section 4 hereof
shall be delivered at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, not later than 10:00 A.M., New York City time,
on the date of this Agreement or at such later time as may be mutually agreed
upon by the Company and the Agents, which in no event shall be later than the
time at which the Agents commence solicitation of offers to purchase Notes
hereunder (the "Closing Date").
3. Covenants of the Company. The Company covenants and agrees
with each Agent as follows:
(a) To furnish promptly to the Agents and to their counsel a
signed copy of the Registration Statement as originally filed and each amendment
or supplement thereto.
(b) To deliver promptly to the Agents, and in such number as
they may reasonably request, each of the following documents: (i) conformed
copies of the Registration Statement (excluding exhibits other than the
computation of the ratio of earnings to fixed charges, the Indenture, this
Agreement and such other exhibits that the Agents may request), (ii) the Basic
Prospectus, (iii) each Prospectus and (iv) any documents incorporated by
reference in the Prospectus.
(c) If, during the term of this Agreement, any event occurs or
condition exists as a result of which the Prospectus would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, not misleading, or if it is necessary at any time
to amend any Prospectus to comply with the Securities Act, to notify the
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Agents promptly, in writing, to suspend solicitation of purchases of the Notes;
and if the Company shall decide to amend or supplement the Registration
Statement or any Prospectus, to promptly advise the Agents by telephone (with
confirmation in writing) and to promptly, in writing, prepare and, subject to
Section 3(e) hereof, file with the Commission an amendment or supplement which
will correct such statement or omission or an amendment which will effect such
compliance; provided, however, that if during the period referred to above any
Agent shall own any Notes which it has purchased from the Company as principal
with the intention of reselling them, the Company shall promptly prepare and,
subject to 3(e) hereof, timely file with the Commission any amendment or
supplement to the Registration Statement or any Prospectus that may, in the
judgment of the Company or the Agents, be required by the Securities Act or
requested by the Commission.
(d) To timely file with the Commission, during the term of
this Agreement, all documents (and any amendments to previously filed documents)
required to be filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act.
(e) Prior to filing with the Commission, during the term of
this Agreement, (i) any amendment or supplement to the Registration Statement,
or (ii) any amendment or supplement to any Prospectus, not to file any such
document to which the Agents shall reasonably object after having been given
reasonable notice of the proposed filing thereof; provided, however, that (i)
the foregoing requirements shall not apply to any of the Company's periodic
filings with the Commission required to be filed pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, and (ii) any supplement to the
Prospectus that merely sets forth the terms or a description of particular Notes
shall only be reviewed and approved by the Agent or Agents offering such Notes.
(f) To advise the Agents immediately (i) when any
post-effective amendment to the Registration Statement relating to or covering
the Notes becomes effective, (ii) of any request or proposed request by the
Commission for an amendment or supplement to the Registration Statement, to any
Prospectus, to any document incorporated by reference in any of the foregoing or
for any additional information and the Company will afford the Agents a
reasonable opportunity to comment on any such proposed amendment or supplement,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any part thereof or any order
directed to any Prospectus or any document incorporated therein by reference or
the initiation or threat of any stop order proceeding or of any challenge to the
accuracy or adequacy of any document incorporated by reference in any
Prospectus, (iv) of receipt by the Company of any notification with respect to
the suspension of the qualification of the Notes for sale in any jurisdiction or
the initiation or threat of any proceeding for that purpose, (v) of any
downgrading in the rating of the Notes or any other debt securities of the
Company, or any proposal to downgrade the rating of the Notes or any other debt
securities of the Company, by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) of the Rules and
Regulations), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the
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Company (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading of such rating) as soon
as the Company learns of any such downgrading, proposal to downgrade or public
announcement and (vi) of the happening of any event which makes untrue any
statement of a material fact made in the Registration Statement or any
Prospectus or which requires the making of a change in the Registration
Statement or any Prospectus in order to make any material statement therein not
misleading.
(g) If, during the term of this Agreement, the Commission
shall issue a stop order suspending the effectiveness of the Registration
Statement, and (i) any Agent shall own any Notes purchased by it from the
Company as principal or (ii) an offer to purchase any of the Notes has been
accepted by the Company but the time of delivery to the purchaser or his agent
of such Notes has not occurred, to make every reasonable effort to obtain the
lifting of that order at the earliest possible time.
(h) As soon as practicable, after the date of each acceptance
by the Company of an offer to purchase Notes hereunder, to make generally
available to its security holders an earnings statement covering a period of at
least 12 months beginning after the later of (i) the effective date of the
Registration Statement, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become effective prior
to the date of such acceptance and (iii) the date of the Company's most recent
Annual Report on Form 10-K filed with the Commission prior to the date of such
acceptance which will satisfy the provisions of Section 11(a) of the Securities
Act (including, at the option of the Company, Rule 158 of the Rules and
Regulations under the Securities Act);
(i) So long as any of the Notes are outstanding, to furnish to
the Agents, not later than the time the Company makes the same available to
others, copies of all public reports or releases and all reports and financial
statements furnished by the Company to any securities exchange on which the
Notes are listed pursuant to requirements of or agreements with such exchange or
to the Commission pursuant to the Exchange Act or any rule or regulation of the
Commission thereunder.
(j) To endeavor, in cooperation with the Agents, to qualify
the Notes for offering and sale under the securities laws of such jurisdictions
as the Agents may designate, and to maintain such qualifications in effect for
as long as may be required for the distribution of the Notes; and to file such
statements and reports as may be required by the laws of each jurisdiction in
which the Notes have been qualified as above provided; provided, however, that
the Company shall not be required to qualify as a foreign corporation or dealer
in securities, or to file any general consents to service of process under the
laws of any jurisdiction.
(k) Between the date of a Purchase Agreement and the date of
delivery of the Notes with respect thereto, the Company will not offer or sell,
or enter into any agreement to sell, any of its debt securities, other than
borrowings under the Company's revolving credit agreements and lines of credit
and issuances of its commercial paper with maturities of up to
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270 days and extendible commercial notes with maturities of up to 390 days
without the consent of the Agent who is a party to such Purchase Agreement.
(l) To prepare, with respect to any Notes to be sold through
or to the Agents pursuant to this Agreement, a Pricing Supplement with respect
to such Notes in a form previously approved by the Agents and to file such
Pricing Supplement pursuant to Rule 424 under the Securities Act with the
Commission within the time period specified within the applicable paragraph of
such Rule.
(m) To apply the net proceeds from the sale of the Notes as
set forth in the Prospectus under the heading "Use of Proceeds."
4. Conditions of Obligations. The obligation of the Agents, as
agents of the Company, under this Agreement to solicit offers to purchase the
Notes, the obligation of any person who has agreed to purchase Notes to make
payment for and take delivery of Notes, and the obligation of any Agent to
purchase Notes pursuant to any Purchase Agreement, is subject to the accuracy,
on each Representation Date, of the representations and warranties of the
Company contained herein, to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Prospectus as amended or supplemented (including the
Pricing Supplement) with respect to such Notes shall have been filed with the
Commission pursuant to Rule 424(b) under the Securities Act within the
applicable time period prescribed for such filing by the Rules and Regulations.
The Registration Statement has become effective under the Securities Act and no
stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued, and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration Statement
or the Prospectus or otherwise shall have been complied with to the reasonable
satisfaction of the Agents.
(b) None of the Agents shall have discovered and disclosed to
the Company on or prior to the Closing Date that the Registration Statement or
any Prospectus contains an untrue statement of a fact which, in the opinion of
counsel for the Agents, is material or omits to state any fact which, in the
opinion of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of each of this Agreement, any
applicable Purchase Agreement, the Indenture and the Notes (the "Transaction
Documents") and the Registration Statement, each Prospectus, and all other legal
matters relating to the Transaction Documents and the transactions contemplated
thereby, shall be reasonably satisfactory to the Agents, and the
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Company shall have furnished to the Agents all documents and information that
they or their counsel may reasonably request to enable them to pass upon such
matters.
(d) At the Closing Date, there shall have been issued and on
each Representation Date there shall be in full force and effect orders of the
North Carolina Utilities Commission and the South Carolina Public Service
Commission authorizing the issuance and sale of the Notes, none of which shall
contain any provision unacceptable to the Agents by reason of its being
materially adverse to the Company.
(e) Hunton & ▇▇▇▇▇▇▇▇ shall have furnished to the Agents their
written opinion, as counsel to the Company, addressed to the Agents and dated
the Closing Date, in form and substance reasonably satisfactory to the Agents,
substantially to the effect set forth in Annex I hereto.
(f) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Senior Vice President and
Corporate Secretary of the Company shall have furnished to the Agents, his
written opinion, as counsel for the Company, addressed to the Agents and dated
the Closing Date, in form and substance reasonably satisfactory to the Agents
substantially to the effect set forth in Annex II hereto.
(g) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, L.L.P., shall have
furnished to the Agents, their written opinion, as counsel to the Company,
addressed to the Agents and dated the Closing Date, in form and substance
reasonably satisfactory to the Agents substantially to the effect set forth in
Annex III hereto.
(h) The Agents shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ and Winthrop, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, each counsel for the Agents,
such opinion or opinions, dated the Closing Date, with respect to such matters
as the Agents may reasonably require, and the Company shall have furnished to
such counsel such documents and information as they reasonably request for the
purpose of enabling them to pass upon such matters.
(i) The Company shall have furnished to the Agents a letter
(the "Comfort Letter") of Deloitte & Touche LLP, addressed to the Agents and
dated the Closing Date, in form and substance satisfactory to the Agents,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
(j) The Company shall have furnished to the Agents a
certificate, dated the Closing Date, of its chairman, president or a vice
president and its chief financial officer or treasurer stating that as of the
Closing Date, the representations and warranties of the Company in this
Agreement are true and correct in all material respects, the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder on or prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or, to the best
13
of such officer's knowledge, are contemplated by the Commission, and subsequent
to the date of the most recent financial statements contained or incorporated by
reference in the Prospectus, there has been no material adverse change in the
financial position or results of operations of the Company and its subsidiaries,
taken as a whole, or any change, or any development involving a prospective
material adverse change, in or affecting the condition (financial or otherwise),
results of operations or business of the Company and its subsidiaries taken as a
whole, except as set forth in the Prospectus.
(k) If any event shall have occurred on or prior to the
Closing Date that requires the Company to prepare an amendment or supplement to
the Prospectus, such amendment or supplement shall have been prepared, the
Agents shall have been given a reasonable opportunity to comment thereon, and
copies thereof shall have been delivered to the Agents reasonably in advance of
the Closing Date.
(l) (i) There shall not have been any change in the capital
stock or long-term debt or any change, or any development involving a
prospective change, in or affecting the condition (financial or otherwise),
results of operations or business of the Company and its subsidiaries taken as a
whole, the effect of which, in any such case described above, is, in the
judgment of the applicable Agent, so material and adverse as to make it
impracticable or inadvisable to proceed with the offer and sale of the Notes on
the terms and in the manner contemplated by the Prospectus (exclusive of any
supplement thereto), (ii) no action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency or body which would prevent the issuance or sale of the
Notes; and no injunction, restraining order or order of any other nature by any
federal or state court of competent jurisdiction shall have been issued which
would prevent the issuance or sale of the Notes, (iii) there shall not have
occurred after the date of this Agreement (X) any downgrading in the rating
accorded the Notes or any of the Company's other debt securities or preferred
stock by any "nationally recognized statistical rating organization", as such
term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules
and Regulations and (Y) any public announcement by any such organization that it
has under surveillance or review (other than an announcement with positive
implications of a possible upgrading), its rating of the Notes or any of the
Company's other debt securities or preferred stock, and (iv) there shall have
not occurred any of the following: (A) trading in securities generally on the
New York Stock Exchange, the American Stock Exchange or the over-the-counter
market shall have been suspended or limited, or minimum prices shall have been
established on any such exchange or market by the Commission, by any such
exchange or by any other regulatory body or governmental authority having
jurisdiction, or trading in any securities of the Company on any exchange or in
the over-the-counter market shall have been suspended or (B) any moratorium on
commercial banking activities shall have been declared by federal or New York
state authorities or (C) an outbreak or escalation of hostilities or a
declaration by the United States of a national emergency or war or (D) a
material adverse change in general economic, political or financial conditions
(or the effect of international conditions on the financial markets in the
United States shall be such) the effect of which, in the case of this clause (C)
or (D), is, in the judgment of the applicable Agent, so
14
material and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the sale or the delivery of the Notes on the terms and in
the manner contemplated by this Agreement and in the Prospectus.
For purposes of this Section 4(1), it is understood that with
respect to any person who has agreed to purchase Notes as a result of an offer
to purchase solicited by an Agent (i) the judgment of such person shall be
submitted for the respective judgments referred to herein of the applicable
Agent, and (ii) such Agent shall have no duty or obligation whatsoever to
exercise such judgment or opinion on behalf of any such person.
(m) Prior to the Closing Date, the Company shall have
furnished to the Agents such further information, certificates and documents as
the Agents or counsel to the Agents may reasonably request.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Agents.
5. Additional Covenants of the Company. The Company covenants
and agrees with each Agent that:
(a) Each acceptance by it of an offer for the purchase of
Notes (whether through an Agent as agent or to one or more Agents as principal)
and each delivery of Notes (whether through an Agent as agent or to one or more
Agents as principal) shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this Agreement and in
any certificate theretofore delivered to the Agents pursuant hereto are true and
correct at the time of such acceptance or sale, as the case may be, and an
undertaking that such representations and warranties will be true and correct at
the time of delivery to such Agents or to the purchaser or its agent, as the
case may be, of the Notes relating to such acceptance or sale, as the case may
be, as though made at and as of each such time (and such representations and
warranties shall relate to the Registration Statement and the Prospectus as
amended or supplemented at each such time).
(b) Each time that the Registration Statement or any
Prospectus shall be amended or supplemented (other than by a Pricing Supplement
providing solely for the interest rates or maturities of the Notes or the
principal amount of Notes remaining to be sold or similar changes), each time
the Company sells Notes to an Agent as principal and the applicable Purchase
Agreement specifies the delivery of an officers' certificate as a condition to
the purchase of Notes pursuant to such Purchase Agreement, or the Company files
with the Commission any document incorporated by reference into any Prospectus,
the Company shall submit to the Agents a certificate, as of the date of such
amendment, supplement or Time of Delivery relating to such sale, as the case may
be, representing that the statements contained in the certificate referred to in
Section 4(j) hereof which was last furnished to the Agents are true
15
and correct at the time of such amendment, supplement or filing or the time of
such sale, as the case may be, as though made at and as of such time (except
that such statements shall be deemed to relate to the Registration Statement and
each Prospectus as amended and supplemented to such time).
(c) Each time that the Registration Statement or any
Prospectus shall be amended or supplemented (other than by a Pricing Supplement
providing solely for the interest rates or maturities of the Notes or the
principal amount of Notes remaining to be sold or similar changes), each time
the Company sells Notes to an Agent as principal and the applicable Purchase
Agreement specifies the delivery of a legal opinion as a condition to the
purchase of Notes pursuant to such Purchase Agreement, or the Company files with
the Commission any document incorporated by reference into any Prospectus (other
than current reports on Form 8-K filed exclusively to incorporate exhibits
required to be filed as Exhibits 1, 4 and 12 to the Registration Statement under
Regulation S-K), the Company shall, (i) concurrently with such amendment,
supplement, or Time of Delivery relating to such sale or filing, furnish the
Agents and their counsel with the written opinions of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.,
Senior Vice President and Corporate Secretary for the Company or other counsel
of the Company satisfactory to the Agents, each addressed to the Agents and
dated the date of delivery of such opinion, in form satisfactory to the Agents,
of the same effect as the opinions referred to in Section 4(f) hereof, but
modified, as necessary, to relate to the Registration Statement and each
Prospectus as amended or supplemented to the time of delivery of such opinion;
provided, however, that in lieu of such opinion, such counsel may furnish the
Agents with a letter to the effect that the Agents may rely on such prior
opinion to the same extent as though it was dated the date of such letter
authorizing reliance (except that statements in such prior opinion shall be
deemed to relate to the Registration Statement and each Prospectus as amended or
supplemented to the time of delivery of such letter authorizing reliance).
(d) Each time that the Registration Statement or any
Prospectus shall be amended or supplemented to include additional financial
information, each time the Company sells Notes to an Agent as principal and the
applicable Purchase Agreement specifies the delivery of a comfort letter as a
condition to the purchase of Notes pursuant to such Purchase Agreement or the
Company files with the Commission any document incorporated by reference into
any Prospectus which contains additional financial information, the Company
shall cause Deloitte & Touche LLP (or other independent accountants of the
Company acceptable to the Agents) to furnish the Agents, concurrently with such
amendment, supplement or Time of Delivery relating to such sale or filing, a
letter, addressed jointly to the Company and the Agents and dated the date of
delivery of such letter, in form and substance reasonably satisfactory to the
Agents, of the same effect as the letter referred to in Section 4(i) hereof but
modified to relate to the Registration Statement and each Prospectus, as amended
and supplemented to the date of such letter, with such changes as may be
necessary to reflect changes in the financial statements and other information
derived from the accounting records of the Company; provided, however, that if
the Registration Statement or any Prospectus is amended or supplemented solely
to include financial information as of and for a fiscal quarter, such
accountants may limit the scope of such
16
letter to the unaudited financial statements included in such amendment or
supplement unless there is contained therein any other accounting, financial or
statistical information that, in the reasonable judgment of the Agents, should
be covered by such letter, in which event such letter shall also cover such
other information.
6. Termination.
(a) This Agreement (excluding any agreement by one or more
Agents to purchase Notes from the Company as principal) may be terminated for
any reason, at any time by either the Company or an Agent, as to itself, upon
the giving of written notice of such termination to the other parties hereto.
(b) In the event of any such termination, neither party will
have any liability to the other party hereto, except that (i) the Agents shall
be entitled to any commissions earned in accordance with Section 2 hereof, (ii)
if at the time of termination (a) any Agent shall own any Notes purchased by it
from the Company as principal or (b) an offer to purchase any of the Notes has
been accepted by the Company but the time of delivery to the purchaser or his
agent of such Notes relating thereto has not occurred, the covenants set forth
in Sections 3 and 5 hereof shall remain in effect until such Notes are so resold
or delivered, as the case may be, and (iii) the covenants set forth in Section
3(h) and 3(i) hereof, the provisions of Section 10 hereof, the indemnity and
contribution agreements set forth in Sections 7 and 8 hereof, and the provisions
of Sections 9, 12 and 15 hereof shall remain in effect.
7. Indemnification. (a) The Company shall indemnify and hold
harmless each Agent, its affiliates, their respective officers, directors,
employees, representatives and agents, and each person, if any, who controls any
Agent within the meaning of the Securities Act or the Exchange Act (collectively
referred to for purposes of this Section 7(a) as an Agent), from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, without limitation, any loss, claim, damage, liability or
action relating to purchases and sales of the Notes), to which that Agent may
become subject, whether commenced or threatened, under the Securities Act, the
Exchange Act, any other federal or state statutory law or regulation, at common
law or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
Prospectus or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein not misleading, and shall
reimburse each Agent promptly upon demand for any legal or other expenses
reasonably incurred by that Agent in connection with investigating or defending
or preparing to defend against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity
17
with any written information furnished to the Company by the Agents expressly
for use in the Registration Statement or the Prospectus ("Agents' Information")
or arises out of, or is based upon, statements or omission from the statement of
eligibility and qualification on Form T-1 of the Trustee.
(b) Each Agent, severally and not jointly, shall indemnify and
hold harmless the Company, its officers who signed the Registration Statement,
directors, and each person, if any, who controls the Company within the meaning
of the Securities Act or the Exchange Act (collectively referred to for purposes
of this Section 7(b) as the Company), from and against any loss, claim, damage
or liability, joint or several, or any action in respect thereof, to which the
Company may become subject, whether commenced or threatened, under the
Securities Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any Prospectus or in any amendment or supplement thereto or (ii)
the omission or alleged omission to state therein 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, but in
each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with any Agents' Information provided by such Agent, and shall
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending or preparing to defend
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 7(a) or 7(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure of the indemnified party to notify the indemnifying
party shall not relieve the indemnifying party from any liability which it may
have under this Section 7 except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such
failure; and, provided, further, that the failure of the indemnified party to
notify the indemnifying party shall not relieve the indemnifying party from any
liability which it may have to an indemnified party otherwise than under this
Section 7. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that the
indemnifying party wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying party
to the indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 7 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that an indemnified party
shall have the right to employ its own counsel in any such
18
action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party, (3)
counsel for the indemnified party shall have concluded (in its reasonable
judgment) that a conflict or potential conflict exists (based upon advice of
counsel to the indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not have the right
to direct the defense of such action on behalf of the indemnified party) or (4)
the indemnifying party has not in fact employed counsel reasonably satisfactory
to the indemnified party to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate
firm of attorneys (in addition to any local counsel) at any one time for all
such indemnified party or parties. Each indemnified party, as a condition of the
indemnity agreements contained in Sections 7(a) and 7(b), shall use all
reasonable efforts to cooperate with the indemnifying party in the defense of
any such action or claim. No indemnifying party shall be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld or delayed), but if settled with its
written consent or if there be a final judgment for the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
The obligations of the Company and the Agents in this Section
7 and in Section 8 are in addition to any other liability that the Company or
the Agents, as the case may be, may otherwise have, including in respect of any
breaches of representations, warranties and agreements made herein by any such
party.
8 Contribution. If the indemnification provided for in Section
7 is unavailable or insufficient to hold harmless an indemnified party under
Section 7(a) or 7(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the
Agents on the other from the offering of the Notes to which such loss, claim,
damage or liability relates or (ii) if the allocation
19
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Agents on the other with respect to the statements or omissions
that resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Agents on the other
with respect to such offering shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Notes to which such loss, claim,
damage or liability relates (before deducting expenses) received by or on behalf
of the Company, on the one hand, and the total discounts and commissions
received by the Agents with respect to such Notes, on the other, bear to the
total gross proceeds from the sale of such Notes. 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 the Company or information supplied by the Company on
the one hand or to any Agents' Information on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company and the Agents
agree that it would not be just and equitable if contributions pursuant to this
Section 8 were to be determined by pro rata allocation (even if the Agents were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section 8 shall be deemed to include, for purposes of this Section 8, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 8, no Agent
shall be required to contribute any amount in excess of the amount by which the
total price at which the Notes purchased by or through such Agent were sold to
which such loss, claim, damage or liability relates exceeds the amount of any
damages which such Agent has otherwise paid or become liable to pay by reason of
any 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 Agents' obligations
to contribute as provided in this Section 8 are several in proportion to their
respective commitments and not joint.
9 Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Agents, the Company and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons named in the immediately
preceding sentence, except as provided in Sections 7 and 8 with respect to
affiliates, officers, directors, employees, representatives, agents and
controlling persons of the Company and the Agent. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 9, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
20
10 Expenses. The Company agrees with the Agents to pay (a) the
costs incident to the authorization, issuance, sale, preparation and delivery of
the Notes and any taxes payable in that connection; (b) the costs incident to
the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs of
printing and distributing the Registration Statement as originally filed and
each amendment thereto and any post-effective amendments thereof (including, in
each case, exhibits), any Prospectus and any amendment or supplement thereto,
all as provided in this Agreement; (d) the costs of printing, reproducing and
distributing the Indenture and this Agreement; (e) the filing fees incident to
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of sale of the Notes; (f) the fees and expenses of the
Company's counsel, Agents' counsel and the Company's independent accountants;
(g) the fees and expenses of preparing, printing and distributing Blue Sky
Memoranda (including related fees and expenses of Agents' counsel); (h) any fees
charged by rating agencies for rating the Notes; (i) all fees and expenses of
the Trustee and any paying agent (including related fees and expenses of any
counsel to such parties); and (j) all other costs and expenses incident to the
performance of the obligations of the Company under this Agreement.
11 Status of Each Agent. In soliciting offers to purchase the
Notes from the Company pursuant to this Agreement (other than in respect of any
Purchase Agreement), each Agent is acting individually and not jointly and is
acting solely as agent for the Company and not as principal. Each Agent will
make reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes from the Company has been solicited by
such Agent and accepted by the Company, but such Agent shall have no liability
to the Company in the event any such purchase is not consummated for any reason.
If the Company shall default in its obligations to deliver Notes to a purchaser
whose offer it has accepted, the Company shall (i) hold the Agents harmless
against any loss, claim or damage arising from or as a result of such default by
the Company and (ii), in particular, pay to the Agents any commission to which
they would be entitled in connection with such sale.
12 Survival. The respective indemnities, rights of
contribution, representations, warranties and agreements of the Company and the
Agents contained in this Agreement or made by or on behalf of the Company or the
Agents pursuant to this Agreement or any certificate delivered pursuant hereto
shall survive the delivery of and payment for the Notes and shall remain in full
force and effect, regardless of any investigation made by or on behalf of any of
them or any of their respective affiliates, officers, directors, employees,
representatives, agents or controlling persons.
13 Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Agents, shall be delivered or sent by mail or
telecopy transmission to the address set forth below:
21
Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 8th floor
Attention: Medium Term Note Desk
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
First Union Securities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ - Money Market
Origination
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
22
▇▇▇▇▇▇▇ Lynch, Pierce , ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: MTN Product Management:
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Transaction Execution Group
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Medium Term Note Department
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
or
(b) if to the Company, shall be delivered or sent by mail or
telecopy transmission to the address of the Company set forth set forth below:
Carolina Power & Light Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Treasurer
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
14 Definition of Terms. For purposes of this Agreement, (a)
the term "business day" means any day on which the New York Stock Exchange, Inc.
is open for trading, (b) the term "subsidiary" has the meaning set forth in Rule
405 of the Rules and Regulations and (c) except where otherwise expressly
provided, the term "affiliate" has the meaning set forth in Rule 405 of the
Rules and Regulations.
15 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
23
16 Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
17 Amendments. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
18 Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
24
If the foregoing correctly sets forth our agreement, please indicate your
acceptance hereof in the space provided for that purpose below.
Very truly yours,
CAROLINA POWER & LIGHT COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ III
---------------------------
CONFIRMED AND ACCEPTED, as of the date first above written:
CHASE SECURITIES INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------
Authorized Signatory
Address for notices pursuant to Section 7(c):
1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
FIRST UNION SECURITIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Authorized Signatory
Address for notices pursuant to Section 7(c):
Debt Capital Markets
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
25
By: /s/ ▇▇▇▇▇▇▇, Sachs & Co.
---------------------------------------------
Authorized Signatory
Address for notices pursuant to Section 7(c):
Credit References
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Department
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ LYNCH, PIERCE , ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Authorized Signatory
Address for notices pursuant to Section 7(c):
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: MTN Product Management
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇
---------------------------------------------
Authorized Signatory
Address for notices pursuant to Section 7(c):
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Transaction Execution Group
26
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Authorized Signatory
Address for notices pursuant to Section 7(c):
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Medium Term Note Program Department
ANNEX I
[FORM OF OPINION OF COUNSEL FOR THE COMPANY]
Hunton & ▇▇▇▇▇▇▇▇ shall have furnished to the Agents their
written opinion, as counsel to the Company, addressed to the Agents and dated
the Closing Date, in form and substance reasonably satisfactory to the Agents,
substantially to the effect set forth below:
(i) The Indenture has been duly and validly authorized by all
necessary corporate action, has been duly and validly executed and delivered,
and is a valid and legally binding obligation of the Company enforceable in
accordance with its terms, except as limited by bankruptcy, insolvency or other
laws affecting mortgagees' and other creditors' rights and by general equitable
principles and any implied covenant of good faith and fair dealings;
(ii) The Indenture has been duly qualified under the Trust
Indenture Act;
(iii) Assuming authentication by the Trustee in accordance
with the Indenture and delivery to and payment for the Notes by the Agents, as
provided in this Agreement, the Notes have been duly and validly authorized,
executed and delivered and are legal, valid and binding obligations of the
Company enforceable in accordance with their terms, except as limited by
bankruptcy, insolvency or other laws affecting mortgagees' and other creditors'
rights and by general equitable principles and any implied covenant of good
faith and fair dealing, and are entitled to the benefits of the Indenture;
(iv) The statements made in the Prospectus under the caption
"Description of Debt Securities" and under the caption "Description of the
Notes," insofar as they purport to constitute summaries of the documents
referred to therein, are correct in all material respects;
(v) The statements in the Prospectus under the heading
"Certain Federal Income Tax Considerations", to the extent that they constitute
summaries of matters of law or regulation or legal conclusions, fairly summarize
the matters described therein in all material respects;
(vi) This Agreement has been duly and validly authorized,
executed and delivered by the Company;
2
(vii) The Registration Statement, at the time and date it was
declared effective by the Commission, and the Prospectus, at the time it was
filed with, or transmitted for filing to, the Commission pursuant to Rule 424
(except as to the financial statements and other financial and statistical data
constituting a part thereof or incorporated by reference therein, upon which
such opinions need not pass), complied as to form in all material respects with
the requirements of the Securities Act and the 1939 Act and the applicable
instructions, rules and regulations of the Commission thereunder; the documents
or portions thereof filed with the Commission pursuant to the Exchange Act and
deemed to be incorporated by reference in the Registration Statement and the
Prospectus pursuant to Item 12 of Form S-3 (except as to financial statements
and other financial and statistical data constituting a part thereof or
incorporated by reference therein, upon which such opinions need not pass), at
the time they were filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder; the
Registration Statement has become effective under the Securities Act and, to the
best of the knowledge of said counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and not withdrawn
and no proceedings for a stop order with respect thereto are threatened or
pending under Section 8 of the Securities Act;
(viii) The Company is not and, after giving effect to the
offering and sale of the Notes and application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(ix) Nothing has come to the attention of said counsel that
would lead them to believe that the Registration Statement, including any
Exchange Act Reports incorporated by reference therein, at the time and date it
was declared effective by the Commission, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. Nothing has come to
the attention of said counsel that would lead them to believe that the
Prospectus or any amendments or supplements thereto, including any Exchange Act
Reports incorporated by reference therein, includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading (except as to financial statements and other financial
and statistical data constituting a part of the Registration Statement or the
Prospectus or incorporated by reference therein, upon which such opinions need
not pass); and
(x) Orders have been entered by the North Carolina Utilities
Commission and the South Carolina Public Service Commission authorizing the
issuance and sale of the Notes; to the best of the knowledge of said counsel,
said orders are still in force and effect; and no further filing with, or
approval, authorization, consent or other order of, any public board or body
(except such as have been obtained under the Securities Act and as may be
required under the state securities or Blue Sky laws of any jurisdiction) is
legally required for the consummation of the transactions contemplated in this
Agreement.
ANNEX II
[FORM OF OPINION OF COUNSEL FOR THE COMPANY]
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Senior Vice President and Corporate
Secretary for the Company shall have furnished to the Agents his written
opinion, as counsel to the Company, addressed to the Agents and dated the
Closing Date, in form and substance reasonably satisfactory to the Agents,
substantially to the effect set forth below:
(i) The Company is a validly organized and existing
corporation and is in good standing under the laws of the State of
North Carolina and is duly qualified to do business as an electrical
utility and is doing business in that State and in the State of South
Carolina;
(ii) The Company is duly authorized by its Articles to
conduct the business which it is now conducting as set forth in the
Prospectus;
(iii) The Company has valid and subsisting franchises,
licenses and permits free from burdensome restrictions and adequate for
the conduct of its business;
(iv) The issuance and sale of the Notes have been duly
authorized by all necessary corporate action on the part of the
Company;
(v) The Indenture has been duly and validly authorized
by all necessary corporate action, has been duly and validly executed
and delivered, and is a valid and legally binding obligation of the
Company enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency or other laws affecting mortgagees' and other
creditors' rights and by general equitable principles and any implied
covenant of good faith and fair dealings;
(vi) The Indenture has been duly qualified under the
Trust Indenture Act;
(vii) Assuming authentication by the Trustee in
accordance with the Indenture and delivery to and payment for the Notes
by the Agents, as provided in this Agreement, the Notes have been duly
and validly authorized, executed and delivered and are legal, valid and
binding obligations of the Company enforceable in accordance with their
terms, except as limited by bankruptcy, insolvency or other laws
affecting mortgagees' and other creditors' rights and by general
equitable principles and any implied covenant of good faith and fair
dealing, and are entitled to the benefits of the Indenture;
2
(viii) The statements made in the Prospectus under the
caption "Description of Debt Securities" and under the caption
"Description of the Notes," insofar as they purport to constitute
summaries of the documents referred to therein, are correct in all
material respects;
(ix) This Agreement has been duly and validly
authorized, executed and delivered by the Company;
(x) Except as described in or contemplated by the
Prospectus, there are no pending actions, suits or proceedings against
or affecting the Company or any of its subsidiaries or properties which
are likely in the aggregate, to result in any material adverse change
in the business, property, financial condition, earnings, business
affairs, or business prospects of the Company and its subsidiaries
considered as a whole or which are likely in the aggregate, to
materially and adversely affect the consummation of this Agreement, the
Indenture, the Notes or the transactions contemplated herein or
therein.
(xi) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will not result in
a breach of any of the terms or provisions of, or constitute a default
under, the Articles, the Company's by-laws, applicable law or any
indenture, mortgage, deed of trust or other agreement or instrument to
which the Company is now a party or any judgment, order, writ or decree
of any government or governmental authority or agency or court having
jurisdiction over the Company or any of its subsidiaries or any of
their assets, properties or operations.
(xii) The Company is not and, after giving effect to the
offering and sale of the Notes and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended.
(xiii) Nothing has come to the attention of said counsel
that would lead them to believe that the Registration Statement,
including any Exchange Act Reports incorporated by reference therein,
at the time and date it was declared effective by the Commission,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. Nothing has come to the attention of
said counsel that would lead them to believe that the Prospectus or any
amendments or supplements thereto, including any Exchange Act Reports
incorporated by reference therein, includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading (except as to financial
statements and other financial and statistical data constituting a part
of the Registration Statement or the Prospectus or incorporated by
reference therein, upon which such opinions need not pass); and
3
(xiv) Orders have been entered by the North Carolina
Utilities Commission and the South Carolina Public Service Commission
authorizing the issuance and sale of the Notes; to the best of the
knowledge of said counsel, said orders are still in force and effect;
and no further filing with, or approval, authorization, consent or
other order of, any public board or body (except such as have been
obtained under the Securities Act and as may be required under the
state securities or Blue Sky laws of any jurisdiction) is legally
required for the consummation of the transactions contemplated in this
Agreement.
In said opinion such counsel may rely as to all matters of South Carolina law
(except as to subdivision (iii)) on the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇▇▇, L.L.P., and as to all matters of New York law on the opinion of
Hunton & ▇▇▇▇▇▇▇▇.
ANNEX III
[FORM OF OPINION OF COUNSEL FOR THE COMPANY]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarbourough, L.L.P. shall have
furnished to the Agents their written opinion, as counsel to the Company,
addressed to the Agents and dated the Closing Date, in form and substance
reasonably satisfactory to the Agents, substantially to the effect set forth
below:
(i) As recognized in a South Carolina Public Service
Commission Order on Remand dated July 9, 1990, (1) the Company is an
electrical utility engaged in the business of generating, transmitting,
distributing and selling electric power to the general public in the
States of South Carolina and North Carolina, and (2) the Company
conducts its South Carolina retail operations subject to the
jurisdiction of the South Carolina Public Service Commission pursuant
to South Carolina Code Annotated, Sections 58-27-10 et seq. (1976 as
amended);
(ii) Based solely on a Certificate of Existence issued by
the South Carolina Secretary of State, the Company is duly qualified to
transact business in the State of South Carolina; and
(iii) The South Carolina Public Service Commission has
entered an order authorizing the issuance and sale of the Notes; and no
further filing with, or approval, authorization, consent or other order
of, any public board or body of the State of South Carolina (except as
may be required under the Blue Sky laws of the State of South Carolina)
is legally required for the issuance and sale of the Notes.
EXHIBIT A
SCHEDULE OF PAYMENTS
Carolina Power & Light Company
Medium-Term Notes, Series D
The Company agrees to pay each Agent, unless otherwise agreed by the
Company and the relevant Agent, a commission equal to the following percentage
of the aggregate U.S. dollar equivalent of the principal amount of Notes:
----------------------------------------------------------- --------------------------------------------------------
TERM COMMISSION RATE
----------------------------------------------------------- --------------------------------------------------------
9 months to less than 12 months .125%
----------------------------------------------------------- --------------------------------------------------------
12 months to less than 18 months .150%
----------------------------------------------------------- --------------------------------------------------------
18 months to less than 2 years .200%
----------------------------------------------------------- --------------------------------------------------------
2 years to less than 3 years .250%
----------------------------------------------------------- --------------------------------------------------------
3 years to less than 4 years .350%
----------------------------------------------------------- --------------------------------------------------------
4 years to less than 5 years .450%
----------------------------------------------------------- --------------------------------------------------------
5 years to less than 6 years .500%
----------------------------------------------------------- --------------------------------------------------------
6 years to less than 7 years .550%
----------------------------------------------------------- --------------------------------------------------------
7 years to less than 10 years .600%
----------------------------------------------------------- --------------------------------------------------------
10 years to less than 15 years .625%
----------------------------------------------------------- --------------------------------------------------------
15 years to less than 20 years .700%
----------------------------------------------------------- --------------------------------------------------------
20 years to less than 30 years .750%
----------------------------------------------------------- --------------------------------------------------------
30 years and beyond to be negotiated
----------------------------------------------------------- --------------------------------------------------------
EXHIBIT B
ADMINISTRATIVE PROCEDURES
Carolina Power & Light Company
Medium-Term Notes
---------------------------------
Explained below are the administrative procedures and specific
terms of the offering of Medium-Term Notes (the "Notes"), on a continuous basis
by Carolina Power & Light Company (the "Company") pursuant to the Distribution
Agreement, dated as of June 30, 2000 (the "Distribution Agreement") among the
Company and Chase Securities Inc., First Union Securities, Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇
& Co., ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated and ▇.▇. ▇▇▇▇▇▇ Securities Inc. (the "Agents"). The Notes will be
issued under an Indenture for Debt Securities dated as of October 28, 1999 (the
"Indenture"), between the Company and The Chase Manhattan Bank, as trustee (the
"Trustee"). In the Distribution Agreement, the Agents have agreed to use
reasonable efforts to solicit purchases of the Notes, and the administrative
procedures explained below will govern the issuance and settlement of any Notes
sold through an Agent, as agent of the Company. An Agent, as principal, may also
purchase Notes for its own account, and if requested by such Agent, the Company
and such Agent will enter into a purchase agreement (a "Purchase Agreement"), as
contemplated by the Distribution Agreement. The administrative procedures
explained below will govern the issuance and settlement of any Notes purchased
by an Agent, as principal, unless otherwise specified in the applicable Purchase
Agreement. Any changes to these administrative procedures that would effect the
Trustee's role hereunder shall require the consent of the Trustee.
The Trustee will be the Registrar, Calculation Agent,
Authenticating Agent and Paying Agent for the Notes and will perform the duties
specified herein. Each Note will be represented by either a Global Security (as
defined below) delivered to the Trustee, as agent for The Depository Trust
Company ("DTC"), and recorded in the book-entry system maintained by DTC (a
"Book-Entry Note") or a certificate delivered to the holder thereof or a person
designated by such holder (a "Certificated Note"). Except as set forth in the
Indenture, an owner of a Book-Entry Note will not be entitled to receive a
Certificated Note.
Book-Entry Notes, which may be payable only in U.S. dollars,
will be issued in accordance with the administrative procedures set forth in
Part I hereof as they may subsequently be amended as the result of changes in
DTC's operating procedures. Certificated Notes will be
3
issued in accordance with the administrative procedures set forth in Part II
hereof. Unless otherwise defined herein, terms defined in the Indenture, the
Notes or any prospectus supplement relating to the Notes shall be used herein as
therein defined.
The Company will advise the Agents in writing of the employees
of the Company with whom the Agents are to communicate regarding offers to
purchase Notes and the related settlement details.
PART 1.: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes
for eligibility in the book-entry system maintained by DTC, the Trustee will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representations from the Company and the Trustee to DTC, dated as of June 27,
2000 and a Medium-Term Note Certificate Agreement between the Trustee and DTC,
dated as of March 10, 1989 (the "MTN Certificate Agreement"), and its
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS").
Issuance: On any date of settlement (as defined under "Settlement"
below) for one or more Book-Entry Notes, the Company will
issue a single global security in fully registered form
without coupons (a "Global Security") representing up to U.S.
$300,000,000 principal amount of all such Notes that have the
same original issue date, Maturity Date and other terms. Each
Global Security will be dated and issued as of the date of its
authentication by the Trustee. Each Global Security will bear
an "Interest Accrual Date," which will be (i) with respect to
an original Global Security (or any portion thereof), its
original issuance date and (ii) with respect to any Global
Security (or any portion thereof) issued subsequently upon
exchange of a Global Security, or in lieu of a destroyed, lost
or stolen Global Security, the most recent Interest Payment
Date to which interest has been paid or duly provided for on
the predecessor Global Security (or if no such payment or
provision has been made, the original issuance date of the
predecessor Global Security), regardless of the date of
authentication of such subsequently issued Global Security.
Book-Entry Notes may be payable only in U.S. dollars. No
Global Security will represent any Certificated Note.
Denominations: Book-Entry Notes will be issued in principal amounts of U.S.
4
$1,000 or any amount in excess thereof that is an
integral multiple of U.S. $1,000. Global Securities
will be denominated in principal amounts not in
excess of U.S. $300,000,000. If one or more
Book-Entry Notes having an aggregate principal amount
in excess of $300,000,000 would, but for the
preceding sentence, be represented by a single Global
Security, then one Global Security will be issued to
represent each U.S. $300,000,000 principal amount of
such Book-Entry Note or Notes and an additional
Global Security will be issued to represent any
remaining principal amount of such Book-Entry Note or
Notes. In such a case, each of the Global Securities
representing such Book-Entry Note or Notes shall be
assigned the same CUSIP number.
Delivery of Pricing A copy of the Prospectus as most recently amended or
Supplement: supplemented on the date of delivery thereof,
together with the applicable Pricing Supplement, must
be delivered to a purchaser prior to or together with
the earlier of the delivery by the Agent[s] of (i)
the written confirmation of a sale sent to a
purchaser or his agent and (ii) any Note purchased by
such purchaser. The Company shall ensure that the
Agent receives copies of the Prospectus and each
amendment or supplement thereto (including the
applicable Pricing Supplement) in such quantities and
within such time limits as will enable the Agent to
deliver such confirmation or Note to a purchaser as
contemplated by these procedures and in compliance
with the preceding sentence. Copies of Pricing
Supplements should be delivered to the Agent which
made or presented the offer to purchase the
applicable Note and the Trustee at the following
applicable address: if to Chase Securities Inc., to:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10017,
MTN Note Desk, telecopier (▇▇▇) ▇▇▇-▇▇▇▇; if to
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., to: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: Prospectus Dept. - 2nd
Concourse Level, telecopier: ▇▇▇-▇▇▇-▇▇▇▇; if to
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
to: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Production, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: Prospectus
Operations/▇▇▇▇▇▇▇, telecopier: ▇▇▇-▇▇▇-▇▇▇▇; if to
▇.▇. ▇▇▇▇▇▇ Securities Inc., to: MTN Note Desk, ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
telecopier: 212-648-5909; if to First Union
Securities, Inc., to: Debt Capital Markets, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇., telecopier: ▇▇▇-▇▇▇-▇▇▇▇; if to ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc., to: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: Medium Term Note Department,
telecopier: 212-816-
5
0949; if to the Trustee, to ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, telecopier (205)
968-9109.
Settlement: The receipt by the Company of immediately available funds in
payment for a Book-Entry Note and the authentication and
issuance of the Global Security representing such Note shall
constitute "settlement" with respect to such Note. All offers
accepted by the Company will be settled on the third business
day (as defined in the Distribution Agreement) next succeeding
the date of acceptance pursuant to the timetable for
settlement set forth below, unless the Company and the
purchaser agree to settlement on another day, which shall be
no earlier than the next business day.
Settlement Settlement Procedures with regard to each Book-Entry Note sold
Procedures: by the Company to or through an Agent (unless otherwise
specified pursuant to a Purchase Agreement, with the consent
of the Trustee) shall be as follows:
(A) The relevant Agent will advise the Company by
telephone and facsimile or electronic transmission
("e-mail") that such Note is a Book-Entry Note and of
the following settlement information:
(i) Principal amount.
(ii) Maturity Date.
(iii) In the case of a Fixed Rate Book-Entry Note,
the interest rate, whether such Note will
pay interest annually or semiannually and
whether such Note is an amortizing note,
and, if so, the amortization schedule, or,
in the case of a Floating Rate Book-Entry
Note, the initial interest rate (if known at
such time), interest payment date(s),
interest payment period, calculation agent,
base rate, index maturity, interest reset
period, initial interest reset date,
interest reset dates, spread or spread
multiplier (if any), minimum interest rate
(if any), and maximum interest rate (if
any).
(iv) Redemption and/or repayment provisions (if
any).
6
(v) Settlement date and time (original issue
date).
(vi) Interest accrual date.
(vii) Price.
(viii) Agent's commission (if any) determined as
provided in the Distribution Agreement and
the Agent's DTC account number.
(ix) Whether the Note is an original issue
discount note (an "OID Note"), and if it is
an OID Note, the total amount of OID, the
yield to maturity, the initial accrual
period OID and the applicability of modified
payment upon acceleration (and, if so, the
issue price).
(x) Whether the Note is a currency-linked Note,
and if it is a currency-linked Note, the
denominated currency, currency or currencies
to which the principal amount payable on any
principal payment is linked or indexed, the
payment currency, the exchange rate agent,
the reference dealers, the face amount, the
fixed amount of each indexed currency, the
aggregate fixed amount of each indexed
currency and the authorized denominations
(if other than U.S. dollars).
(xi) Whether the Note is a renewable note, and if
it is a renewable note, the initial maturity
date and the final maturity date.
(xii) Whether the Company has to extend the
scheduled maturity date of the Note, and, if
so, the final maturity date of such Note.
(xiii) Whether the Company has the option to reset
the interest rate, the spread or the spread
multiplier of the Note.
(xiv) the taxpayer identification number of the
registered owner(s).
7
(xv) the net proceeds to the Company.
(xvi) Any other applicable terms.
(B) The Company will advise the Trustee by telephone,
facsimile or e-mail (confirmed in writing at any time
on the same date) of the information set forth in
Settlement Procedure "A" above. The Trustee will then
assign a CUSIP number to the Global Security
representing such Note and will notify the Company
and the relevant Agent of such CUSIP number by
telephone as soon as practicable.
(C) The Trustee will enter a pending deposit message
through DTC's Participant Terminal System, providing
the following settlement information to DTC, the
relevant Agent and Standard & Poor's Corporation:
(i) The information set forth in Settlement
Procedure "A."
(ii) The initial interest payment date for such
Note, the number of days by which such date
succeeds the related Record Date (which
shall be the record date as defined in the
Note) and, if known, the amount of interest
payable on such initial interest payment
date.
(iii) The CUSIP number of the Global Security
representing such Note.
(iv) Whether such Global Security will represent
any other Book-Entry Note (to the extent
known at such time).
(v) Whether such Note is an Amortizing Note (by
an appropriate notation in the comments
field of DTC's Participant Terminal System).
(vi) The number of participant accounts to be
maintained by DTC on behalf of the relevant
Agent and the Trustee.
(D) The Company will deliver a form of Note to the
Trustee no
8
later than 3:00 P.M. on the date of acceptance.
(E) The Trustee will complete and authenticate the Global
Security representing such Note.
(F) DTC will credit such Note to the Trustee's
participant account at DTC.
(G) The Trustee will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to
(i) debit such Note to the Trustee's participant
account and credit such Note to the relevant Agent's
participant account and (ii) debit such Agent's
settlement account and credit the Trustee's
settlement account for an amount equal to the price
of such Note less such Agent's commission (if any).
The entry of such a deliver order shall constitute a
representation and warranty by the Trustee to DTC
that (a) the Global Security representing such
Book-Entry Note has been issued and authenticated and
(b) the Trustee is holding such Global Security
pursuant to the MTN Certificate Agreement.
(H) Unless the relevant Agent is the end purchaser of
such Note, such Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to such
Agent's participant account and credit such Note to
the participant accounts of the Participants with
respect to such Note and (ii) to debit the settlement
accounts of such Participants and credit the
settlement account of such Agent for an amount equal
to the price of such Note.
(I) Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "F" and "G"
will be settled in accordance with SDFS operating
procedures in effect on the settlement date.
(J) The Trustee will credit to the account of the Company
maintained at Wachovia Bank, N.A., Winston-Salem,
North Carolina, ABA#▇▇▇▇▇▇▇▇▇ and account
#▇▇▇▇▇▇▇▇▇▇, in immediately available funds the
amount transferred to the Trustee in accordance with
Settlement Procedure "F" upon receipt by the Trustee
of such
9
amount.
(K) Unless the relevant Agent is the end purchaser of
such Note, such Agent will confirm the purchase of
such Note to the purchaser either by transmitting to
the Participants with respect to such Note a
confirmation order or orders through DTC's
institutional delivery system or by mailing a written
confirmation to such purchaser.
(L) Monthly, the Trustee will send to the Company a
statement setting forth the principal amount of Notes
outstanding as of that date under the Indenture and
setting forth a brief description of any sales of
which the Company has advised the Trustee that have
not yet been settled.
Settlement Procedures For sales by the Company of Book-Entry Notes to or
Timetable: through an Agent (unless otherwise specified pursuant
to a Purchase Agreement) for settlement on the first
Business Day after the sale date, Settlement
Procedures "A" through "J" set forth above shall be
completed as soon as possible but not later than the
respective times in New York City set forth below:
Settlement
Procedure Time
--------- ----
A 11:00 A.M. on sale date
B 12:00 Noon on sale date
C 2:00 P.M. on sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedures "A", "B"
and "C" shall be completed as soon as practicable but
no later than 11:00 A.M., 12:00 Noon and 2:00 P.M.,
respectively, on the first Business Day after the
sale date. If the Initial Interest Rate for a
Floating Rate Book-Entry Note has not been determined
at the time that Settlement Procedure "A" is
completed, Settlement Procedures "B" and "C" shall be
completed as soon as such rate has been determined
but no later than 12:00 Noon and 2:00 P.M.,
respectively, on the first Business Day before the
settlement date.
10
Settlement Procedure "H" is subject to extension in
accordance with any extension of Fedwire closing
deadlines and in the other events specified in the
SDFS operating procedures in effect on the settlement
date.
If settlement of a Book-Entry Note is rescheduled or
canceled, the Trustee, after receiving notice from
the Company or the relevant Agent, will deliver to
DTC, through DTC's Participant Terminal System, a
cancellation message to such effect by no later than
2:00 P.M. on the business day immediately preceding
the scheduled settlement date.
Failure to Settle: If the Trustee fails to enter an SDFS deliver order
with respect to a Book-Entry Note pursuant to
Settlement Procedure "F", the Trustee may deliver to
DTC, through DTC's Participant Terminal System, as
soon as practicable a withdrawal message instructing
DTC to debit such Note to the Trustee's participant
account, provided that the Trustee's participant
account contains a principal amount of the Global
Security representing such Note that is at least
equal to the principal amount to be debited. If a
withdrawal message is processed with respect to all
the Book-Entry Notes represented by a Global
Security, the Trustee will ▇▇▇▇ such Global Security
"canceled," make appropriate entries in the Trustee's
records and send such canceled Global Security to the
Company in accordance with written instructions from
the Company. The CUSIP number assigned to such Global
Security shall, in accordance with the procedures of
the CUSIP Service Bureau of Standard & Poor's
Corporation, be canceled and not immediately
reassigned. If a withdrawal message is processed with
respect to one or more, but not all, of the
Book-Entry Notes represented by a Global Security,
the Trustee will exchange such Global Security for
two Global Securities, one of which shall represent
such Book-Entry Note or Notes and shall be canceled
immediately after issuance and the other of which
shall represent the remaining Book-Entry Notes
previously represented by the surrendered Global
Security and shall bear the CUSIP number of the
surrendered Global Security.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or a
person, including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the relevant Agent may
enter SDFS deliver orders through
11
DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures "F"
and "G," respectively. Thereafter, the Trustee will
deliver the withdrawal message and take the related
actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect. In the event of
a failure to settle with respect to one or more, but
not all, of the Book-Entry Notes to have been
represented by a Global Security, the Trustee will
provide, in accordance with Settlement Procedures "D"
and "F," for the authentication and issuance of a
Global Security representing the Book-Entry Notes to
be represented by such Global Security and will make
appropriate entries in its records.
PART 2.: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as Registrar in connection with the
Certificated Notes.
Issuance: Each Certificated Note will be dated and issued as of
the date of its authentication by the Trustee. Each
Certificated Note will bear an original issue date,
which will be (i) with respect to an original
Certificated Note (or any portion thereof), its
original issuance date (which will be the settlement
date) and (ii) with respect to any Certificated Note
(or portion thereof) issued subsequently upon
transfer or exchange of a Certificated Note or in
lieu of a destroyed, lost or stolen Certificated
Note, the original issuance date of the predecessor
Certificated Note, regardless of the date of
authentication of such subsequently issued
Certificated Note.
Delivery of Pricing A copy of the Prospectus as most recently amended or
Supplement: supplemented on the date of delivery thereof,
together with the applicable Pricing Supplement, must
be delivered to a purchaser prior to or together with
the earlier of the delivery by the Agent[s] of (i)
the written confirmation of a sale sent to a
purchaser or his agent and (ii) any Note purchased by
such purchaser. The Company shall ensure that the
Agent receives copies of the Prospectus and each
amendment or supplement thereto (including the
applicable Pricing Supplement) in such quantities and
within such time limits as will enable the Agent to
deliver such confirmation or Note to a purchaser as
contemplated by these
12
procedures and in compliance with the preceding
sentence to the Agent which made or presented the
offer to purchase the applicable Note and the Trustee
at the following applicable address: if to Chase
Securities Inc., to: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ 10017, MTN Note Desk, telecopier (212)
834-6081; if to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., to: ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: Prospectus
Dept. - 2nd Concourse Level, telecopier:
▇▇▇-▇▇▇-▇▇▇▇; if to ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated, to: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Production, ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn:
Prospectus Operations/▇▇▇▇▇▇▇, telecopier:
▇▇▇-▇▇▇-▇▇▇▇; if to ▇.▇. ▇▇▇▇▇▇ Securities Inc., to:
MTN Note Desk, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇, telecopier: 212-648-5909; if to First Union
Securities, Inc., to: Debt Capital Markets, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇., telecopier: ▇▇▇-▇▇▇-▇▇▇▇; if to ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc., to: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: Medium Term Note Department,
telecopier: ▇▇▇-▇▇▇-▇▇▇▇; if to the Trustee, to ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, telecopier (▇▇▇) ▇▇▇-▇▇▇▇.
Settlement: The receipt by the Company of immediately available
funds in exchange for an authenticated Certificated
Note delivered to the relevant Agent and such Agent's
delivery of such Note against receipt of immediately
available funds shall constitute "settlement" with
respect to such Note. All offers accepted by the
Company will be settled on the third business day
next succeeding the date of acceptance pursuant to
the timetable for settlement set forth below, unless
the Company and the purchaser agree to settlement on
another date, which date shall be no earlier than the
next Business Day.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note sold by the Company to or through
an Agent (unless otherwise specified pursuant to a
Purchase Agreement) shall be as follows:
(A) The relevant Agent will advise the Company
by telephone that such Note is a
Certificated Note and of the following
settlement information:
(vii) Name in which such Note is to be
registered ("Registered Owner").
13
(viii) Address of the Registered Owner and
address for payment of principal
and interest.
(ix) Taxpayer identification number of
the Registered Owner (if
available).
(x) Principal amount.
(xi) Maturity Date.
(xii) In the case of a Fixed Rate
Certificated Note, the Interest
Rate, whether such Note will pay
interest annually or semiannually
and whether such Note is an
amortizing note and, if so, the
amortization schedule, or, in the
case of a Floating Rate
Certificated Note, the initial
interest rate (if known at such
time), interest payment date(s),
interest payment period,
calculation agent, base rate, index
maturity, interest reset period,
initial interest reset date,
interest reset dates, spread or
spread multiplier (if any), minimum
interest rate (if any), maximum
interest rate (if any) and the
alternate rate event spread (if
any).
(xiii) Redemption and/or repayment
provisions (if any).
(xiv) Settlement date and time (original
issue date).
(xv) Interest accrual date.
(xvi) Price.
(xvii) Agent's commission (if any)
determined as provided in the
Distribution Agreement.
(xviii) Denominations.
(xix) Specified currency.
(xx) Whether the Note is an OID Note,
and if it is an OID Note, the total
amount of OID, the yield to
maturity, the initial accrual
period OID and the applicability of
modified payment upon
14
acceleration (and if so, the issue
price).
(xxi) Whether the Note is a
Currency-linked Note, and if it is
a Currency-linked Note, the
denominated currency, currency or
currencies to which the principal
amount payable on any principal
payment is linked or indexed, the
payment currency, the exchange rate
agent, the reference dealers, the
face amount, the fixed amount of
each indexed currency, the
aggregate fixed amount of each
indexed currency and the authorized
denominations (if other than U.S.
dollars).
(xxii) Whether the Note is a renewable
note, and if it is a renewable
note, the initial maturity date and
the final maturity date.
(xxiii) Whether the Company has the option
to extend the scheduled maturity
date of the Note, and, if so, the
final maturity date of such Note.
(xxiv) Whether the Company has the option
to reset the interest rate, the
spread or the spread multiplier of
the Note.
(xxv) Any other applicable terms.
(B) The Company will advise the Trustee by
telephone, facsimile or e-mail (confirmed in
writing at any time on the same date) of the
information set forth in Settlement
Procedure "A" above.
(C) The Company will have delivered to the
Trustee a pre-printed four-ply packet for
such Note, which packet will contain the
following documents in forms that have been
approved by the Company, the relevant Agent
and the Trustee:
(xxvi) Note with customer confirmation.
(xxvii) Stub One - For the Trustee.
(xxviii) Stub Two - For the relevant Agent.
15
(xxix) Stub Three - For the Company.
(D) The Trustee will complete such Note and
authenticate such Note and deliver it (with
the confirmation) and Stubs One and Two to
the relevant Agent, and such Agent will
acknowledge receipt of the Note by stamping
or otherwise marking Stub One and returning
it to the Trustee. Such delivery will be
made only against such acknowledgment of
receipt and evidence that instructions have
been given by such Agent for payment to the
account of the Company at Wachovia Bank,
N.A., Winston-Salem, North Carolina,
ABA#▇▇▇▇▇▇▇▇▇ and account #▇▇▇▇▇▇▇▇▇▇, or to
such other account as the Company shall have
specified to such Agent and the Trustee, in
immediately available funds, of an amount
equal to the price of such Note less such
Agent's commission (if any). In the event
that the instructions given by such Agent
for payment to the account of the Company
are revoked, the Company will as promptly as
possible wire transfer to the account of
such Agent an amount of immediately
available funds equal to the amount of such
payment made.
(E) Unless the relevant Agent is the end
purchaser of such Note, such Agent will
deliver such Note (with confirmation) to the
customer against payment in immediately
available funds. Such Agent will obtain the
acknowledgment of receipt of such Note by
retaining Stub Two.
(F) The Trustee will send Stub Three to the
Company by first-class mail. Monthly, the
Trustee will also send to the Company a
statement setting forth the principal amount
of the Notes outstanding as of that date
under the Indenture and setting forth a
brief description of any sales of which the
Company has advised the Trustee that have
not yet been settled.
Settlement Procedures For sales by the Company of Certificated Notes to or
Timetable: through an Agent (unless otherwise specified pursuant
to a Purchase Agreement), Settlement Procedures "A"
through "F" set forth above shall be completed on or
before the respective times in New York City set
forth below:
16
Settlement
Procedure Time
--------- ----
A 2:00 P.M. on day before settlement date
B 3:00 P.M. on day before settlement date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure to Settle: If the relevant Agent, at its own option, has
advanced its own funds for payment against subsequent
receipt of funds from the purchaser, and if the
purchaser shall fail to make payment for the
Certificated Note on the settlement date therefor,
the relevant Agent will promptly notify the Trustee
and the Company by telephone, promptly confirmed in
writing (but no later than the next Business Day). In
such event, the Company shall promptly provide the
Trustee with appropriate documentation and
instruction consistent with these procedures for the
return of the Certificated Note to the Trustee and
the relevant Agent will promptly return such Note to
the Trustee. Upon (i) confirmation from the Trustee
in writing (which may be given by telex or telecopy)
that the Trustee has received such Note and (ii)
confirmation from the relevant Agent in writing
(which may be given by telex or telecopy) that the
relevant Agent has not received payment from the
purchaser (the matters referred to in clauses (i) and
(ii) are referred to hereinafter as the
"Confirmations"), the Company will promptly pay to
the relevant Agent an amount in immediately available
funds equal to the amount previously paid by the
relevant Agent in respect of such Certificated Note.
Assuming receipt of the Certificated Note by the
Trustee and of the Confirmations by the Company, such
payment will be made on the settlement date, if
reasonably practical, and in any event not later than
the Business Day following the date of receipt of the
Certificated Note and Confirmations. If the failure
shall have occurred for any reason other than a
default by such Agent in the performance of its
obligations hereunder and under the Distribution
Agreement, the Company will reimburse the relevant
Agent on an equitable basis for its loss of the use
of funds during the period when they were credited to
the account of the Company. Immediately upon receipt
of the Certificated Note in respect of which the
failure occurred, the Trustee will void such
Certificated Note, make appropriate entries in its
records and destroy the
17
Certificated Note; and upon such action, the
Certificated Note will be deemed not to have been
issued, authenticated and delivered.
EXHIBIT C
PURCHASE AGREEMENT
Carolina Power & Light Company
Medium-term Notes, Series D
[DATE]
[insert name[s] and addresses of Agent[s]]
Ladies and Gentlemen:
Carolina Power & Light Company (the "Company") proposes, subject to the
terms and conditions stated herein and in the Distribution Agreement, dated June
30, 2000 (the "Distribution Agreement"), between the Company on the one hand and
Chase Securities Inc., First Union Securities, Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
and ▇.▇. ▇▇▇▇▇▇ Securities Inc. (the "Agents") on the other, to issue and sell
to [Name(s) of Agent(s)] the notes specified in the Schedule hereto (the
"Purchased Notes"). Each of the provisions of the Distribution Agreement not
specifically related to the solicitation by the Agents, as agents of the
Company, of offers to purchase Notes is incorporated herein by reference in its
entirety, and shall be deemed to be part of this Purchase Agreement to the same
extent as if such provisions had been set forth in full herein. Nothing
contained herein or in the Distribution Agreement shall make any party hereto an
agent of the Company or make such party subject to the provisions therein
relating to the solicitation of offers to purchase Notes from the Company,
solely by virtue of its execution of this Purchase Agreement. Each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Purchase Agreement,
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees to
issue and sell to [Name(s) of Agent(s)] and [Name(s) of Agent(s)] agree[s] to
purchase from the Company the Purchased Notes, at the time and place, in the
principal amount and at the purchase price set forth in the Schedule hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us [ ] counterparts hereof, and upon acceptance hereof by you this
letter and such acceptance hereof,
3
including those provisions of the Distribution Agreement incorporated herein by
reference, shall constitute a binding agreement among you and the Company.
Carolina Power & Light Company
By: __________________________
Name:
Title:
Accepted
[Name(s) of Agent(s)]
By: _____________________
Name:
Title:
Schedule Exhibit C
Title of Purchased Notes
[ %] Notes
Aggregate Principal Amount:
[$..........]
Price to Public:
Purchase Price by [Name(s) of Agent(s)]:
% of the principal amount of the Purchased Notes [, plus accrued
interest from ................. to .................] [and accrued amortization,
if any, from ............. to ................]
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the order of
the Company, in immediately available funds]
[By wire transfer to a bank account specified by the Company in
immediately available funds]
Time of Delivery:
Closing Location:
Maturity:
Interest Rate:
[ %]
Interest Payment Dates:
[months and dates]
Documents to be Delivered:
The following documents referred to in the Distribution Agreement shall
be delivered as a condition to the Closing:
[(1) The opinion or opinions of counsel to the Agents referred to in
Section 4(h).]
[(2) The opinion of counsel to the Company referred to in Sections
4(e), 4(f) and 4(g).]
[(3) The officers' certificate referred to in Section 4(j).]
[(4) The comfort letter referred to in Section 4(i).]
Other Provisions (including Syndicate Provisions, if applicable):
