FLORIDA POWER CORPORATION d/b/a PROGRESS ENERGY FLORIDA, INC. Series A Floating Rate Senior Notes due 2008 UNDERWRITING AGREEMENT
Exhibit 1
FLORIDA POWER CORPORATION
d/b/a PROGRESS ENERGY FLORIDA, INC.
d/b/a PROGRESS ENERGY FLORIDA, INC.
Series A Floating Rate Senior Notes due 2008
December 7, 2005
To the Representative named in Schedule I hereto
of the Underwriters named in Section 1 herein
of the Underwriters named in Section 1 herein
Dear Ladies and Gentlemen:
The undersigned Florida Power Corporation d/b/a Progress Energy Florida, Inc. (the “Company”)
hereby confirms its agreement with each of the several Underwriters hereinafter named as follows:
1. Underwriters and Representative. The term “Underwriters” as used in this Agreement
(the “Agreement”) shall be deemed to mean the following firms, and any underwriter substituted as
provided in paragraph 6, and the term “Underwriter” shall be deemed to mean any one of such
Underwriters:
Barclays Capital Inc.
Xxxxxx Brothers Inc.
BNP Paribas Securities Corp.
Calyon Securities (USA) Inc.
SunTrust Capital Markets, Inc.
UBS Securities LLC
Deutsche Bank Securities Inc.
Mellon Financial Markets, LLC
Xxxxxx Brothers Inc.
BNP Paribas Securities Corp.
Calyon Securities (USA) Inc.
SunTrust Capital Markets, Inc.
UBS Securities LLC
Deutsche Bank Securities Inc.
Mellon Financial Markets, LLC
If the firm or firms listed as Representatives in Schedule I hereto (individually and collectively,
the “Representative”) are the only firm or firms serving as underwriters, then the terms
“Underwriters” and “Representative,” as used herein, shall each be deemed to refer to such firm or
firms. Each Representative represents jointly and severally that they have been authorized by the
Underwriters to execute this Agreement on their behalf and to act for them in the manner herein
provided. All obligations of the Underwriters hereunder are several and not joint. If more than
one firm is named as Representative in Schedule I hereto, any action under or in respect of this
Agreement may be taken by such firms jointly as the Representative or by one of the firms acting on
behalf of the Representative, and such action will be binding upon all the Underwriters.
2. Description of Securities. The Company proposes to issue and sell its debt
securities of the designation, with the terms and in the amount specified in Schedule I hereto (the
“Securities”) under a governing indenture dated as of December 7, 2005 (the “Base Indenture”)
between the Company and X.X. Xxxxxx Trust Company, National Association, as trustee (the “Trustee”)
as supplemented and amended by an officer’s certificate dated as of December 13,
2005 (the “Officer’s Certificate”; and the Base Indenture as so supplemented, the “Indenture”)
in substantially the form heretofore delivered to the Representative.
3. Representations and Warranties of the Company. The Company represents and warrants
to each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (No. 333-103974) (the “New Registration
Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), for the
registration of up to an aggregate of $1,000,000,000 principal amount of First Mortgage
Bonds and Debt Securities in unallocated amounts. The New Registration Statement also
constituted post-effective amendment No. 1 to a registration statement on Form S-3 (No.
333-63204) (the “Post-Effective Amendment” and together with the New Registration Statement,
the “Registration Statement”) under the Securities Act relating to an aggregate amount of
$50,000,000 principal amount of the Company’s securities, which had been previously
registered under the Securities Act but remained unsold at the time the Post-Effective
Amendment became effective. The Registration Statement contained a combined prospectus for
the sale of up to an aggregate of $1,050,000,000 principal amount of the Companies First
Mortgage Bonds and Debt Securities (the “Registered Securities”). The Registration
Statement was declared effective by the Commission on April 4, 2003. As of the date hereof,
the Company has sold $600,000,000 aggregate principal amount of Registered Securities. The
term “Registration Statement” shall be deemed to include all amendments to the date hereof
and all documents incorporated by reference therein (the “Incorporated Documents”). The
base prospectus filed as part of the Registration Statement, in the form in which it has
most recently been filed with the Commission prior to the date of this Agreement, is
hereinafter called the “Basic Prospectus.” The Basic Prospectus included in the
Registration Statement, as supplemented by a preliminary prospectus supplement, dated
December 7, 2005, relating to the Securities, and all prior amendments or supplements
thereto (other than amendments or supplements relating to the Registered Securities other
than the Securities), including the Incorporated Documents, is hereinafter referred to as
the “Preliminary Prospectus.” The Preliminary Prospectus, as amended and supplemented,
including the Incorporated Documents, at or immediately prior to the Applicable Time (as
defined below) is hereinafter called the “Pricing Prospectus.” The Basic Prospectus
included in the Registration Statement, as it is to be supplemented by a prospectus
supplement, dated on the date hereof, substantially in the form delivered to the
Representative prior to the execution hereof, relating to the Securities (the “Prospectus
Supplement”) and all prior amendments or supplements thereto (other than amendments or
supplements relating to securities of the Company other than the Securities), including the
Incorporated Documents, is hereinafter referred to as the “Prospectus.” Any reference
herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration
Statement or the Prospectus shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement relating to the
Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act and
the filing of any document under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), deemed to be incorporated therein after the date hereof and prior to the
termination of the offering of the Securities by the Underwriters; and any
references herein to the terms “Registration Statement” or “Prospectus” at a date after
the filing of the Prospectus Supplement shall be deemed to refer to the Registration
Statement or the Prospectus, as the case may be, as each may be amended or supplemented
prior to such date.
For purposes of this Agreement, the “Applicable Time” is 1:00 p.m. (NY Time) on the
date of this Agreement; the documents listed in Schedule II, taken together, are
collectively referred to as the “Pricing Disclosure Package.”
(b) The Registration Statement, at the time and date it was declared effective by the
Commission, complied, and the Registration Statement, the Prospectus and the Indenture, as
of the date hereof and at the Closing Date, will comply, in all material respects, with the
applicable provisions of the Securities Act and the Trust Indenture Act of 1939, as amended
(the “1939 Act”), and the applicable instructions, rules and regulations of the Commission
thereunder; the Registration Statement, at the time and date it was declared effective by
the Commission, did not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading; the Pricing Disclosure Package as of the Applicable Time did not contain an
untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made,
not misleading; and the Prospectus, as of its date and at the Closing Date, will not contain
an untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the foregoing representations and warranties
in this subparagraph (b) shall not apply to statements or omissions made in reliance upon
and in conformity with information furnished herein or in writing to the Company by the
Representative or by or on behalf of any Underwriter through the Representative expressly
for use in the Prospectus or to any statements in or omissions from the Statement of
Eligibility (“Form T-1”) of the Trustee. The Incorporated Documents, at the time they were
each filed with the Commission, complied in all material respects with the applicable
requirements of the Exchange Act and the instructions, rules and regulations of the
Commission thereunder, and any documents so filed and incorporated by reference subsequent
to the date hereof and prior to the termination of the offering of the Securities by the
Underwriters will, at the time they are each filed with the Commission, comply in all
material respects with the requirements of the Exchange Act and the instructions, rules and
regulations of the Commission thereunder; and, when read together with the Registration
Statement, the Pricing Prospectus, the Permitted Free Writing Prospectuses (as defined in
Section 5(a)) and the Prospectus, none of such documents included or includes or will
include any untrue statement of a material fact or omitted or omits or will omit to state
any material fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading. Each
Permitted Free Writing Prospectus listed on Schedule II does not conflict in any material
respect with the information contained in the Registration Statement, the Pricing Prospectus
or the Prospectus.
(c) The Company has been incorporated, is validly existing as a corporation and its
status is active under the laws of the State of Florida; has 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 is duly qualified as a
foreign corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify would not have a
material adverse effect on the business, properties, results of operations or financial
condition of the Company.
(d) The historical financial statements incorporated by reference in the Registration
Statement, the Pricing Prospectus and the Prospectus present fairly the financial condition
and operations of the Company at the respective dates or for the respective periods to which
they apply; such financial statements have been prepared in each case in accordance with
generally accepted accounting principles consistently applied throughout the periods
involved, except that the quarterly financial statements incorporated by reference from any
Quarterly Reports on Form 10-Q contain condensed footnotes prepared in accordance with
applicable Exchange Act rules and regulations; and any accounting firms that have audited
any of the financial statements are independent registered public accounting firms 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
Pricing Prospectus, since the respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, and prior to the Closing Date, (i) there
has not been any material adverse change in the business, properties, results of operations
or financial condition of the Company, (ii) there has not been any material transaction
entered into by the Company other than transactions contemplated by the Registration
Statement and the Pricing Prospectus or transactions arising in the ordinary course of
business and (iii) the Company has no material contingent obligation that is not disclosed
in the Registration Statement and the Pricing Prospectus that could likely result in a
material adverse change in the business, properties, results of operations or financial
condition of the Company.
(f) The Company has full power and authority to execute, deliver and perform its
obligations under this Agreement. The execution and delivery of this Agreement, the
consummation of the transactions herein contemplated and the fulfillment of the terms hereof
on the part of the Company to be fulfilled have been duly authorized by all necessary
corporate action of the Company in accordance with the provisions of its articles of
incorporation, as amended (the “Charter”), by-laws and applicable law.
(g) The consummation of the transactions herein contemplated and the fulfillment of the
terms hereof will not result in a breach of any of the terms or provisions of, or constitute
a default under, the Charter, the Company’s by-laws, applicable law or any indenture,
mortgage, deed of trust or other agreement or instrument to which the Company is now a party
or any judgment, order, writ or decree of any government or governmental authority or agency
or court having jurisdiction over the Company or any
of its assets, properties or operations that, in the case of any such breach or
default, would have a material adverse effect on the business, properties, results of
operations or financial condition of the Company.
(h) The Securities conform in all material respects to the description contained in the
Pricing Disclosure Package and the Prospectus.
(i) The Company has no subsidiaries that meet the definition of “significant
subsidiary” as defined in Section 210.1-02(w) of Regulation S-X promulgated under the
Securities Act.
(j) The Indenture (i) 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 (A) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and
(B) general principles of equity (regardless of whether such enforceability is considered in
a proceeding at law or in equity and except for the effect on enforceability of federal or
state law limiting, delaying or prohibiting the making of payments outside the United
States); and (ii) conforms in all material respects to the description thereof in the
Pricing Disclosure Package and the Prospectus. The Indenture has been qualified under the
1939 Act.
(k) The Securities have been duly authorized by the Company and, when authenticated in
the manner provided for in the Indenture and delivered against payment of the required
consideration therefor, will constitute valid and legally binding obligations of the
Company, entitled to the benefits of the Indenture enforceable against the Company in
accordance with its terms, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and
(ii) general principles of equity (regardless of whether such enforceability is considered
in a proceeding at law or in equity and except for the effect on enforceability of federal
or state law limiting, delaying or prohibiting the making of payments outside the United
States).
(l) The Company is not an “investment company” within the meaning of the Investment
Company Act of 1940, as amended (the “1940 Act”).
(m) Except as described in or contemplated by the Pricing Prospectus, there are no
pending actions, suits or proceedings (regulatory or otherwise) against or affecting the
Company or its properties that are likely in the aggregate to result in any material adverse
change in the business, properties, results of operations or financial condition of the
Company, or that are likely in the aggregate to materially and adversely affect the
Indenture, the Securities or the consummation of this Agreement or the transactions
contemplated herein or therein.
(n) No filing with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency is
necessary or required for the performance by the Company of its obligations hereunder
in connection with the offering, issuance or sale of the Securities hereunder or the
consummation of the transactions herein contemplated or for the due execution, delivery or
performance of the Indenture by the Company, except such as have already been made or
obtained or as may be required under the Securities Act or state securities laws and except
for the qualification of the Indenture under the 1939 Act.
4. Purchase and Sale. On the basis of the representations, warranties and covenants
herein contained, but subject to the terms and conditions herein set forth, the Company agrees to
sell to each of the Underwriters, severally and not jointly, and each such Underwriter agrees,
severally and not jointly, to purchase from the Company, the respective principal amount of
Securities set forth opposite the name of such Underwriter below at a purchase price of 99.65% of
the principal amount thereof:
| Underwriter | Principal Amount of Securities | |||
Barclays Capital Inc. |
$ | 146,250,000 | ||
Xxxxxx Brothers Inc. |
$ | 146,250,000 | ||
BNP Paribas Securities Corp. |
$ | 31,500,000 | ||
Calyon Securities (USA) Inc. |
$ | 31,500,000 | ||
SunTrust Capital Markets, Inc. |
$ | 31,500,000 | ||
UBS Securities LLC |
$ | 31,500,000 | ||
Deutsche Bank Securities Inc. |
$ | 22,500,000 | ||
Mellon Financial Markets, LLC |
$ | 9,000,000 | ||
Total |
$ | 450,000,000 | ||
The Underwriters agree to make promptly a bona fide public offering of the Securities to the public
for sale as set forth in the Prospectus, subject, however, to the terms and conditions of this
Agreement. The Underwriters agree that (i) no sales of the Securities will occur before investors
are presented with the information that is contained in the Pricing Disclosure Package and (ii)
such information that is presented to investors is consistent with the information that is
contained in the Pricing Disclosure Package.
5. Free Writing Prospectuses.
(a) The Company represents and agrees that, without the prior consent of the
Representative, it has not made and will not make any offer relating to the Securities that
would constitute a “free writing prospectus” as defined in Rule 405 under the Act, other
than a Permitted Free Writing Prospectus; each Underwriter represents and agrees that,
without the prior consent of the Company and the Representative, it has not made and will
not make any offer relating to the Securities that would constitute a “free writing
prospectus,” as defined in Rule 405 under the Act, other than a Permitted Free Writing
Prospectus or a free writing prospectus that is not required to be filed by the Company
pursuant to Rule 433 under the Securities Act (an “Underwriter Free Writing Prospectus”).
Any such free writing prospectus the use of which is consented to by the Company and the
Representative is referred to herein as a “Permitted Free Writing
Prospectus”. The only Permitted Free Writing Prospectus as of the time of this
Agreement is the pricing term sheet referred to in paragraph 5(b) below.
(b) The Company agrees to file a pricing term sheet, in the form of Schedule I hereto
and approved by the Representative pursuant to Rule 433(d) under the Securities Act within
the time period prescribed by such Rule.
(c) The Company and the Underwriters have complied and will comply with the
requirements of Rule 433 under the Securities Act applicable to any free writing prospectus,
including timely Commission filing where required and legending.
(d) The Company agrees that if at any time following issuance of a Permitted Free
Writing Prospectus any event occurred or occurs as a result of which such Permitted Free
Writing Prospectus would conflict in any material respect with the information in the
Registration Statement, the Pricing Prospectus or the Prospectus or include an untrue
statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in light of the circumstances then prevailing, not misleading, the
Company will give prompt notice thereof to the Representative and, if requested by the
Representative, will prepare and furnish without charge to each Underwriter a Permitted Free
Writing Prospectus or other document which will correct such conflict, statement or
omission; provided, however, that this representation and warranty shall not apply to any
statements or omissions in a Permitted Free Writing Prospectus made in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter through
the Representative, expressly for use therein.
6. Time and Place of Closing; Default of Underwriters.
(a) Payment for the Securities shall be made at the place, time and date specified in
Schedule I hereto against delivery of the Securities at the office of X.X. Xxxxxx Trust
Company, National Association, 0 Xxx Xxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000, or such other
place, time and date as the Representative and the Company may agree. The hour and date of
such delivery and payment are herein called the “Closing Date.” Payment for the Securities
shall be by wire transfer of immediately available funds against delivery to The Depository
Trust Company or to X.X. Xxxxxx Trust Company, National Association, as custodian for The
Depository Trust Company, in fully registered global form registered in the name of CEDE &
Co., as nominee for The Depository Trust Company, for the respective accounts specified by
the Representative not later than the close of business on the business day prior to the
Closing Date or such other date and time not later than the Closing Date as agreed by The
Depository Trust Company or X.X. Xxxxxx Trust Company, National Association. For the
purpose of expediting the checking of the certificates by the Representative, the Company
agrees to make the Securities available to the Representative not later than 10:00 A.M. New
York time, on the last full business day prior to the Closing Date at said office of X.X.
Xxxxxx Trust Company, National Association.
(b) If one or more Underwriters shall, for any reason other than a reason permitted
hereunder, fail to take up and pay for the principal amount of the Securities to be
purchased by such one or more Underwriters, the Company shall immediately notify the
Representative, and the non-defaulting Underwriters shall be obligated to take up and pay
for (in addition to the respective principal amount of the Securities set forth opposite
their respective names in Section 4) the principal amount of such Securities that such
defaulting Underwriter or Underwriters failed to take up and pay for, up to a principal
amount thereof equal to 10% of the principal amount of such Securities. Each non-defaulting
Underwriter shall do so on a pro-rata basis according to the amounts set forth opposite the
name of such non-defaulting Underwriter in Section 4, and such non-defaulting Underwriters
shall have the right, within 24 hours of receipt of such notice, either to take up and pay
for (in such proportion as may be agreed upon among them), or to substitute another
Underwriter or Underwriters, satisfactory to the Company, to take up and pay for the
remaining principal amount of the Securities that the defaulting Underwriter or Underwriters
agreed but failed to purchase. If any unpurchased Securities still remain, then the Company
or the Representative shall be entitled to an additional period of 24 hours within which to
procure another party or parties, members of the National Association of Securities Dealers,
Inc. (or if not members of such Association, who are not eligible for membership in said
Association and who agree (i) to make no sales within the United States, its territories or
its possessions or to persons who are citizens thereof or residents therein and (ii) in
making sales to comply with said Association’s Conduct Rules) and satisfactory to the
Company, to purchase or agree to purchase such unpurchased Securities on the terms herein
set forth. In any such case, either the Representative or the Company shall have the right
to postpone the Closing Date for a period not to exceed three full business days from the
date agreed upon in accordance with this paragraph 6, in order that the necessary changes in
the Registration Statement and Prospectus and any other documents and arrangements may be
effected. If (i) neither the non-defaulting Underwriters nor the Company has arranged for
the purchase of such unpurchased Securities by another party or parties as above provided
and (ii) the Company and the non-defaulting Underwriters have not mutually agreed to offer
and sell the Securities other than the unpurchased Securities, then this Agreement shall
terminate without any liability on the part of the Company or any Underwriter (other than an
Underwriter that shall have failed or refused, in accordance with the terms hereof, to
purchase and pay for the principal amount of the Securities that such Underwriter has agreed
to purchase as provided in paragraph 4 hereof), except as otherwise provided in paragraph 7
and paragraph 8 hereof.
7. Covenants of the Company. The Company covenants with each Underwriter that:
(a) As soon as reasonably possible after the execution and delivery of this Agreement,
the Company will file the Prospectus with the Commission pursuant to Rule 424 under the
Securities Act (“Rule 424”), setting forth, among other things, the necessary information
with respect to the terms of offering of the Securities and make any other required filings
pursuant to Rule 433 under the Securities Act. Upon request, the Company will promptly
deliver to the Representative and to counsel for the Underwriters, to the extent not
previously delivered, one fully executed copy or one conformed copy, certified by an officer
of the Company, of the Registration Statement, as
originally filed, and of all amendments thereto, if any, heretofore or hereafter made
(other than those relating solely to Registered Securities other than the Securities),
including any post-effective amendment (in each case including all exhibits filed therewith
and all documents incorporated therein not previously furnished to the Representative),
including signed copies of each consent and certificate included therein or filed as an
exhibit thereto, and will deliver to the Representative for distribution to the Underwriters
as many conformed copies of the foregoing (excluding the exhibits, but including all
documents incorporated therein) as the Representative may reasonably request. The Company
will also send to the Underwriters as soon as practicable after the date of this Agreement
and thereafter from time to time as many copies of the Prospectus and the Preliminary
Prospectus as the Representative may reasonably request for the purposes required by the
Securities Act.
(b) During such period (not exceeding nine months) after the commencement of the
offering of the Securities as the Underwriters may be required by law to deliver a
Prospectus, if any event relating to or affecting the Company, or of which the Company shall
be advised in writing by the Representative shall occur, which in the Company’s reasonable
opinion (after consultation with counsel for the Representative) should be set forth in a
supplement to or an amendment of the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances when it is delivered to a purchaser, or if it
is necessary to amend the Prospectus to comply with the Securities Act, the Company will
forthwith at its expense prepare and furnish to the Underwriters and dealers named by the
Representative a reasonable number of copies of a supplement or supplements or an amendment
or amendments to the Prospectus that will supplement or amend the Prospectus so that as
supplemented or amended it will comply with the Securities Act and will not contain any
untrue statement of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading. In case any Underwriter is required to deliver a
Prospectus after the expiration of nine months after the commencement of the offering of the
Securities, the Company, upon the request of the Representative, will furnish to the
Representative, at the expense of such Underwriter, a reasonable quantity of a supplemented
or amended prospectus, or supplements or amendments to the Prospectus, complying with
Section 10(a) of the Securities Act.
(c) The Company will make generally available to its security holders, as soon as
reasonably practicable, but in any event not later than 16 months after the end of the
fiscal quarter in which the filing of the Prospectus pursuant to Rule 424 occurs, an earning
statement (in form complying with the provisions of Section 11(a) of the Securities Act,
which need not be certified by independent public accountants) covering a period of twelve
months beginning not later than the first day of the Company’s fiscal quarter next following
the filing of the Prospectus pursuant to Rule 424.
(d) The Company will use its best efforts promptly to do and perform all things to be
done and performed by it hereunder prior to the Closing Date and to satisfy all conditions
precedent to the delivery by it of the Securities.
(e) The Company will advise the Representative, or the Representative’s counsel,
promptly of the filing of the Prospectus pursuant to Rule 424 and of any amendment or
supplement to the Prospectus or Registration Statement or of official notice of institution
of proceedings for, or the entry of, a stop order suspending the effectiveness of the
Registration Statement and, if such a stop order should be entered, use its best efforts to
obtain the prompt removal thereof.
(f) The Company will use its best efforts to qualify the Securities, as may be
required, for offer and sale under the Blue Sky or legal investment laws of such
jurisdictions as the Representative may designate, and will file and make in each year such
statements or reports as are or may be reasonably required by the laws of such
jurisdictions; provided, however, that the Company shall not be required to qualify as a
foreign corporation or dealer in securities, or to file any general consents to service of
process, under the laws of any jurisdiction.
(g) Prior to the termination of the offering of the Securities, the Company will not
file any amendment to the Registration Statement or supplement to the Pricing Prospectus or
the Prospectus which shall not have previously been furnished to the Representative or of
which the Representative shall not previously have been advised or to which the
Representative shall reasonably object in writing and which has not been approved by the
Underwriter(s) or their counsel acting on behalf of the Underwriters.
8. Payment of Expenses. The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including (i) the printing and filing of the Registration
Statement and the printing of this Agreement, (ii) the delivery of the Securities to the
Underwriters, (iii) the fees and disbursements of the Company’s counsel and accountants, (iv) the
expenses in connection with the qualification of the Securities under securities laws in accordance
with the provisions of paragraph 7(f) hereof, including filing fees and the fees and disbursements
of counsel for the Underwriters in connection therewith, such fees and disbursements not to exceed
$7,500, (v) the printing and delivery to the Underwriters of copies of the Registration Statement
and all amendments thereto, of the Preliminary Prospectus, any Permitted Free Writing Prospectus
and the Prospectus and any amendments or supplements thereto, (vi) the printing and delivery to the
Underwriters of copies of the Blue Sky Survey, and (vii) the preparation and execution by the
Company of the Indenture; and the Company will pay all taxes, if any (but not including any
transfer taxes), on the issue of the Securities. The fees and disbursements of Underwriters’
counsel shall be paid by the Underwriters (subject, however, to the provisions of this paragraph 8
requiring payment by the Company of fees and disbursements not to exceed $7,500); provided,
however, that if this Agreement is terminated in accordance with the provisions of paragraph 9, 10
or 12 hereof, the Company shall reimburse the Representative for the account of the Underwriters
for the fees and disbursements of Underwriters’ counsel. The Company shall not be required to pay
any amount for any expenses of the Representative or of any other of the Underwriters except as
provided in paragraph 7 hereof and in this paragraph 8. The Company shall not in any event be
liable to any of the Underwriters for damages on account of the loss of anticipated profit.
9. Conditions of Underwriters’ Obligations. The several obligations of the
Underwriters to purchase and pay for the Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company as of the date hereof and the
Closing Date, to the performance by the Company of its obligations to be performed hereunder prior
to the Closing Date, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall be
in effect on the Closing Date and no proceedings for that purpose shall be pending before,
or, to the Company’s knowledge, threatened by, the Commission on the Closing Date. The
Representative shall have received, prior to payment for the Securities, a certificate dated
the Closing Date and signed by the Chairman, President, Treasurer or a Vice President of the
Company to the effect that no such stop order is in effect and that no proceedings for such
purpose are pending before or, to the knowledge of the Company, threatened by the
Commission.
(b) At the time of execution of this Agreement, or such later date as shall have been
consented to by the Representative, there shall have been issued, and on the Closing Date
there shall be in full force and effect, an order of the Florida Public Service Commission
authorizing the issuance and sale of the Securities, which shall not contain any provision
unacceptable to the Representative by reason of its being materially adverse to the Company
(it being understood that no such order in effect on the date of this Agreement and
heretofore furnished to the Representative or counsel for the Underwriters contains any such
unacceptable provision).
(c) At the Closing Date, the Representative shall receive favorable opinions from: (1)
Hunton & Xxxxxxxx LLP, counsel to the Company, which opinion shall be satisfactory in form
and substance to counsel for the Underwriters, and (2) Xxxxx Xxxxxxxxxx LLP, counsel for the
Underwriters, in each of which opinions (except as to subdivision (vi) (as to documents
incorporated by reference, at the time they were filed with the Commission) as to which
Xxxxx Xxxxxxxxxx LLP need express no opinion) said counsel may rely as to all matters of
Florida law upon the opinion of R. Xxxxxxxxx Xxxxx, Deputy General Counsel – Florida of
Progress Energy Service Company LLC, acting as counsel to the Company, to the effect that:
(i) the Indenture has been duly and validly authorized by all necessary
corporate action, has been duly and validly executed and delivered by the Company,
and is a valid and 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 general equitable principles and any
implied covenant of good faith and fair dealings;
(ii) the Indenture has been duly qualified under the 1939 Act;
(iii) assuming authentication of the Securities by the Trustee in accordance
with the Indenture and delivery of the Securities to and payment for the Securities
by the Underwriters, as provided in this Agreement, the Securities have been duly
and validly authorized, executed and delivered and are legal, valid and binding
obligations of the Company enforceable in accordance with their terms, except as
limited by bankruptcy, insolvency or other laws affecting
mortgagees’ and other creditors’ rights and general equitable principles and
any implied covenant of good faith and fair dealings, and are entitled to the
benefits of the Indenture;
(iv) the statements made in the Prospectus under the caption “Description of
Debt Securities” and in the Prospectus Supplement under the caption “Description of
Senior Notes,” insofar as they purport to constitute summaries of the documents
referred to therein, are accurate in all material respects;
(v) this Agreement has been duly and validly authorized, executed and delivered
by the Company;
(vi) the Registration Statement, at the time and date it was declared effective
by the Commission, and the Preliminary Prospectus, the Pricing Prospectus, the
Permitted Free Writing Prospectuses and the Prospectus, as of their respective dates
(except as to the financial statements and other financial and statistical data
constituting a part thereof or incorporated by reference therein, upon which such
opinions need not pass), complied as to form in all material respects with the
requirements of the Securities Act and the 1939 Act and the applicable instructions,
rules and regulations of the Commission thereunder; the documents or portions
thereof filed with the Commission pursuant to the Exchange Act and deemed to be
incorporated by reference in the Registration Statement, the Preliminary Prospectus,
the Pricing Prospectus, and the Prospectus pursuant to Item 12 of Form S-3 (except
as to financial statements and other financial and statistical data constituting a
part thereof or incorporated by reference therein and that part of the Registration
Statement that constitutes the Statement of Eligibility on Form T-1, 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; and
(vii) nothing has come to the attention of said counsel that would lead them to
believe that the Registration Statement, at the time and date it was declared
effective by the Commission, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; and nothing has come to the attention of said
counsel that would lead them to believe that (x) the Pricing Disclosure Package, as
of the Applicable Time, included an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading or (y) the
Prospectus, as of its date and, as amended or supplemented, at the
Closing Date, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (except as to financial statements and other financial and statistical
data constituting a part of the Registration Statement, the Pricing Disclosure
Package or the Prospectus or incorporated by reference therein and that part of the
Registration Statement that constitutes the Statement of Eligibility on Form T-1,
upon which such opinions need not pass).
(d) At the Closing Date, the Representative shall receive from R. Xxxxxxxxx Xxxxx,
Deputy General Counsel — Florida of Progress Energy Service Company, LLC, acting
as counsel to the Company, a favorable opinion in form and substance satisfactory to counsel
for the Underwriters, to the same effect with respect to the matters enumerated in
subdivisions (i), (iii), (v) and (vii) of subparagraph (c) of this paragraph 9 as the
opinions required by said subparagraph (c), and to the further effect that:
(i) the Company has been incorporated, is validly existing as a corporation and
its status is active under the laws of the State of Florida;
(ii) the Company is duly authorized by its Charter to conduct the business that
it is now conducting as set forth in the Prospectus;
(iii) the Company is an electrical utility engaged in the business of
generating, transmitting, distributing and selling electric power to the general
public in the State of Florida;
(iv) the Company has valid and subsisting franchises, licenses and permits
adequate for the conduct of its business, except where the failure to hold such
franchises, licenses and permits would not have a material adverse effect on the
business, properties, results of operations or financial condition of the Company;
(v) the issuance and sale of the Securities have been duly authorized by all
necessary corporate action on the part of the Company;
(vi) an order has been entered by the Florida Public Service Commission
authorizing the issuance and sale of the Securities; and to the best of the
knowledge of said counsel, said order is still in force and effect; and no further
filing with, 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;
(vii) except as described in or contemplated by the Prospectus, there are no
pending actions, suits or proceedings (regulatory or otherwise) against the Company
or any properties that are likely, in the aggregate, to result in any
material adverse change in the business, properties, results of operations or
financial condition of the Company or that are likely, in the aggregate, to
materially and adversely affect the Indenture, the Securities or the consummation of
this Agreement, or the transactions contemplated herein or therein; and
(viii) the consummation of the transactions herein contemplated and the
fulfillment of the terms hereof will not (i) result in a breach of any of the terms
or provisions of, or constitute a default under, the Charter or the Company’s
by-laws or (ii) result in a material breach of any terms or provisions of, or
constitute a default under, any applicable law, 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 assets,
properties or operations that, in the case of any such breach or default, would have
a material adverse effect on business, properties, results of operations or
financial condition of the Company.
(e) The Representative shall have received on the date hereof and shall receive on the
Closing Date from Deloitte & Touche LLP, a letter addressed to the Representative containing
statements and information of the type ordinarily included in accountants’ SAS 72 “comfort
letters” to underwriters with respect to the audit reports, financial statements and certain
financial information contained in or incorporated by reference into the Prospectus.
(f) At the Closing Date, the Representative shall receive a certificate of the
Chairman, President, Treasurer or a Vice President of the Company, dated the Closing Date,
to the effect that the representations and warranties of the Company in this Agreement are
true and correct as of the Closing Date.
(g) The Permitted Free Writing Prospectus, and any other material required pursuant to
Rule 433(d) under the Securities Act, shall have been filed by the Company with the
Commission within the applicable time periods prescribed by Rule 433.
(h) All legal proceedings taken in connection with the sale and delivery of the
Securities shall have been satisfactory in form and substance to counsel for the
Underwriters, and the Company, as of the Closing Date, shall be in compliance with any
governing order of the Florida Public Service Commission, except where the failure to comply
with such order would not be material to the offering or validity of the Securities.
In case any of the conditions specified above in this paragraph 9 shall not have been
fulfilled or waived by 2:00 P.M. on the Closing Date, this Agreement may be terminated by the
Representative by delivering written notice thereof to the Company. Any such termination shall be
without liability of any party to any other party except as otherwise provided in paragraphs 7 and
8 hereof.
10. Conditions of the Company’s Obligations. The obligations of the Company to
deliver the Securities shall be subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall be
in effect on the Closing Date, and no proceedings for that purpose shall be pending before
or threatened by the Commission on the Closing Date.
(b) Prior to 12:00 Noon, New York time, on the day following the date of this
Agreement, or such later date as shall have been consented to by the Company, there shall
have been issued and on the Closing Date there shall be in full force and effect an order of
the Florida Public Service Commission authorizing the issuance and sale by the Company of
the Securities, which shall not contain any provision unacceptable to the Company by reason
of its being materially adverse to the Company (it being understood that the order in effect
as of the date of this Agreement contains any such unacceptable provision).
In case any of the conditions specified in this paragraph 10 shall not have been fulfilled at
the Closing Date, this Agreement may be terminated by the Company by delivering written notice
thereof to the Representative. Any such termination shall be without liability of any party to any
other party except as otherwise provided in paragraphs 7 and 8 hereof.
11. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter, each officer
and director of each Underwriter and each person who controls any Underwriter within the
meaning of Section 15 of the Securities Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject and to
reimburse each such Underwriter, each such officer and director, and each such controlling
person for any legal or other expenses (including to the extent hereinafter provided,
reasonable counsel fees) incurred by them, when and as incurred, in connection with
investigating any such losses, claims, damages or liabilities or in connection with
defending any actions, insofar as such losses, claims, damages, liabilities, expenses or
actions arise out of or are based upon any untrue statement, or alleged untrue statement, of
a material fact contained in the Registration Statement, the Preliminary Prospectus, the
Pricing Prospectus, the Permitted Free Writing Prospectuses or the Prospectus, or in the
Registration Statement or Prospectus as amended or supplemented (if any amendments or
supplements thereto shall have been furnished), or in any free writing prospectus used by
the Company other than a Permitted Free Writing Prospectus, or the omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that the indemnity agreement
contained in this paragraph 11 shall not apply to any such losses, claims, damages,
liabilities, expenses or actions arising out of or based upon any such untrue statement or
alleged untrue statement, or any such omission or alleged omission, if such statement or
omission was made in reliance upon and in conformity with information furnished herein or in
writing to the Company by any Underwriter through the Representative expressly for use in
the Registration Statement, the Preliminary Prospectus, the Pricing Prospectus, the
Permitted Free Writing Prospectuses or the Prospectus, or any amendment or supplement to any
thereof, or arising out of, or based upon, statements in or omissions from that part of the
Registration Statement that shall constitute the Statement of Eligibility under the 1939 Act
(Form T-1)
of the Trustee, and provided, further, that the indemnity agreement contained in this
paragraph 11 shall not inure to the benefit of any Underwriter (or of any person controlling
such Underwriter) on account of any such losses, claims, damages, liabilities, expenses or
actions arising from the sale of the Securities to any person if a copy of the Permitted
Free Writing Prospectus or Prospectus (excluding documents incorporated by reference
therein) shall not have been given or sent to such person by or on behalf of such
Underwriter at or prior to the entry into the contract of sale, unless such Prospectus or
Permitted Free Writing Prospectus failed to correct the omission or misstatement. The
indemnity agreement of the Company contained in this paragraph 11 and the representations
and warranties of the Company contained in paragraph 3 hereof shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of any
Underwriter, and such officer or director or any such controlling person and shall survive
the delivery of the Securities. The Underwriters agree to notify promptly the Company, and
each other Underwriter, of the commencement of any litigation or proceedings against them or
any of them, or any such officer or director, or any such controlling person, in connection
with the sale of the Securities.
(b) Each Underwriter severally, and not jointly, agrees to indemnify and hold harmless
the Company, its officers who signed the Registration Statement and its directors, and each
person who controls the Company within the meaning of Section 15 of the Securities Act,
against any and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject and to reimburse each of them for any legal or other
expenses (including, to the extent hereinafter provided, reasonable counsel fees) incurred
by them, when and as incurred, in connection with investigating any such losses, claims,
damages, or liabilities, or in connection with defending any actions, insofar as such
losses, claims, damages, liabilities, expenses or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Preliminary Prospectus, the Pricing Prospectus, the Permitted
Free Writing Prospectuses, the Prospectus as amended or supplemented (if any amendments or
supplements thereto shall have been furnished), or any Underwriter Free Writing Prospectus
used by such Underwriter (but only to the extent that the content of such Underwriter Free
Writing Prospectus that is subject to indemnification is materially inconsistent with the
information contained in the Permitted Free Writing Prospectus or the Prospectus) or the
omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, if such statement or omission
was made in reliance upon and in conformity with information furnished herein or in writing
to the Company by such Underwriter or through the Representative on behalf of such
Underwriter expressly for use in the Registration Statement, the Preliminary Prospectus, the
Pricing Prospectus, the Permitted Free Writing Prospectus or the Prospectus or any amendment
or supplement to any thereof. The indemnity agreement of all the respective Underwriters
contained in this paragraph 11 shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Company or any other
Underwriter, or any such officer or director or any such controlling person, and shall
survive the delivery of the Securities. The Company agrees promptly to notify the
Representative of the commencement of any litigation or proceedings against the Company or
any of its
officers or directors, or any such controlling person, in connection with the sale of
the Securities.
(c) The Company and each of the Underwriters agree that, upon the receipt of notice of
the commencement of any action against it, its officers or directors, or any person
controlling it as aforesaid, in respect of which indemnity may be sought on account of any
indemnity agreement contained herein, it will promptly give written notice of the
commencement thereof to the party or parties against whom indemnity shall be sought
hereunder. The Company and each of the Underwriters agree that the notification required by
the preceding sentence shall be a material term of this Agreement. The omission so to
notify such indemnifying party or parties of any such action shall relieve such indemnifying
party or parties from any liability that it or they may have to the indemnified party on
account of any indemnity agreement contained herein if such indemnifying party was
materially prejudiced by such omission, but shall not relieve such indemnifying party or
parties from any liability that it or they may have to the indemnified party otherwise than
on account of such indemnity agreement. In case such notice of any such action shall be so
given, such indemnifying party shall be entitled to participate at its own expense in the
defense or, if it so elects, to assume (in conjunction with any other indemnifying parties)
the defense of such action, in which event such defense shall be conducted by counsel chosen
by such indemnifying party (or parties) and satisfactory to the indemnified party or parties
who shall be defendant or defendants in such action, and such defendant or defendants shall
bear the fees and expenses of any additional counsel retained by them; but if the
indemnifying party shall elect not to assume the defense of such action, such indemnifying
parties will reimburse such indemnified party or parties for the reasonable fees and
expenses of any counsel retained by them, as such expenses are incurred; provided, however,
if the defendants (including any impleaded parties) in any such action include both the
indemnified party and the indemnifying party, and counsel for the indemnified party shall
have concluded, in its reasonable judgment, that there may be a conflict of interest
involved in the representation by such counsel of both the indemnifying party and the
indemnified party, the indemnified party or parties shall have the right to select separate
counsel, satisfactory to the indemnifying party, to participate in the defense of such
action on behalf of such indemnified party or parties (it being understood, however, that
the indemnifying party shall not be liable for the expenses of more than one separate
counsel (in addition to one local counsel) representing the indemnified parties who are
parties to such action). Each of the Company and the several Underwriters agrees that
without the other party’s prior written consent, which consent shall not be unreasonably
withheld, it will not settle, compromise or consent to the entry of any judgment in any
claim in respect of which indemnification may be sought under the indemnification provisions
of this Agreement, unless such settlement, compromise or consent includes an unconditional
release of such other party from all liability arising out of such claim.
(d) If the indemnification provided for in subparagraphs (a) or (b) above is for any
reason unavailable to or insufficient to hold harmless an indemnified party in respect of
any losses, liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses, liabilities,
claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company,
on the one hand, and the Underwriters, on the other hand, from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) 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 of the Underwriters, on the other hand, in connection with the
statements or omissions that resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations. The relative benefits
received by the Company, on the one hand, and the Underwriters, on the other hand, in
connection with the offering of the Securities pursuant to this Agreement shall be deemed to
be in the same respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case as set forth
on the cover of the Prospectus, bear to the aggregate initial public offering price of the
Securities as set forth on such cover. The relative fault of the Company, on the one hand,
and the Underwriters, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the Company or
by the Underwriters and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution pursuant to this
subparagraph (d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to above in this subparagraph (d).
The rights of contribution contained in this Section 11 shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of any Underwriter of
the Company and shall survive delivery of the Securities. 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. For purposes of this subparagraph (d), each officer and director of each
Underwriter and each person, if any, who controls an Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the Company. The Underwriters’
respective obligations to contribute pursuant to this subparagraph (d) are several in
proportion to the number of Securities set forth opposite their respective names in Section
4 and not joint.
(e) For purposes of this paragraph 11, it is understood and agreed that the only
information provided by the Underwriters expressly for use in the Registration Statement,
the Pricing Prospectus, the Permitted Free Writing Prospectuses and Prospectus were the
following parts of the section titled “Underwriting”: the second and third sentences of the
second paragraph, the third sentence of the third paragraph, the fourth paragraph, the fifth
paragraph and the sixth paragraph.
12. Termination Date of this Agreement. This Agreement may be terminated by the
Representative at any time prior to the Closing Date by delivering written notice thereof to the
Company, if on or after the date of this Agreement but prior to such time (a) there shall have
occurred any general suspension of trading in securities on the New York Stock Exchange, or there
shall have been established by the New York Stock Exchange or by the Commission or by any federal
or state agency or by the decision of any court, any limitation on prices for such trading or any
restrictions on the distribution of securities or (b) there shall have occurred any new outbreak of
hostilities including, but not limited to, significant escalation of hostilities that existed prior
to the date of this Agreement or any national or international calamity or crisis, or any material
adverse change in the financial markets of the United States, the effect of which outbreak,
escalation, calamity or crisis, or material adverse change on the financial markets of the United
States shall be such as to make it impracticable, in the reasonable judgment of the Representative,
for the Underwriters to enforce contracts for the sale of the Securities, or (c) the Company shall
have sustained a substantial loss by fire, flood, accident or other calamity that renders it
impracticable, in the reasonable judgment of the Representative, to consummate the sale of the
Securities and the delivery of the Securities by the several Underwriters at the initial public
offering price, or (d) there shall have been any downgrading or any notice of any intended or
potential downgrading in the rating accorded the Company’s securities by any “nationally recognized
statistical rating organization” as that term is defined by the Commission for the purposes of
Securities Act Rule 436(g)(2), or any such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of the Securities, or
any of the Company’s other outstanding debt, the effect of which in the reasonable judgment of the
Representative, makes it impracticable or inadvisable to consummate the sale of the Securities and
the delivery of the Securities by the several Underwriters at the initial public offering price or
(e) there shall have been declared, by either federal or New York authorities, a general banking
moratorium. This Agreement may also be terminated at any time prior to the Closing Date if in the
reasonable judgment of the Representative the subject matter of any amendment or supplement to the
Registration Statement, the Pricing Prospectus or Prospectus (other than an amendment or supplement
relating solely to the activity of any Underwriter or Underwriters) filed after the execution of
this Agreement shall have materially impaired the marketability of the Securities. Any termination
hereof pursuant to this paragraph 12 shall be without liability of any party to any other party
except as otherwise provided in paragraphs 7 and 8.
13. Miscellaneous. The validity and interpretation of this Agreement shall be
governed by the laws of the State of New York. Unless otherwise specified, time of day refers to
New York City time. This Agreement shall inure to the benefit of, and be binding upon, the
Company, the several Underwriters, and with respect to the provisions of paragraph 11 hereof, the
officers and directors and each controlling person referred to in paragraph 11 hereof, and their
respective successors. Nothing in this Agreement is intended or shall be construed to give to any
other person, firm or corporation any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. The term “successors” as used in this
Agreement shall not include any purchaser, as such purchaser, of any of the Securities from any of
the several Underwriters.
14. Nature of Relationship. The Company acknowledges and agrees that (i) in
connection with all aspects of each transaction contemplated by this Agreement, the Company
and the Underwriters have an arms length business relationship that creates no fiduciary duty
on the part of any party and each expressly disclaims any fiduciary relationship, (ii) the
Underwriters and their respective affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Company, (iii) the Underwriters have not provided
any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby
and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent
it deemed appropriate, and (iv) any review by the Underwriters of the Company, the transactions
contemplated hereby or other matters relating to such transactions will be performed solely for the
benefit of the Underwriters and shall not be on behalf of the Company.
15. Notices. All communications hereunder shall be in writing or by telefax and, if
to the Underwriters, shall be mailed, transmitted by any standard form of telecommunication or
delivered to the Representatives at Barclays Capital Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 and Xxxxxx Brothers Inc., 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx Xxxx, Xxx Xxxx
00000, and if to the Company, shall be mailed or delivered to it at 000 Xxxxx Xxxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxx, Treasurer.
16. Counterparts. This Agreement may be simultaneously executed in counterparts, each
of which when so executed shall be deemed to be an original. Such counterparts shall together
constitute one and the same instrument.
17. Defined Terms. Unless otherwise defined herein, capitalized terms used in this
Underwriting Agreement shall have the meanings assigned to them in the Registration Statement.
[The remainder of this page has been intentionally left blank.]
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed duplicate hereof whereupon it will become a binding agreement
between the Company and the several Underwriters in accordance with its terms.
| Very truly yours, FLORIDA POWER CORPORATION d/b/a PROGRESS ENERGY FLORIDA, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Authorized Representative | ||||
Accepted as of the date first
above written, as Underwriter
named in, and as the Representative
of the other Underwriters named in,
Section 1 of this Agreement.
above written, as Underwriter
named in, and as the Representative
of the other Underwriters named in,
Section 1 of this Agreement.
| BARCLAYS CAPITAL INC. | ||||
By: |
/s/ Xxxxxx Xxxxxxx | |||
| XXXXXX BROTHERS INC. | ||||
By: |
/s/ Xxxxxx Xxxxxxxx | |||
[Signature Page of PEF Senior Notes Underwriting Agreement]
SCHEDULE I
PRICING TERM SHEET
| Underwriting Agreement dated December 7, 2005 | ||
Representatives: |
Barclays Capital Inc. | |
| Xxxxxx Brothers Inc. | ||
Designation: |
Series A Floating Rate Senior Notes due 2008 | |
Principal Amount: |
$450,000,000 | |
Maturity: |
November 14, 2008 | |
Interest Rate: |
Floating rate based on the three-month LIBOR rate | |
| (calculated as described in the Preliminary | ||
| Prospectus Supplement dated December 7, 2005) plus | ||
| 0.40%; reset quarterly. | ||
Interest Payment Dates: |
Payable quarterly on February 14, May 14, August | |
| 14 and November 14, commencing February 14, 2006. | ||
Public Offering Price: |
100% of the principal amount thereof. | |
Redemption Terms: |
On June 13, 2006 or any interest payment date | |
| thereafter, redeemable prior to maturity, in whole | ||
| or in part, at the option of the Company at a | ||
| redemption price of 100% (as described in further | ||
| detail in the Preliminary Prospectus Supplement | ||
| dated December 7, 2005). | ||
Settlement: |
December 13, 2005 | |
CUSIP: |
341099 CF 4 | |
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
XXXXX on the SEC Web site at xxx.xxx.xxx (and more specifically, at the URL link
xxxx://xxx.xxx/xxx-xxx/xxxxxx-xxxxx?xxxxxxxxxxxxxxxxx&XXXx0000000000&xxxxxxxxxxxxx).
Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling toll-free at 1-888-227-2275 ext. 2663 or
collect at 0-000-000-0000.
SCHEDULE II
PRICING DISCLOSURE PACKAGE
| 1) | Prospectus dated April 4, 2003 | |
| 2) | Preliminary Prospectus Supplement dated December 7, 2005 (which shall be deemed to include the Incorporated Documents) | |
| 3) | Permitted Free Writing Prospectuses |
a) Pricing Term Sheet attached as Schedule I hereto
