Exhibit 1-D
CALCULATION AGENT AGREEMENT
THIS AGREEMENT dated as of September 1, 1998 between Duke Energy
Corporation (hereinafter called the "Issuer"), having its principal office at
000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, and The Chase
Manhattan Bank, a New York banking corporation (hereinafter sometimes called the
"Calculation Agent" which term shall, unless the context shall otherwise
require, include its successors and assigns), having its principal corporate
trust office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Recitals of the Issuer
The Issuer proposes to issue from time to time Senior Notes (the "Notes")
under a Senior Indenture dated as of September 1, 1998 (the "Indenture"),
between the Issuer and The Chase Manhattan Bank, as Trustee. Capitalized terms
used in this Agreement and not otherwise defined herein are used as defined in
the Indenture. Certain of the Notes may bear interest at one of several floating
rates determined by reference to an interest rate formula (the "Floating Rate
Notes") and the Issuer desires to engage the Calculation Agent to perform
certain services in connection therewith.
NOW IT IS HEREBY AGREED THAT:
1. The Issuer hereby appoints The Chase Manhattan Bank as Calculation
Agent for the Floating Rate Notes, upon the terms and subject to the
conditions herein mentioned, subject to the Issuer's right to designate a
different party as Calculation Agent in the Prospectus Supplement relating
to the Floating Rate Notes, and The Chase Manhattan Bank hereby accepts
such appointment. This appointment shall apply only to those series of
Floating Rate Notes for which no other Calculation Agent is designated in
the applicable Prospectus Supplement relating to the Floating Rate Notes
and the term "Floating Rate Notes" in this Agreement shall mean only
Floating Rate Notes as to which this appointment applies. Subject to the
foregoing, the Calculation Agent shall act as an agent of the Issuer for
the purpose of determining the interest rate or rates of the Floating Rate
Notes.
2. The Issuer agrees to deliver to the Calculation Agent, prior to
the issuance of any Floating Rate Notes, copies of the proposed forms of
such Notes, including copies of the terms and conditions relating to the
determination of the interest rate thereunder. The Issuer shall not issue
any Floating Rate Note prior to the receipt of confirmation from the
Calculation Agent of its acceptance of the proposed form of such Note.
3. The Issuer shall notify the Calculation Agent of the issuance of
any Floating Rate Notes prior to the issuance thereof and at the time of
such issuance shall deliver to the Calculation Agent the information
required to be provided by the Issuer for the calculation of the applicable
interest rates thereunder. The Calculation Agent shall calculate the
applicable interest rates for Floating Rate Notes in accordance with the
terms of such Notes, the Indenture and the provisions of this Agreement.
4. Upon the determination of an interest rate applicable to a
Floating Rate Note, the Calculation Agent shall promptly notify the Issuer,
the Trustee and any Paying Agent of such interest rate. Upon the request of
the holder of a Floating Rate Note, the Calculation Agent shall advise such
holder of the interest rate then in effect and, if different, the interest
rate which will become effective as a result of a determination already
made with respect to such Floating Rate Note.
5. The Issuer will pay such compensation as shall be agreed upon with
the Calculation Agent and the out-of-pocket expenses, including reasonable
counsel fees, incurred by the Calculation Agent in connection with its
duties hereunder, upon receipt of such invoices as the Issuer shall
reasonably require.
6. Notwithstanding any satisfaction or discharge of the Notes or the
Indenture, the Issuer will indemnify the Calculation Agent against any
losses, liabilities, costs, claims, actions or demands which it may incur
or sustain or which may be made against it in connection with its
appointment or the exercise of its powers and duties hereunder as well as
the reasonable costs, including the reasonable expenses and fees of counsel
in defending any claim, action or demand, except such as may result from
the gross negligence, wilful misconduct or bad faith of the Calculation
Agent or any of its employees or agents. The Calculation Agent shall give
the Issuer prompt notice of any such claim, action or demand known to it,
but failure to do so shall not affect the indemnity provided hereby. Except
as provided in the preceding sentence, the Calculation Agent shall incur no
liability and shall be indemnified and held harmless by the Issuer for, or
in respect of, any actions taken or suffered to be taken in good faith by
the Calculation Agent in reliance upon (i) the written opinion or advice of
counsel or (ii) written instructions from an officer of the Issuer.
7. The Calculation Agent accepts its obligations herein set forth
upon the terms and conditions hereof, including the following, to all of
which the Issuer agrees:
(i) in acting under this Agreement and in connection with the
Floating Rate Notes, the Calculation Agent, acting as agent for the
Issuer, does not assume any obligation toward, or any
2
relationship of agency or trust for or with, any of the holders of
such Floating Rate Notes;
(ii) unless herein otherwise specifically provided, any order,
certificate, notice, request or communication from the Issuer made or
given under any provisions of this Agreement shall be sufficient if
signed by any person whom the Calculation Agent reasonably believes
to be a duly authorized officer or attorney-in-fact of the Issuer;
(iii) the Calculation Agent shall be obligated to perform only
such duties as are set forth specifically herein, in the Floating
Rate Notes or in the Indenture and any duties necessarily incidental
thereto;
(iv) the Calculation Agent shall be protected and shall incur no
liability for or in respect of any action taken or omitted to be
taken or anything suffered by it in reliance upon any provision
contained in a Floating Rate Note, the Indenture or any information
supplied to it by an officer of the Issuer pursuant to this
Agreement, including the information to be supplied pursuant to
paragraph 3 above;
(v) the Calculation Agent, whether acting for itself or in any
other capacity, may become the owner or pledgee of Notes with the
same rights as it would have had if it were not acting hereunder as
Calculation Agent; and
(vi) the Calculation Agent shall incur no liability hereunder
except for loss sustained by reason of its or its employees' or
agents' gross negligence, wilful misconduct or bad faith.
8. (a) The Issuer agrees to notify the Calculation Agent at least
three Business Days prior to the issuance of any Floating Rate Note with an
interest rate to be determined by any formula that would require the
Calculation Agent to select banks or other financial institutions (the
"Reference Banks") for purposes of quoting rates. Immediately prior to
seeking such quotes from such Reference Banks, the Calculation Agent will
notify the Issuer and the Trustee of the names and addresses of such
Reference Banks. The Calculation Agent shall not be responsible to the
Issuer or any third party for any failure of the Reference Banks to fulfill
their duties or meet their obligations as Reference Banks or as a result of
the Calculation Agent having acted (except in the event of gross
negligence, wilful misconduct or bad faith) on any quotation or other
information given by any Reference Bank which subsequently may be found to
be incorrect.
3
(b) Except as provided below, the Calculation Agent may at any
time resign as Calculation Agent by giving written notice to the Issuer and
the Trustee of such intention on its part, specifying the date on which its
desired resignation shall become effective, provided that such notice shall
be given not less than 60 days prior to the said effective date unless the
Issuer agrees in writing. The Calculation Agent may be removed by the
filing with it and the Trustee of an instrument in writing signed by the
Issuer specifying such removal and the date when it shall become effective.
Any resignation or removal of the Calculation Agent shall take effect only
upon:
(i) the appointment by the Issuer as hereinafter provided of a
successor Calculation Agent; and
(ii) the acceptance of such appointment by such successor
Calculation Agent; provided, however, that in the event the Calculation
Agent has given not less than 60 days' prior notice of its desired
resignation, and during such 60 days there has not been acceptance by a
successor Calculation Agent of its appointment as successor Calculation
Agent, the Calculation Agent so resigning may petition any court of
competent jurisdiction for the appointment of a successor Calculation
Agent. The Issuer covenants that it shall appoint a successor Calculation
Agent as soon as practicable after receipt of any notice of resignation
hereunder. Upon its resignation or removal becoming effective, the retiring
Calculation Agent shall be entitled to the payment of all compensation and
the reimbursement of its expenses (including reasonable counsel fees)
incurred by such retiring Calculation Agent, in accordance with paragraph 5
hereof, to the date such resignation or removal becomes effective.
(c) If at any time the Calculation Agent shall resign or be
removed, or shall become incapable of acting or shall be adjudged bankrupt
or insolvent, or liquidated or dissolved, or an order is made or an
effective resolution is passed to wind up the Calculation Agent, or if the
Calculation Agent shall file a voluntary petition in bankruptcy or make an
assignment for the benefit of its creditors, or shall consent to the
appointment of a receiver, administrator or other similar official of all
or any substantial part of its property, or shall admit in writing its
inability to pay or meet its debts as they mature, or if a receiver,
administrator or other similar official of the Calculation Agent or of all
or any substantial part of its property shall be appointed, or if any order
of any court shall be entered approving any petition filed by or against
the Calculation Agent under the provisions of any applicable bankruptcy or
insolvency law, or if any public officer
4
shall take charge or control of the Calculation Agent or its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then a successor Calculation Agent shall be appointed by the Issuer by an
instrument in writing filed with the predecessor Calculation Agent, the
successor Calculation Agent and the Trustee. Upon the appointment as
aforesaid of a successor Calculation Agent and acceptance by the latter of
such appointment the former Calculation Agent shall cease to be Calculation
Agent hereunder.
(d) Any successor Calculation Agent appointed hereunder shall
execute and deliver to its predecessor, the Issuer and the Trustee an
instrument accepting such appointment hereunder, and thereupon such
successor Calculation Agent, without any further act, deed or conveyance,
shall become vested with all the authority, rights, powers, immunities,
duties and obligations of such predecessor with like effect as if
originally named as the Calculation Agent hereunder, and such predecessor
shall thereupon become obliged to transfer and deliver, and such successor
Calculation Agent shall be entitled to receive, copies of any relevant
records maintained by such predecessor Calculation Agent.
(e) Any corporation into which the Calculation Agent may be
merged or converted or any corporation with which the Calculation Agent may
be consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Calculation Agent shall be a party shall, to the
extent permitted by applicable law, be the successor Calculation Agent
under this Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto. Notice of any such
merger, conversion or consolidation shall forthwith be given to the Issuer
and the Trustee.
(f) The provisions of paragraph 6 hereof shall survive any
resignation or removal hereunder.
9. Any notice required to be given hereunder shall be delivered in person
against written receipt, sent by letter or telecopy or communicated by
telephone (subject, in the case of communication by telephone, to confirmation
dispatched within two Business Days by letter or telecopy), in the case of the
Issuer, to it at the address set forth in the heading of this Agreement,
Attention: Treasurer; in the case of the Calculation Agent, to it at the
address set forth in the heading of this Agreement, Attention: Global Trust
Services; in the case of the Trustee, to it at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Global Trust Services; or, in any case,
5
to any other address of which the party receiving notice shall have notified
the party giving such notice in writing.
10. This Agreement may be amended only by a writing duly executed and
delivered by each of the parties signing below.
11. The provisions of this Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
12. This Agreement may be executed in counterparts and the executed
counterparts shall together constitute a single instrument.
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of
the day and year first above written.
DUKE ENERGY CORPORATION
By:
-------------------------------
Title:
THE CHASE MANHATTAN BANK
By:
-------------------------------
Title:
6
