Exhibit 4(d)
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GUARANTEE AGREEMENT
Between
CP&L ENERGY, INC.
as Guarantor,
and
____________________________
as Guarantee Trustee,
Dated as of __________________
TABLE OF CONTENTS
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Page
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ARTICLE I. DEFINITIONS........................................................... 1
Section 101. Definitions..................................................... 1
ARTICLE II. TRUST INDENTURE ACT.................................................. 5
Section 201. Trust Indenture Act; Application................................ 5
Section 202. List of Holders................................................. 5
Section 203. Reports by the Guarantee Trustee................................ 5
Section 204. Periodic Reports to the Guarantee Trustee....................... 6
Section 205. Evidence of Compliance with Conditions Precedent................ 6
Section 206. Events of Default; Waiver....................................... 6
Section 207. Event of Default; Notice........................................ 6
Section 208. Conflicting Interests........................................... 6
ARTICLE III. THE GUARANTEE TRUSTEE............................................... 7
Section 301. Certain Duties and Responsibilities............................. 7
Section 302. Certain Rights of Guarantee Trustee............................. 8
Section 303. Compensation; Indemnity......................................... 10
ARTICLE IV. GUARANTEE TRUSTEE.................................................... 10
Section 401. Guarantee Trustee; Eligibility.................................. 10
Section 402. Appointment, Removal and Resignation of the Guarantee Trustee... 11
Section 403. Acceptance of Appointment by Successor Guarantee Trustee........ 13
ARTICLE V. GUARANTEE.............................................................. 13
Section 501. Guarantee....................................................... 13
Section 502. Waiver of Notice and Demand..................................... 14
Section 503. Obligations Not Affected........................................ 14
Section 504. Rights of Holders............................................... 15
Section 505. Guarantee of Payment............................................ 15
Section 506. Subrogation..................................................... 15
Section 507. Independent Obligations......................................... 16
ARTICLE VI. COVENANTS AND SUBORDINATION.......................................... 16
Section 601. Subordination................................................... 16
Section 602. Pari Passu Guarantees........................................... 16
ARTICLE VII. TERMINATION......................................................... 16
(i)
Section 701. Termination..................................................... 16
ARTICLE VIII. MISCELLANEOUS...................................................... 17
Section 801. Successors and Assigns.......................................... 17
Section 802. Amendments...................................................... 17
Section 803. Notices......................................................... 17
Section 804. Benefit......................................................... 18
Section 805. Interpretation.................................................. 18
Section 806. Governing Law................................................... 19
Section 807. Counterparts.................................................... 19
(ii)
CP&L ENERGY CAPITAL TRUST __
Certain Sections of this Guarantee Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Guarantee Agreement
Act Section Section
--------------- -------------------
Section 310 (a)(1)............................................................ 401(a)
(a)(2)............................................................ 401(a)
(a)(3)............................................................ Not Applicable
(a)(4)............................................................ Not Applicable
(b)............................................................... 208, 401(c)
Section 311 (a)............................................................... 202(b)
(b)............................................................... 202(b)
Section 312 (a)............................................................... 202(a)
(b)............................................................... 202(b)
(c)............................................................... Not Applicable
Section 313 (a)............................................................... 203
(a)(4)............................................................ 203
(b)............................................................... 203
(c)............................................................... 203
(d)............................................................... 203
Section 314 (a)............................................................... 204
(b)............................................................... 204
(c)(1)............................................................ 205
(c)(2)............................................................ 205
(c)(3)............................................................ 205
(e)............................................................... 101, 205
Section 315 (a)............................................................... 301(d), 302
(b)............................................................... 207
(c)............................................................... 301(c)
(d)............................................................... 301(d)
(e)............................................................... Not Applicable
Section 316 (a)............................................................... 101, 206, 504
(a)(1)(A)......................................................... 504
(a)(1)(B)......................................................... 504
(a)(2)............................................................ Not Applicable
(b)............................................................... 503
(c)............................................................... Not Applicable
Section 317 (a)(1)............................................................ Not Applicable
(a)(2)............................................................ Not Applicable
(b)............................................................... Not Applicable
Section 318 (a)............................................................... 201
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Guarantee Agreement.
(iii)
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of _____________ is executed and
delivered by CP&L Energy, Inc., a North Carolina corporation (the "Guarantor")
having its principal office at 000 Xxxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx Xxxxxxxx
00000-0000, and ________________, a New York banking corporation, as trustee
(the "Guarantee Trustee"), for the benefit of the Holders (as defined herein)
from time to time of the Trust Preferred Securities (as defined herein) of CP&L
Energy Capital Trust __, a Delaware statutory business trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the "Trust
Agreement"), dated as of _____________, among CP&L Energy, Inc., as Depositor,
______________, as Property Trustee (the "Property Trustee"), __________________
Delaware, as Delaware Trustee (the "Delaware Trustee") (collectively, the
"Trustees"), the Administrators named therein and the Holders from time to time
of preferred undivided beneficial ownership interests in the assets of the
Trust, the Trust is issuing up to $____________ aggregate Liquidation Amount (as
defined herein) of its ______% Trust Preferred Securities, Liquidation Amount $
_____ per Trust Preferred Security (the "Trust Preferred Securities"),
representing preferred undivided beneficial ownership interests in the assets of
the Trust and having the terms set forth in the Trust Agreement;
WHEREAS, the Trust Preferred Securities will be issued by the Trust and the
proceeds thereof, together with the proceeds from the issuance by the Trust of
the Trust Common Securities (as defined herein), will be used to purchase the
_______% Junior Subordinated Deferrable Interest Debentures Series __ due
_____________ (the "Junior Subordinated Debentures") of the Guarantor which will
be deposited with ____________________, as Property Trustee under the Trust
Agreement, as trust assets; and
WHEREAS, as incentive for the Holders to purchase the Trust Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth herein, to pay to the Holders of the Trust Preferred
Securities the Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase of the Trust Preferred
Securities by each Holder, which purchase the Guarantor hereby acknowledges
shall benefit the Guarantor, and intending to be legally bound hereby, the
Guarantor executes and delivers this Guarantee Agreement for the benefit of the
Holders from time to time of the Trust Preferred Securities.
ARTICLE I. DEFINITIONS
Section 101. Definitions.
As used in this Guarantee Agreement, the terms set forth below
shall, unless the context otherwise requires, have the following meanings.
Capitalized terms used but not
otherwise defined herein shall have the meanings assigned to such terms in the
Trust Agreement as in effect on the date hereof.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Distributions" means preferential cumulative cash distributions
accumulating from ________, 20__ and payable quarterly in arrears on _________,
________, ________ and _________ of each year, commencing ________, 20__, at an
annual rate of ____% of the Liquidation Amount.
"Event of Default" means (i) a default by the Guarantor in any of
its payment obligations under this Guarantee Agreement, or (ii) a default by the
Guarantor in any other obligation hereunder that remains unremedied for 30 days.
"Guarantee Agreement" means this Guarantee Agreement, as modified,
amended or supplemented from time to time.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Trust Preferred Securities, to the
extent not paid or made by or on behalf of the Trust: (i) any accumulated and
unpaid Distributions (as defined in the Trust Agreement) required to be paid on
the Trust Preferred Securities, to the extent the Trust shall have funds on hand
available therefor at such time, (ii) the Redemption Price, with respect to the
Trust Preferred Securities called for redemption by the Trust to the extent
that the Trust shall have funds on hand available therefor at such time, and
(iii) upon a voluntary or involuntary termination, winding-up or liquidation of
the Trust, unless the Junior Subordinated Debentures are distributed to the
Holders, the lesser of (a) the aggregate of the Liquidation Amount and all
accumulated and unpaid Distributions to the date of payment to the extent the
Trust shall have funds on hand available to make such payment at such time and
(b) the amount of assets of the Trust remaining available for distribution to
Holders on liquidation of the Trust (in either case, the "Liquidation
Distribution").
"Guarantee Trustee" means ____________________, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement and thereafter means each such
Successor Guarantee Trustee.
"Guarantor" shall have the meaning specified in the first paragraph
of this Guarantee Agreement.
"Holder" means any holder, as registered on the books and records of
the Trust, of any Trust Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Trust Preferred
Securities have given any request, notice, consent or
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waiver hereunder, "Holder" shall not include the Guarantor, the Guarantee
Trustee, or any Affiliate of the Guarantor or the Guarantee Trustee.
"Indenture" means the Indenture (For Subordinated Debt Securities)
dated as of ______________, between CP&L Energy, Inc. and ____________________,
as trustee, as may be modified, amended or supplemented from time to time.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to that portion
of the principal amount of Junior Subordinated Debentures to be
contemporaneously redeemed in accordance with the Indenture, allocated to the
Trust Common Securities and to the Trust Preferred Securities based upon the
relative Liquidation Amounts of such classes and (b) with respect to a
distribution of Junior Subordinated Debentures to Holders of Trust Securities in
connection with a dissolution or liquidation of the Trust, Junior Subordinated
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holder to whom such Junior Subordinated Debentures are
distributed.
"Liquidation Amount" means the stated amount of $_____ per Trust
Preferred Security.
"Majority in Liquidation Amount of the Trust Preferred Securities"
means, except as provided by the Trust Indenture Act, Trust Preferred Securities
representing more than 50% of the aggregate Liquidation Amount of all then
outstanding Trust Preferred Securities issued by the Trust.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, President, any Vice President, the Treasurer or any other duly
authorized officer of the Guarantor, and delivered to the Guarantee Trustee. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Guarantee Agreement (other than pursuant to
Section 204) shall include:
(a) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to enable
such Person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
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"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Redemption Date" means, with respect to any Trust Preferred
Security to be redeemed, the date fixed for such redemption by or pursuant to
the Trust Agreement; provided that each Junior Subordinated Debenture Redemption
Date and the stated maturity of the Junior Subordinated Debentures shall be a
Redemption Date for a Like Amount of Trust Preferred Securities.
"Redemption Price" shall have the meaning specified in the Trust
Agreement.
"Responsible Officer" means, when used with respect to the Guarantee
Trustee, any officer assigned to the Corporate Trust Office, including any
managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary, Senior Trust Officer, Trust Officer or any other
officer of the Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and having direct
responsibility for the administration of this Guarantee Agreement, and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"Senior Indebtedness" shall have the meaning specified in the
Indenture.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 401.
"Trust" shall have the meaning specified in the first paragraph of
this Guarantee Agreement.
"Trust Agreement" means the Amended and Restated Trust Agreement,
dated ___________, entered among CP&L Energy, Inc., as Depositor,
_________________, as Delaware Trustee, ____________________, as Property
Trustee, and the Administrators named therein.
"Trust Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force and effect as of the date of execution of this Guarantee Agreement;
provided, however, that in the event the Trust Indenture Act of 1939 is
succeeded by another statute or is amended after such date, "Trust Indenture
Act" shall mean such successor statute or the Trust Indenture Act of 1939, as so
amended, to the extent such successor statute or amendment is applicable to this
Guarantee Agreement or to the actions of the Guarantor or the Property Trustee
under or pursuant to this Guarantee Agreement.
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"Trust Preferred Securities" shall have the meaning specified in the
first recital of this Guarantee Agreement.
"Trust Securities" means the Trust Common Securities and the Trust
Preferred Securities.
ARTICLE II. TRUST INDENTURE ACT
Section 201. Trust Indenture Act; Application.
This Guarantee Agreement is intended to be in conformity with the
provisions of the Trust Indenture Act that would be required to be part of this
Guarantee Agreement were this Guarantee Agreement to be qualified under the
Trust Indenture Act and shall, to the extent applicable, and unless otherwise
provided herein, be governed by such provisions. If and to the extent that any
provision of this Guarantee Agreement limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control. If any provision of this Guarantee Agreement
modifies or excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the latter provision shall be deemed to apply to this
Guarantee Agreement as so modified or excluded, as the case may be.
Section 202. List of Holders.
(a) The Guarantor will furnish or cause to be furnished to the
Guarantee Trustee a list of Holders at the following times:
(i) semiannually, not more than 15 days after _________
and ____________ in each year, a list, in such form as the Guarantee
Trustee may reasonably require, of the names and addresses of the
Holders as of such ________ or _________, as applicable; and
(ii) at such other times as the Guarantee Trustee may
request in writing, within 30 days after the receipt by the
Guarantor of any such request, a list of similar form and content as
of a date not more than 15 days prior to the time such list is
furnished.
(b) The Guarantee Trustee shall comply with the requirements of
Section 311(a) of the Trust Indenture Act subject to the provisions of
Sections 311(b) and 312(b) of the Trust Indenture Act.
Section 203. Reports by the Guarantee Trustee.
Not later than 60 days after ___________ of each year, commencing
___________, 20__, the Guarantee Trustee shall provide to the Holders such
reports, if any, as are required by Section 313(a) of the Trust Indenture Act in
the form and in the manner provided by Section 313 of the Trust Indenture Act.
The Guarantee Trustee shall also comply with the requirements of Section
313(b)(c) and (d) of the Trust Indenture Act.
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Section 204. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, and the
Holders such documents, reports and information, if any, as required by Section
314 of the Trust Indenture Act and the compliance certificate required by
Section 314(a)(4) of the Trust Indenture Act, in the form, in the manner and at
the times required by Section 314 of the Trust Indenture Act.
Section 205. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence
of compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officer's Certificate.
Section 206. Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the Trust
Preferred Securities may, on behalf of the Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Guarantee Agreement, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent therefrom.
Section 207. Event of Default; Notice.
The Guarantee Trustee shall give notice to the Holders of any
default hereunder of which it has knowledge (within the meaning of Section
302(h) hereof) in the manner and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been cured or waived. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time, or both, would become, an Event of Default.
Section 208. Conflicting Interests.
The Indenture, the Trust Agreement, the Guarantee Agreement dated as
of ___________ between the Guarantor and ____________________, as guarantee
trustee, relating to the Trust, and the Amended and Restated Trust Agreement
dated as of ______________ among the Guarantor, as Depositor,
____________________, as Property Trustee, _________________, as Delaware
Trustee and the Administrators named therein, relating to the Trust, shall be
deemed to be specifically described in this Guarantee Agreement for the purposes
of clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
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ARTICLE III. THE GUARANTEE TRUSTEE
Section 301. Certain Duties and Responsibilities.
(a) The Guarantee Trustee shall have and be subject to all the
duties and responsibilities specified with respect to an indenture trustee
in the Trust Indenture Act, and no implied covenants or obligations shall
be read into this Guarantee Agreement against the Guarantee Trustee. For
purposes of Sections 315(a) and 315(c) of the Trust Indenture Act, the term
"default" is hereby defined as an Event of Default which has occurred and
is continuing.
(b) This Guarantee Agreement shall be held by the Guarantee
Trustee for the benefit of the Holders, and the Guarantee Trustee shall not
transfer this Guarantee Agreement to any Person except a Holder exercising
his or her rights pursuant to Section 504(iv) or to a Successor Guarantee
Trustee on acceptance by such Successor Guarantee Trustee of its
appointment to act as Successor Guarantee Trustee hereunder. The right,
title and interest of the Guarantee Trustee, as such, hereunder shall
automatically vest in any Successor Guarantee Trustee, upon acceptance by
such Successor Guarantee Trustee of its appointment hereunder, and such
vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(c) The Guarantee Trustee, prior to the occurrence of an Event
of Default and after the curing or waiving of all Events of Default that
may have occurred, undertakes to perform such duties and only such duties
as are specifically set forth in this Guarantee Agreement. In case an Event
of Default of which a Responsible Officer of the Guarantee Trustee has
actual knowledge has occurred (which has not been cured or waived), the
Guarantee Trustee shall exercise such of the rights and powers vested in it
by this Guarantee Agreement, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(d) No provision of this Guarantee Agreement shall be construed
to relieve the Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct,
except that prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default which may have occurred:
(i) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of this
Guarantee Agreement, and the Guarantee Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Guarantee Agreement, and no implied
covenants or obligations shall be read into this Guarantee Agreement
against the Guarantee Trustee; and
(ii) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions
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furnished to the Guarantee Trustee and conforming to the
requirements of this Guarantee Agreement; but, in the case of any
such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Guarantee Trustee, the
Guarantee Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Guarantee Agreement.
(e) The Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Officers of the
Guarantee Trustee, unless it shall be proven that the Guarantee Trustee was
negligent in ascertaining the pertinent facts.
(f) The Guarantee Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith, in accordance
with the direction of the Holders pursuant to Section 504(iii), relating to
the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee, under this Guarantee Agreement.
(g) No provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity,
satisfactory to the Guarantee Trustee in its reasonable judgment, against
such risk or liability is not reasonably assured to it.
(h) Notwithstanding anything contained in this Guarantee
Agreement to the contrary, the duties and responsibilities of the Guarantee
Trustee under this Guarantee Agreement shall be subject to the protections,
exculpations and limitations on liability afforded to the Guarantee Trustee
under the provisions of the Trust Indenture Act, including those provisions
of such Act deemed by such Act to be included herein.
(i) Whether or not therein expressly so provided, every
provision of this Guarantee Agreement relating to the conduct or affecting
the liability of or affording protection to the Guarantee Trustee shall be
subject to the provisions of this Section.
Section 302. Certain Rights of Guarantee Trustee.
Subject to the provisions of Section 301 and to the applicable
provisions of the Trust Indenture Act:
(a) the Guarantee Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
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(b) any request or direction of the Guarantor mentioned herein
shall be sufficiently evidenced by an Officer's Certificate, or as
otherwise expressly provided herein, and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Guarantee Agreement
the Guarantee Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder,
the Guarantee Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an
Officer's Certificate,
(d) the Guarantee Trustee may consult with counsel and the
advice or written opinion of such counsel with respect to legal matters
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder pursuant to this
Guarantee Agreement, unless such Holder shall have offered to the Guarantee
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(f) the Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Guarantee Trustee shall determine
to make such further inquiry or investigation, it shall (subject to
applicable legal requirements) be entitled to examine, during normal
business hours, the books, records and premises of the Guarantor,
personally or by agent or attorney;
(g) the Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder; and
(h) the Guarantee Trustee shall not be charged with knowledge of
any default or Event of Default unless either (1) a Responsible Officer of
the Guarantee Trustee shall have actual knowledge of the default or Event
of Default or (2) written notice of such default or Event of Default (which
shall state that such notice is a "Notice of Default" or a "Notice of an
Event of Default" hereunder, as the case may be) shall have been given to
the Guarantee Trustee by the Guarantor, any other obligor on Trust
Preferred Securities or by any Holder of Trust Preferred Securities.
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Section 303. Compensation; Indemnity.
The Guarantor, shall
(a) pay to the Guarantee Trustee from time to time reasonable
compensation for all services rendered by the Guarantee Trustee hereunder
(which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, reimburse the
Guarantee Trustee upon request for all reasonable expenses, disbursements
and advances reasonably incurred or made by the Guarantee Trustee in
accordance with any provision of this Guarantee Agreement, including the
costs of collection (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except to the extent that any
such expense, disbursement or advance may be attributable to its
negligence, willful misconduct or bad faith; and
(c) indemnify and hold harmless the Guarantee Trustee from and
against any and all losses, demands, claims, liabilities, causes of action
or expenses (including reasonable attorney's fees and expenses) incurred by
it arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder or the performance of its duties hereunder
(including the reasonable costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder), except to the extent any such loss,
demand, claim, liability, cause of action or expense may be attributable to
its negligence, willful misconduct or bad faith, and assume the defense of
Guarantee Trustee with counsel acceptable to the Guarantee Trustee, unless
the Guarantee Trustee shall have been advised by counsel that there may be
one or more legal defenses available to it which are different from or
additional to those available to the Guarantor.
The provisions of this Section shall survive termination of this Guarantee
Agreement.
ARTICLE IV. GUARANTEE TRUSTEE
Section 401. Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor;
(ii) be a corporation
(1) organized and doing business under the laws of the
United States of America, any state or territory thereof or
the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital
and surplus of at least $100,000,000 and subject to
supervision or examination by Federal or State authority, or
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(2) if and to the extent permitted by the Commission
by rule, regulation or order upon application, a corporation
or other Person organized and doing business under the laws
of a foreign government, authorized under such laws to
exercise corporate trust powers, having a combined capital
and surplus of at least $100,000,000 or the Dollar
equivalent of the applicable foreign currency and subject to
supervision or examination by authority of such foreign
government or a political subdivision thereof substantially
equivalent to supervision or examination applicable to
United States institutional trustees,
and, in either case, qualified and eligible under this Article IV
and the Trust Indenture Act. If such corporation publishes reports
of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 401(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section
402.
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Guarantee Trustee and Guarantor shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act,
subject to the penultimate paragraph thereof.
Section 402. Appointment, Removal and Resignation of the Guarantee
Trustee.
(a) No resignation or removal of the Guarantee Trustee and no
appointment of a Successor Guarantee Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the Successor
Guarantee Trustee by written instrument executed by the Successor Guarantee
Trustee and delivered to the Holders and the Guarantee Trustee.
(b) Subject to the immediately preceding paragraph, a Guarantee
Trustee may resign at any time by giving written notice thereof to the
Guarantor and the Holders. If the instrument of acceptance by the Successor
Guarantee Trustee shall not have been delivered to the Guarantee Trustee
within 60 days after the giving of such notice of resignation, the
Guarantee Trustee may petition, at the expense of the Guarantor, any court
of competent jurisdiction for the appointment of a Successor Guarantee
Trustee.
(c) The Guarantee Trustee may be removed at any time by Act
(within the meaning of Section 608 of the Trust Agreement) of the Holders
of at least a Majority in Liquidation Amount of the Trust Preferred
Securities, delivered to the Guarantee Trustee.
(d) If at any time:
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(i) the Guarantee Trustee shall fail to comply with
Section 401(c) after written request therefor by the Guarantor or by
any Holder who has been a bona fide Holder for at least six months,
or
(ii) the Guarantee Trustee shall cease to be eligible
under Section 401(a) and shall fail to resign after written request
therefor by the Guarantor or by any such Holder, or
(iii) the Guarantee Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or a receiver of
the Guarantee Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Guarantee Trustee
or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation
then, in any such case, the Guarantor may remove the Guarantee Trustee
(e) If the Guarantee Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Guarantee
Trustee for any cause, the Guarantor, by a Board Resolution, shall promptly
appoint a successor Guarantee Trustee and shall comply with the applicable
requirements of Section 403. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a Successor
Guarantee Trustee shall be appointed by Act of the Holders of not less than
a Majority in Liquidation Amount of the Trust Preferred Securities
delivered to the Guarantor and the retiring Guarantee Trustee, the
Successor Guarantee Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable
requirements of Section 403, become the Successor Guarantee Trustee and
supersede the Successor Trustee appointed by the Guarantor. If no Successor
Guarantor Trustee shall have been so appointed by the Guarantor or the
Holders and accepted appointment in the manner required by Section 403, any
Holder who has been a bona fide Holder of a Trust Preferred Security for at
least six months may, on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for the appointment
of a Successor Guarantee Trustee.
(f) So long as no event which is, or after notice or lapse of
time, or both, would become, an Event of Default shall have occurred and be
continuing, and except with respect to a Guarantee Trustee appointed by Act
of the Holders of a Majority in Liquidation Amount of the Outstanding Trust
Preferred Securities pursuant to subsection (e) of this Section, if the
Guarantor shall have delivered to the Guarantee Trustee (i) a Board
Resolution appointing a Successor Guarantee Trustee, effective as of a date
specified therein, and (ii) an instrument of acceptance of such
appointment, effective as of such date, by such Successor Guarantee Trustee
in accordance with Section 403, the Guarantee Trustee shall be deemed to
have resigned as contemplated in subsection (b) of this Section, the
Successor Guarantee Trustee shall be deemed to have been appointed by the
Guarantor pursuant to subsection (e) of this Section and such appointment
shall be deemed to have been accepted as contemplated in Section 403, all
as of such date, and all other provisions of this Section and Section 403
shall be applicable to such resignation, appointment and acceptance except
to the extent inconsistent with this subsection (f).
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(g) The Guarantor or, should the Guarantor fail so to act
promptly, the Successor Guarantee Trustee, at the expense of the Guarantor,
shall give notice of each resignation and each removal of the Guarantee
Trustee and each appointment of a Successor Guarantee Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders as their names and addresses appear in the Securities Register.
Each notice shall include the name of the Successor Guarantee Trustee and
the address of its Corporate Trust Office.
Section 403. Acceptance of Appointment by Successor Guarantee Trustee.
(a) Every Successor Guarantee Trustee appointed hereunder shall
execute, acknowledge and deliver to the Guarantor and to the retiring
Guarantee Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Guarantee Trustee shall become
effective and such Successor Guarantee Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Guarantee Trustee; but, on the request of the
Guarantor or the Successor Guarantee Trustee, such retiring Guarantee
Trustee shall, upon payment of all sums owed to it, execute and deliver an
instrument transferring to such Successor Guarantee Trustee all the rights,
powers and trusts of the retiring Guarantee Trustee and shall duly assign,
transfer and deliver to such Successor Guarantee Trustee all property and
money held by such retiring Guarantee Trustee hereunder.
(b) Upon request of any such Successor Guarantee Trustee, the
Guarantor shall execute any instruments which fully vest in and confirm to
such Successor Guarantee Trustee all such rights, powers and trusts
referred to in subsection (a) of this Section.
(c) No Successor Guarantee Trustee shall accept its appointment
unless at the time of such acceptance such Successor Guarantee Trustee
shall be qualified and eligible under this Article.
ARTICLE V. GUARANTEE
Section 501. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full
to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by or on behalf of the Trust), as and when due, regardless of
any defense, right of set-off or counterclaim which the Trust may have or
assert, except the defense of payment. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Guarantor to the Holders or by causing the Trust to pay such amounts to the
Holders. The Guarantor shall give prompt written notice to the Guarantee Trustee
in the event it makes any direct payment hereunder.
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Section 502. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, the Trust or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
Section 503. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Trust of any express or implied
agreement, covenant, term or condition relating to the Trust Preferred
Securities to be performed or observed by the Trust;
(b) the extension of time for the payment by the Trust of all or
any portion of the Distributions (other than an extension of time for
payment of Distributions that results from the extension of any interest
payment period on the Junior Subordinated Debentures as so provided in the
Indenture), Redemption Price, Liquidation Distribution or any other sums
payable under the terms of the Trust Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of,
or in connection with, the Trust Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders pursuant to the terms of the Trust
Preferred Securities, or any action on the part of the Trust granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Trust
or any of the assets of the Trust;
(e) any invalidity of, or defect or deficiency in, the Trust
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor (other
than payment of the underlying obligation), it being the intent of this
Section 503 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
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There shall be no obligation of the Guarantee Trustee, the Property
Trustee or the Holders to give notice to, or obtain the consent of, the
Guarantor with respect to the happening of any of the foregoing.
Section 504. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee
Agreement will be deposited with the Guarantee Trustee to be held for the
benefit of the Holders; (ii) the Guarantee Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Amount of the Trust Preferred Securities have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Guarantee Trustee in respect of this Guarantee Agreement or exercising
any trust or power conferred upon the Guarantee Trustee under this Guarantee
Agreement, provided, however, that, subject to Section 301, the Guarantee
Trustee shall have the right to decline to follow any such direction if the
Guarantee Trustee being advised by counsel determines that the action so
directed may not lawfully be taken, or if the Guarantee Trustee in good faith
shall, by a Responsible Officer or Officers of the Guarantee Trustee, determine
that the proceedings so directed would be illegal or involve it in personal
liability or be unduly prejudicial to the rights of the Holders not party to
such direction, and provided further that nothing in this Guarantee Agreement
shall impair the right of the Guarantee Trustee to take any action deemed proper
by the Guarantee Trustee and which is not inconsistent with such direction; and
(iv) any Holder may institute a legal proceeding directly against the Guarantor
to enforce its rights under this Guarantee Agreement, without first instituting
a legal proceeding against the Guarantee Trustee, the Trust or any other Person.
Section 505. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment of
the Guarantee Payments in full (without duplication of amounts theretofore paid
by the Trust) or upon the distribution of Junior Subordinated Debentures to
Holders as provided in the Trust Agreement.
Section 506. Subrogation.
The Guarantor shall be subrogated to all rights (if any) of the
Holders against the Trust in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any rights which it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee Agreement, if at the time of any such
payment, any amounts are due and unpaid under this Guarantee Agreement. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
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Section 507. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust with respect to the Trust Preferred
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 503 hereof.
ARTICLE VI. COVENANTS AND SUBORDINATION
Section 601. Subordination.
This Guarantee Agreement will constitute an unsecured obligation of
the Guarantor and will rank subordinate and junior in right of payment to all
Senior Indebtedness of the Guarantor to the extent and in the manner set forth
in the Indenture with respect to the Junior Subordinated Debentures, and the
provisions of Article XV of the Indenture will apply, mutatis mutandis, to the
obligations of the Guarantor hereunder. The obligations of the Guarantor
hereunder do not constitute Senior Indebtedness of the Guarantor.
Section 602. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement
shall rank pari passu with any similar guarantee agreements issued by the
Guarantor on behalf of the holders of preferred or Trust Preferred Securities
issued by any other trust similar to the Trust and with any other security,
guarantee or other obligation that is expressly stated to rank pari passu with
the obligations of the Guarantor under this Guarantee Agreement.
ARTICLE VII. TERMINATION
Section 701. Termination.
This Guarantee Agreement shall terminate and be of no further force
and effect upon (i) full payment of the Redemption Price of all Trust Preferred
Securities, (ii) the distribution of Junior Subordinated Debentures to the
Holders in exchange for all of the Trust Preferred Securities or (iii) full
payment of the amounts payable in accordance with Article IX of the Trust
Agreement upon liquidation of the Trust. Notwithstanding the foregoing, this
Guarantee Agreement will continue to be effective or will be reinstated, as the
case may be, if at any time any Holder is required to restore payment of any
sums paid under the Trust Preferred Securities or this Guarantee Agreement.
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ARTICLE VIII. MISCELLANEOUS
Section 801. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Trust
Preferred Securities then outstanding. Except in connection with a
consolidation, merger or sale involving the Guarantor that is permitted under
Article XI of the Indenture and pursuant to which the assignee agrees in writing
to perform the Guarantor's obligations hereunder, the Guarantor shall not assign
its obligations hereunder, and any purported assignment that is not in
accordance with these provisions shall be void.
Section 802. Amendments.
Except with respect to any changes that do not materially adversely
affect the rights of the Holders (in which case no consent of the Holders will
be required), this Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than a Majority in Liquidation Amount of the
Trust Preferred Securities. The provisions of Article VI of the Trust Agreement
concerning meetings or consents of the Holders shall apply to the giving of such
approval.
Section 803. Notices.
Any notice, request or other communication required or permitted to
be given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied with receipt confirmed, or mailed by first
class mail as follows:
(a) if given to the Guarantor, to the address or telecopy number
set forth below or such other address or telecopy number or to the
attention of such other Person as the Guarantor may give notice to the
Guarantee Trustee and the Holders:
CP&L Energy, Inc.
000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Facsimile No.: (919) 546-____
Attention: ___________, _______________
(b) if given to the Trust, at the Trust's (and the Guarantee
Trustee's) address or telecopy number set forth below or such other address
or telecopy number or to the attention of such other Person as the Trust or
Guarantee Trustee may give notice to the Guarantee Trustee (if given by the
Trust) and the Holders:
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CP&L Energy Capital Trust ___
c/o CP&L Energy, Inc.
000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Facsimile No.: (919) 546-____
Attention: ____________, Administrator
with a copy to:
_______________________
_______________________
_______________________
Facsimile No.: _______
Attention: Corporate Trustee Administration
(c) if given to the Guarantee Trustee, to the address or
telecopy number set forth below or such other address or telecopy number or
to the attention of such other Person as the Guarantee Trustee may give
notice to the Guarantor and the Holders:
_______________________
_______________________
_______________________
Facsimile No.: _______
Attention: Corporate Trustee Administration
(d) if given to any Holder, at the address set forth on the
books and records of the Trust.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid, except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
Section 804. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders
and is not separately transferable from the Trust Preferred Securities.
Section 805. Interpretation.
In this Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to
them in Section 101;
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(b) a term defined anywhere in this Guarantee Agreement has the
same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise defined in
this Guarantee Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice
versa; and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
Section 806. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
Section 807. Counterparts.
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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THIS GUARANTEE AGREEMENT is executed as of the day and year first
above written.
CP&L ENERGY, INC.
as Guarantor
By: _____________________________
Name:
Title:
____________________,
as Guarantee Trustee, and not
in its individual capacity
By: _____________________________
Name:
Title:
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