CALCULATION AGENCY AGREEMENT
BETWEEN
CAROLINA POWER & LIGHT COMPANY
AND
THE CHASE MANHATTAN BANK
Dated as of October 28, 1999
CAROLINA POWER & LIGHT COMPANY, a North Carolina corporation (the
"Company"), has authorized the issuance of $500,000,000 aggregate principal
amount of its Extendible Notes due October 28, 2009 (the "Notes").
The Company proposes to issue the Notes under and pursuant to the terms
of its Indenture (For Debt Securities) (the "Indenture"), dated as of October
28, 1999, between the Company and The Chase Manhattan Bank, in its capacity as
trustee (the "Trustee") and the Officer's Certificate, dated as of October 28,
1999, relating to the Notes (the "Officer's Certificate"), a copy of which is
attached hereto.
Capitalized terms used and not otherwise defined herein shall have the
meanings given to them in the Indenture, as supplemented by the Officer's
Certificate and the Notes.
As more particularly set forth in the Officer's Certificate, the Notes
are to bear interest (i) during the Initial Spread Period at a rate that will be
reset monthly equal to the one month LIBOR plus a spread of .33%, and (ii)
during each Subsequent Spread Period, either at a floating interest rate or at a
fixed interest rate.
For the purpose of providing for an agent of the Company (in such
capacity, the "Rate Agent") to calculate the LIBOR and the interest rate
applicable to the Notes in the event that the Notes are in Floating Rate Mode,
as specified and described in the Officer's Certificate, the Company and The
Chase Manhattan Bank, a banking corporation organized under the laws of the
State of New York, hereby agree as follows:
Section 1. Appointment of Rate Agent. The Company hereby appoints The
Chase Manhattan Bank as rate agent (the "Rate Agent") of the Company with
respect to the Notes when such Notes are in Floating Rate Mode, and the Rate
Agent hereby accepts its appointment in such capacity and its obligations as set
forth in this Agreement upon the terms and conditions set forth herein.
Section 2. Calculation of LIBOR and Interest Rate and Other Duties of
the Rate Agent. If the Notes are reset to the Floating Rate Mode for a
Subsequent Spread Period, as determined by the Company and the Remarketing Agent
pursuant to the Officer's Certificate and
the Notes, the Rate Agent shall determine LIBOR and the interest rate on the
Notes for any Interest Reset Period in the manner set forth in the Officer's
Certificate. The Company shall (a) promptly following each Duration/Mode
Determination Date, notify the Rate Agent whether the Notes will be reset to the
Floating Rate Mode during the ensuing Subsequent Spread Period and, if the Notes
are to be reset to the Floating Rate Mode during such Subsequent Spread Period,
the first day of the Subsequent Spread Period and all other terms (other than
the applicable Spread) to be applicable to the Notes during such Subsequent
Spread Period, and (b) promptly following the Spread Determination Date, notify
the Rate Agent of the Spread applicable during the next ensuing Subsequent
Spread Period. The Rate Agent shall notify the Company, the Trustee (unless the
Rate Agent also then serves as the Trustee) and The Depository Trust Company (if
the Notes are then held in global form and The Depository Trust Company is
depository) of such LIBOR and interest rate as soon as practicable after the
determination thereof but in no event later than the second Business Day of the
relevant Interest Reset Period. The Rate Agent shall perform such other actions
and undertake such other duties of the Rate Agent as are expressly set forth in
the Officer's Certificate to be performed or undertaken by the Rate Agent,
including but not limited to providing investors, upon request, with LIBOR and
interest rate on the Notes for the then current and preceding Interest Reset
Periods.
Section 3. Fees and Expenses. The Rate Agent shall be entitled to such
compensation for its services under this Agreement as may be agreed upon with
the Company annually, and the Company shall pay such compensation and shall
reimburse the Rate Agent for all reasonable expenses and disbursements incurred
or made by the Rate Agent in connection with the services rendered by it under
this Agreement (including legal fees and expenses).
Section 4. Rights and Liabilities of Rate Agent. All certificates,
communications, opinions, determinations, calculations, quotations and decisions
given, expressed, made or obtained for the purposes of this Agreement or the
provisions of the Officer's Certificate relating to the calculation and payment
of interest on the Notes, whether by the reference banks (or any of them) or the
Rate Agent, will (in the absence of gross negligence, willful default or bad
faith) be binding on the Company, the Trustee, the Rate Agent and all of the
Holders of the Notes, and no liability will (in the absence of gross negligence,
willful default or bad faith) attach to the Rate Agent in connection with the
exercise or non-exercise by it of its power, duties and discretion under,
pursuant to, or as permitted by any provision of this Agreement or the Officer's
Certificate. The Rate Agent shall not have any liability to any person for (i)
any error resulting from the use of or reliance on a source or publication
required to be used pursuant to this Agreement, the Officer's Certificate or the
Notes, (ii) any error in judgment made in good faith by a responsible officer or
officers of the Rate Agent unless the Rate Agent was grossly negligent or acting
in bad faith in ascertaining the pertinent facts, (iii) the selection of the
reference banks, or (iv) any inability of the Rate Agent to obtain quotations
from the reference banks which is caused by circumstances beyond its control.
The Rate Agent shall incur no liability for, or in respect of, any action taken,
omitted to be taken or suffered by it in reliance upon any certificate,
affidavit, instruction, notice, request, direction, order, statement or other
paper, document or communication it reasonably believed in good faith to be
genuine. Any order, certificate, affidavit, instruction, notice, request,
direction, statement or other communication from or on behalf of the Company
made or given by it and sent, delivered or
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directed to the Rate Agent under, pursuant to, or as permitted by any provision
of this Agreement or the Officer's Certificate, shall be sufficient for purposes
of this Agreement if such communication is in writing and signed by any officer
of the Company. The Rate Agent may consult with counsel satisfactory to it; and
the opinion of such counsel shall constitute full and complete authorization and
protection of the Rate Agent with respect to any action taken, omitted to be
taken or suffered by it hereunder in good faith and in accordance with and in
reliance upon the opinion of such counsel.
IN ACTING UNDER THIS AGREEMENT AND IN CONNECTION WITH THE NOTES, THE
RATE AGENT IS ACTING SOLELY AS AGENT OF THE COMPANY; AND IN ACTING UNDER THIS
AGREEMENT, THE RATE AGENT (IN ITS CAPACITY AS SUCH) DOES NOT ASSUME ANY
OBLIGATION TOWARDS, OR ANY RELATIONSHIP OF AGENCY OR TRUST FOR OR WITH, ANY OF
THE OWNERS OR HOLDERS OF THE NOTES.
Section 5. Duties of Rate Agent. The Rate Agent, in its capacity as
such, shall be obligated to perform only such duties as are specifically set
forth herein or in the form of Notes pursuant or in the Officer's Certificate
provided to the Rate Agent, if any; and no other duties or obligations on the
part of the Rate Agent, in its capacity as such, shall be implied by this
Agreement or by reference herein to any other document or instrument.
Section 6. Termination, Resignation or Removal of Rate Agent. The Rate
Agent may at any time resign and terminate its service under this Agreement by
giving no less than 60 days written notice to the Company unless the Company
consents in writing to a shorter time. Upon receipt of notice of termination by
the Rate Agent, the Company agrees to use reasonable efforts to promptly to
appoint a successor Rate Agent. The Company may terminate this Agreement or
remove the currently serving Rate Agent and appoint a successor Rate Agent by
giving no less than 60 days written notice to the Rate Agent unless the Rate
Agent consents in writing to shorter time; provided, however, that only 15 days
prior written notice shall be required if the Company elects to remove the
currently serving Rate Agent due to (i) a default in the performance of its
obligations hereunder or (ii) an inability to reach an agreement with regard to
the Rate Agent's compensation under Section 3 of this Agreement. Notwithstanding
the foregoing, no resignation or removal of the Rate Agent shall become
effective prior to the date of the appointment by the Company, as provided in
Section 7 hereof, of a successor Rate Agent and the acceptance of such
appointment by such successor Rate Agent. Upon termination by either party
hereto pursuant to the provisions of this Section or the resignation or removal
of the then serving Rate Agent, the Rate Agent shall be entitled to the payment
of any compensation owed to it by the Company hereunder and to the reimbursement
of all reasonable expenses and disbursements incurred or made by the Rate Agent
in connection with the service rendered by it hereunder, as provided by Section
3 hereof. Notwithstanding any resignation or removal of the Rate Agent or
termination of this Agreement for any reason, the provisions of Section 8 hereof
shall remain in effect following such termination or, in the case of the
resignation or removal of the then serving Rate Agent, in favor of the resigning
or removed Rate Agent following such resignation or removal.
Section 7. Appointment of Successor Rate Agent. Any successor Rate
Agent appointed by the Company following termination of this Agreement pursuant
to the provisions of Section 6 hereof shall execute and deliver to the Rate
Agent and to the Company an instrument
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accepting such appointment; and thereupon, (i) such successor Rate Agent shall,
without any further act or instrument become vested with all the rights,
immunities, duties and obligations of the Rate Agent under this Agreement, with
like effect as if originally named hereunder, (ii) the resigning or removed Rate
Agent shall be obligated and authorized to transfer and deliver, and the
successor Rate Agent appointed by the Company shall be entitled to receive and
accept, copies of any available records maintained by the Rate Agent in
connection with the performance of its obligations hereunder, and (iii) the
resigning or removed Rate Agent shall be released from any further
responsibility to act as Rate Agent under this Agreement.
Section 8. Indemnification. The Company shall:
(a) indemnify, defend and hold harmless the Rate Agent and its
directors, officers, agents and employees (collectively, the
"Indemnitees") harmless from and against any and all claims,
liabilities, losses, damages, fines, penalties, taxes (other than taxes
on the income of the Rate Agent) and expenses, including out-of-pocket
and incidental expenses and legal fees (including the allocated costs
and expenses of in-house counsel and legal staff) ("Losses") that may
be imposed on, incurred by, or asserted against, the Indemnitees or any
of them for following any instructions or other directions upon which
the Rate Agent is authorized to rely pursuant to the terms of this
Agreement, the Officer's Certificate or the Notes; and
(b) in addition to and not in limitation of clause (a) above
of this Section, indemnify, defend and hold harmless the Indemnitees
and each of them from and against any and all Losses that may be
imposed on, incurred by, or asserted against, the Indemnitees or any of
them in connection with or arising out of the exercise or performance
by the Rate Agent of any of its powers or duties under this Agreement,
the Officers' Certificate or the Notes, provided that the Indemnitees
have not acted with gross negligence or in bad faith or engaged in
willful misconduct.
In connection with any actual or alleged Losses under either (a) or
(b) above, the Company shall undertake the defense of any such matter with
counsel acceptable to the Rate Agent, and provided that the Rate Agent shall be
entitled, at its option, to employ separate counsel in connection with any such
matter and to participate in the defense of such matter, but the fees and
expenses of such separate Rate Agent counsel shall be at the Rate Agent's own
expense.
Section 9. Merger, Consolidation or Sale of Business by Rate Agent. Any
Person into which the Rate Agent may be merged, converted, or consolidated, or
any Person resulting from any merger, conversion or consolidation to which the
Rate Agent may be a party, or any Person to which the Rate Agent may sell or
otherwise transfer all or substantially all of its corporate trust business,
shall, to the extent permitted by applicable law, become the Rate Agent under
this Agreement without the execution of any paper or any further act by the
parties hereto. The Rate Agent will give prompt notice of any such merger,
consolidation or sale to the Company.
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Section 10. Notices. Any notice or other communication given hereunder
shall be delivered in person, or sent by letter or telecopy to the address given
below or such other address as the party to receive such notice may have
previously specified pursuant to notice given in accordance with this Section:
To the Company:
Carolina Power & Light Company
000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxx, Treasurer
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
To the Rate Agent:
The Chase Manhattan Bank
c/o Chase National Corporate Services, Inc.
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Any notice or other communication hereunder given by letter or telecopy shall be
deemed to have been made, given, furnished, and filed upon receipt.
The parties may, by notice given to the other party as specified above,
designate other or different addresses, telecopy numbers or telephone numbers to
which subsequent notices, requests, reports or other communications shall be
directed.
Section 11. Benefit of Agreement. Except as provided herein, this
Agreement is solely for the benefit of the parties hereto and their respective
successors and assigns and no other person shall acquire or have any rights
under or by virtue hereof other than, solely for purposes of Section 8 hereof,
the directors, officers, agents and employees of the Rate Agent.
Section 12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
Section 13. Severability. If any provision of this Agreement shall be
held or deemed to be or shall, in fact, be invalid, inoperative or unenforceable
as applied in any particular case in any jurisdiction or jurisdictions, or in
all jurisdictions because it conflicts with any provisions or
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any constitution, statute or rule of public policy, or for any other reason,
such circumstances shall not have the effect of rendering any other provision or
provisions of this Agreement invalid, inoperative or unenforceable in any other
case or circumstances, or of rendering any other provision or provisions of this
Agreement invalid, inoperative or unenforceable to any extent whatsoever.
Section 14. Amendments, Etc. The terms of this Agreement shall not be
waived, altered, modified, amended or supplemented in any manner whatsoever
except by written instrument signed by the parties hereto.
Section 15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
Section 16. The Rate Agent, in its individual or any other capacity,
may buy, sell, hold and deal in any of the Notes. Additionally, the Rate Agent
may exercise any vote or join in any action which any beneficial owners of Notes
may be entitled to exercise or take with like effect as if it did not act in any
capacity under the Calculation Agency Agreement. The Rate Agent, in its
individual capacity, either as principal or agent, may also engage in or have an
interest in any financial or other transaction with the Company as freely as if
it did not act in any capacity under the Calculation Agency Agreement.
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IN WITNESS WHEREOF, this Agreement has been entered into the day and
year first above written.
CAROLINA POWER & LIGHT COMPANY
By: /s/ XXXX X. XXXXXXX
----------------------------------
Xxxx X. Xxxxxxx
Vice President and Treasurer
THE CHASE MANHATTAN BANK
By: /s/ XXXXX XXXXX
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Xxxxx Xxxxx
Authorized Representative
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