Exhibit 1
CAROLINA POWER & LIGHT COMPANY
Senior Notes, 5.95% Series Due March 1, 2009
UNDERWRITING AGREEMENT
March 1, 1999
To the Representative named in Schedule I hereto
of the Underwriters named in Schedule II hereto
Dear Sirs:
The undersigned Carolina Power & Light Company (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
herein shall be deemed to mean the firm or corporation or the several firms or
corporations named in Schedule II hereto and any underwriter substituted as
provided in paragraph 6, and the term "Underwriter" shall be deemed to mean one
of such Underwriters. If the firm or firms listed in Schedule I hereto (the
"Representative") are the same as the firm or firms listed in Schedule II
hereto, then the terms "Underwriters" and "Representative," as used herein,
shall each be deemed to refer to such firm or firms. The Representative
represents that it has 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 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 Notes. The Company proposes to issue and sell its
Senior Notes of the designation, with the terms and in the amount specified in
Schedule I hereto (the "Notes") in one or more new series under a governing
indenture (together with any supplements, the "Senior Note Indenture") each
between the Company and The Bank of New York, as trustee (the "Senior Note
Trustee"), in substantially the form heretofore delivered to the Representative.
Until the Release Date (as defined in the Senior Note Indenture), the Notes will
be secured by one or more series of Senior Note First Mortgage Bonds (as defined
in the Senior Note Indenture) issued and delivered by the Company to the Senior
Note Trustee. On the Release Date, the Notes will cease to be secured by the
Senior Note First Mortgage Bonds and will become unsecured obligations of the
Company. The Senior Note First Mortgage Bonds securing the Notes will be issued
under the Company's Mortgage and Deed of Trust, dated as of May 1, 1940 with The
Bank of New York (formerly Irving Trust Company) and Frederich G. Herbst (W. T.
Cunningham, resigned) (Douglas J. MacInnes, successor) as Mortgage Trustees, as
supplemented and as it will be supplemented by a supplemental indenture relating
to the Senior Note First Mortgage Bonds (the "Sixty-sixth Supplemental
Indenture" and together with the Mortgage and Deed of Trust as supplemented, the
"Mortgage") 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.
333-69237) (the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), for the registration of up to
an aggregate of $1,500,000,000 of the Company's First Mortgage Bonds,
Senior Notes and Debt Securities (collectively, the "Registered
Securities") in unallocated amounts, as each is defined in the
Registration Statement. As of the date hereof, the Company has sold no
Registered Securities. The Registration Statement has been declared
effective by the Commission, and the Mortgage and Senior Note Indenture
have each been qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"). 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
prospectus included in the Registration Statement, as it is to be
supplemented by a prospectus supplement, dated on or about the date
hereof, relating to the Notes (the "Prospectus Supplement"), and all
prior amendments or supplements thereto (other than amendments or
supplements relating to securities of the Company other than the Notes),
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 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 Notes 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.
(b) Prior to the termination of the offering of the Notes, the
Company will not file any amendment to the Registration Statement or
supplement to 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.
(c) The Registration Statement, at the time and date it was
declared effective by the Commission, complied, and the Registration
Statement, the Prospectus, the Senior Note Indenture and the Mortgage,
at the date the Prospectus is filed with, or transmitted for filing to,
the Commission pursuant to Rule 424 under the Securities Act ("Rule
424") and at the Closing Date, will comply, in all material respects,
with the applicable provisions of the Securities Act and the 1939 Act
and the applicable 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; and
the Prospectus, at the date it is filed with, or transmitted for filing
to, the Commission pursuant to Rule 424 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 (c) 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
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use in the Prospectus or to any statements in or omissions from the
Statements of Eligibility (Forms T-1 and T-2) of the trustees under the
Mortgage and the Senior Note Indenture. The Incorporated Documents, when
they were filed with the Commission, complied in all material respects
with the applicable requirements of the Exchange Act and the 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 Notes by the Underwriters will, when
they are filed with the Commission, comply in all material respects with
the requirements of the Exchange Act and the rules and regulations of
the Commission thereunder; and, when read together with the Registration
Statement 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.
(d) The financial statements incorporated by reference in the
Registration Statement 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; and
Deloitte & Touche LLP, who have audited certain of the financial
statements, are independent public or independent certified public
accountants as required by the Securities Act or the Exchange Act and
the rules and regulations of the Commission thereunder.
(e) Except as reflected in, or contemplated by, the Registration
Statement and the Prospectus, since the respective dates as of which
information is given in the Registration Statement and Prospectus, and
prior to the Closing Date, there has not been any material adverse
change in the business, property, financial condition or prospects of
the Company, and since such dates and prior to the Closing Date, there
has not been any material transaction entered into by the Company other
than transactions contemplated by the Registration Statement and
Prospectus and transactions in the ordinary course of business. The
Company has no material contingent obligation which is not disclosed in
the Registration Statement and Prospectus.
(f) 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 charter (the
"Charter"), by-laws and applicable law; and the Notes, when issued and
delivered as provided herein, will constitute legal, valid and binding
obligations of the Company in accordance with their terms except as
limited by bankruptcy, insolvency or other laws affecting mortgagees'
and other creditors' rights and general equitable principles.
(g) The Senior Note First Mortgage Bonds, when issued and
delivered as provided herein, will constitute legal, valid and binding
obligations of the Company in accordance with their terms except as
limited by bankruptcy, insolvency or other laws affecting mortgagees'
and other creditors' rights and general equitable principles; provided,
however, that certain remedies, waivers and other provisions of the
Senior Note First Mortgage Bonds may not be enforceable, but such
unenforceability will not render the Senior Note First Mortgage Bonds
invalid as a whole or affect the judicial enforcement of (i) the
obligation of the Company to repay the principal, together with the
interest thereon as provided in the Senior Note First Mortgage Bonds or
(ii) the right of the Mortgage Trustees to exercise their right to
foreclose under the Mortgage.
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(h) The consummation of the transaction 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, any
indenture, mortgage, deed of trust or other agreement or instrument to
which the Company is now a party.
(i) The summaries of the terms of the Notes and the Senior Note
First Mortgage Bonds contained in the Registration Statement and
Prospectus fairly describe the provisions thereof required to be
described by the registration statement form.
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 Notes set forth
opposite the name of such Underwriter in Schedule II hereto at the purchase
price set forth in Schedule I hereto.
5. Reoffering by Underwriters. The Underwriters agree to make promptly a
bona fide public offering of the Notes to the public for sale as set forth in
the Prospectus, subject, however, to the terms and conditions of this Agreement.
6. Time and Place of Closing; Default of Underwriters.
(a) Payment for the Notes shall be made at the place, time and
date specified in Schedule I hereto against delivery of the Notes at the
office of The Bank of New York, 101 Barclay Street, New York, New York
10286, 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 Notes shall be by wire
transfer of immediately available funds against delivery to The
Depository Trust Company or to The Bank of New York, as custodian for
The Depository Trust Company, in fully registered global form registered
in the name of Cede & Co., 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 The Bank of
New York. For the purpose of expediting the checking of the certificates
by the Representative, the Company agrees to make the Notes available to
the Representative not later than 10 A.M., on the last full business day
prior to the Closing Date at said office of The Bank of New York.
(b) If one or more of the Underwriters shall, for any reason
permitted hereunder, cancel its obligation to purchase hereunder and to
take up and pay for the principal amount of the Notes to be purchased by
such one or more Underwriters, the Company shall immediately notify the
Representative; and the remaining 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 principal amount of the Notes which such one or
more Underwriters did not purchase. 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 Notes to be purchased by such
one or more Underwriters, the Company shall immediately notify the
Representative, and the remaining Underwriters shall be obligated to
take up and pay for (in addition to the respective principal amount of
the Notes set forth opposite their respective names in Schedule II
hereto) the principal amount of the Notes which such defaulting
Underwriter or Underwriters failed to take up and pay for, up to a
principal amount thereof equal to, in the case of each such remaining
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Underwriter, ten percent (10%) of the principal amount of the Notes set
forth opposite the name of such remaining Underwriter in said Schedule
II, and such remaining 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 Notes which the
defaulting Underwriter or Underwriters agreed but failed to purchase. If
any unpurchased Notes 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 Rules of Fair Practice) and satisfactory to the
Company, to purchase or agree to purchase such unpurchased Notes 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 the Representative and the Company
shall fail to procure a satisfactory party or parties as above provided
to purchase or agree to purchase such unpurchased Notes, then the
Company may either (i) require the remaining Underwriters to purchase
the principal amount of Notes which they are obligated to purchase
hereunder or (ii) terminate this Agreement by giving prompt notice to
the Representative. In the event that neither the non-defaulting
Underwriters nor the Company has arranged for the purchase of such
unpurchased Notes by another party or parties as above provided and the
Company has not elected to require the non-defaulting Underwriters to
purchase the principal amount of Notes which they are obligated to
purchase hereunder, then this Agreement shall terminate without any
liability on the part of the Company or any Underwriter (other than an
Underwriter which shall have failed or refused, in accordance with the
terms hereof, to purchase and pay for the principal amount of the Notes
which 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 possible after the execution and delivery of this
Agreement, the Company will file the Prospectus with the Commission
pursuant to Rule 424, setting forth, among other things, the necessary
information with respect to the terms of offering of the Notes. 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, heretofore or hereafter made, (other than those
relating solely to securities other than the Notes), 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 as the
Representative may reasonably request for the purposes required by the
Securities Act.
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(b) During such period (not exceeding nine months) after the
commencement of the offering of the Notes 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
opinion 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 which 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 Notes, 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 earnings 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 Notes.
(e) The Company will advise the Representative 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 Notes,
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. The fees and disbursements
of Underwriters' counsel shall be paid by the Underwriters (subject,
however, to the provisions of paragraph 8 requiring payment by the
Company of fees and expenses not to exceed $5,000); provided, however,
that if this Agreement is terminated in accordance with the provisions
of paragraph 9, 10 or 12, 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 this paragraph 7 and in paragraph 8.
The Company shall not
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in any event be liable to any of the Underwriters for damages on account
of the loss of anticipated profit.
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 Notes 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 Notes under securities laws in
accordance with the provisions of paragraph 7(f), including filing fees and the
fees and disbursements of counsel for the Underwriters in connection therewith,
and in connection with the preparation of the Blue Sky Survey and any Legality
Memorandum, such fees and disbursements not to exceed $5,000, (v) the printing
and delivery to the Underwriters of copies of the Registration Statement and all
amendments thereto, of the preliminary prospectuses, and of the Prospectus and
any amendments or supplements thereto, (vi) the printing and delivery to the
Underwriters of copies of the Blue Sky Survey and Legality Memorandum, (vii) the
preparation, execution, filing and recording by the Company of the Sixty-sixth
Supplemental Indenture (such filing and recordation to be promptly made, after
execution and delivery of such Sixty-sixth Supplemental Indenture to the
Mortgage Trustees under the Mortgage in the counties in which the mortgaged
property of the Company is located); and the Company will pay all taxes, if any
(but not including any transfer taxes), on the issue of the Notes and the filing
and recordation of the Sixty-sixth Supplemental Indenture, and (viii) any
filings required in order to perfect the interests of the Senior Note Trustee in
the Senior Note First Mortgage Bonds and the proceeds thereof.
9. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters to purchase and pay for the Notes shall be subject to the
accuracy of the representations and warranties on the part of the Company as of
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 threatened by,
the Commission on the Closing Date, and the Representative shall have
received, prior to payment for the Notes, a certificate dated the
Closing Date and signed by the Chairman, President 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 orders of the North Carolina Utilities Commission and the
South Carolina Public Service Commission authorizing the issuance and
sale of the Notes and the Senior Note First Mortgage Bonds, none of
which shall 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 & Williams, of counsel to the
Company, which opinion shall be satisfactory in form and substance to
counsel for the Underwriters, and (2) counsel for the Underwriters, in
each of which opinions said counsel (except Hunton & Williams as to
North Carolina law) may rely as to all matters of North Carolina and
South Carolina law upon the opinions of William D. Johnson,
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Esq., Vice President-Legal and Secretary for the Company, and Nelson
Mullins Riley & Scarborough, L.L.P., respectively, to the effect that:
(i) The Senior Note Indenture has been duly and validly
authorized by all necessary corporate action, has been duly and
validly executed and delivered, and is a valid and 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; provided, however, that certain remedies,
waivers and other provisions of the Senior Note Indenture may not
be enforceable, but such unenforceability will not render the
Senior Note Indenture invalid as a whole or affect the judicial
enforcement of (i) the obligation of the Company to repay the
principal, together with the interest thereon as provided in the
Notes or (ii) the right of the Trustee to collect amounts due
under the Senior Note First Mortgage Bonds;
(ii) The Mortgage has been duly and validly authorized by
all necessary corporate action (with this opinion only required
in the Hunton & Williams opinion as to the original Mortgage, the
Sixty-fourth Supplemental Indenture, and subsequent Supplemental
Indentures), has been duly and validly executed and delivered by
the Company (with this opinion only required in the Hunton &
Williams opinion as to the Sixty-fourth Supplemental Indenture
and subsequent Supplemental Indentures), and is a valid and
binding mortgage 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; provided, however, that certain
remedies, waivers and other provisions of the Mortgage may not be
enforceable, but such unenforceability will not render the
Mortgage invalid as a whole or affect the judicial enforcement of
(i) the obligation of the Company to repay the principal,
together with the interest thereon as provided in the Senior Note
First Mortgage Bonds or (ii) the right of the Mortgage Trustees
to exercise their right to foreclose under the Mortgage;
(iii) The Mortgage and the Senior Note Indenture have been
duly qualified under the 1939 Act;
(iv) Assuming authentication by the Trustee (as defined in
the Senior Note Indenture) in accordance with the Senior Note
Indenture and delivery to and payment for the Notes by the
Underwriters, as provided in this Agreement, the Notes 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 the Notes
are entitled to the benefits of the security afforded by the
Senior Note Indenture and will be secured equally and ratably
with all other notes which may be issued under the Senior Note
Indenture except insofar as any sinking or other fund may afford
additional security for the notes of any particular series;
(v) Assuming authentication by the Corporate Trustee (as
defined in the Mortgage) in accordance with the Mortgage and
delivery to and payment for the Notes by the Underwriters, as
provided in this Agreement, the Senior Note First Mortgage Bonds
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 the
Senior Notes First Mortgage Bonds are entitled to the benefits of
the security afforded by the
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Mortgage and are secured equally and ratably with all other bonds
outstanding under the Mortgage except insofar as any sinking or other
fund may afford additional security for the bonds of any particular
series;
(vi) The statements made in the Prospectus under the
captions "Description of First Mortgage Bonds" and "Description
of Senior Notes" and in the Prospectus Supplement titled "Certain
Terms of the Notes" insofar as they purport to constitute
summaries of the documents referred to therein, are correct in
all material respects;
(vii) This Agreement has been duly and validly authorized,
executed and delivered by the Company;
(viii) The Registration Statement, at the time and date it
was declared effective by the Commission, and the Prospectus, at
the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424, (except as to the financial
statements and other financial and statistical data constituting
a part thereof or incorporated by reference therein, upon which
such opinions need not pass), complied as to form in all material
respects with the requirements of the Securities Act and the 1939
Act and the applicable instructions, rules and regulations of the
Commission thereunder; the documents or portions thereof filed
with the Commission pursuant to the Exchange Act and deemed to be
incorporated by reference in the Registration Statement and the
Prospectus pursuant to Item 12 of Form S-3 (except as to
financial statements and other financial and statistical data
constituting a part thereof or incorporated by reference therein,
upon which such opinions need not pass), at the time they were
filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act and the
applicable instructions, rules and regulations of the Commission
thereunder; the Registration Statement has become effective under
the Securities Act and, to the best of the knowledge of said
counsel, no proceedings for a stop order with respect thereto are
threatened or pending under Section 8 of the Securities Act;
(ix) 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 or that the
Prospectus, at the time it was filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 or 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 or the
Prospectus or incorporated by reference therein, upon which such
opinions need not pass); and
(x) Orders have been entered by the North Carolina
Utilities Commission and the South Carolina Public Service
Commission authorizing the issuance and sale of the Notes and the
Senior Note First Mortgage Bonds, and to the best of the
knowledge of said counsel, said orders are still in force and
effect; and no further 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.
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(d) At the Closing Date, the Representative shall receive from
William D. Johnson, Esq., Vice President and Secretary for 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) through (vii) and subdivisions (ix) and
(x) of subparagraph (c) of this paragraph 9 as the opinions required by
said subparagraph (c), and to the further effect that:
(i) The Company is a validly organized and existing
corporation and is in good standing under the laws of the State
of North Carolina and is duly qualified to do business as an
electrical utility and is doing business in that State and in the
State of South Carolina;
(ii) The Company is duly authorized by its Charter to
conduct the business which it is now conducting as set forth in
the Prospectus;
(iii) The Company has valid and subsisting franchises,
licenses and permits free from burdensome restrictions and
adequate for the conduct of its business;
(iv) The information contained in the Prospectus that is
stated therein to have been made in reliance upon the opinion of
said counsel has been reviewed by said counsel and is correct;
(v) The Company has good and marketable title, with minor
exceptions, restrictions and reservations in conveyances, and
defects, which are of the nature ordinarily found in properties
of similar character and magnitude, and which, in his opinion,
cannot in any substantial way impair the security afforded by the
Mortgage, to all the properties described in the granting clauses
of the Mortgage and upon which the Mortgage purports to create a
lien, except certain rights-of-way over private property on which
are located transmission and distribution lines formerly owned by
the Tide Water Power Company (merged into the Company on February
29, 1952), title to which can be perfected by condemnation
proceedings. The description in the Mortgage of the
above-mentioned properties (including those formerly owned by
Tide Water Power Company) is legally sufficient to constitute the
Mortgage a lien upon said properties. Said properties constitute
substantially all the permanent physical properties and
franchises of the Company and are held by the Company free and
clear of all liens and encumbrances except the lien of the
Mortgage and Excepted Encumbrances, as defined in the Mortgage.
The Company has followed the practice generally of purchasing
rights-of-way and easements and certain small parcels of fee
property appurtenant thereto and for use in conjunction
therewith, and certain other properties of small or
inconsequential value, without an examination of title and, as to
the title to lands affected by rights-of-way and easements, of
not examining the title of the lessor or grantor whenever the
lands affected by such rights-of-way and easements are not of
such substantial value as in the opinion of the Company to
justify the expense attendant upon examination of titles in
connection therewith. In his opinion such practice of the Company
is consistent with good practice and with the method followed by
other companies engaged in the same business and is reasonably
adequate to assure the Company of good and marketable title to
all such property acquired by it. It is his opinion that any such
conditions or defects as may be covered by the above recited
exceptions are not, except as to certain rights-of-way on which
are located transmission lines acquired from Tide Water Power
Company, substantial and would not interfere
10
with the Company's business operations. The Company has the right
of eminent domain in the States of North Carolina and South
Carolina under which it may, if necessary, perfect or obtain
title to privately owned land or acquire easements or
rights-of-way required for use or used by the Company in its
public utility operations;
(vi) The Company's Mortgage and Deed of Trust dated as of
May 1, 1940 and the First through the Sixty-fifth Supplemental
Indentures thereto have been recorded and filed in such manner
and in such places as may be required by law in order fully to
preserve and protect the security of the bondholders and all
rights of the Mortgage Trustees thereunder; and the Sixty-sixth
Supplemental Indenture relating to the Senior Note First Mortgage
Bonds is in proper form for filing for record both as a real
estate mortgage and as a security interest in all counties in the
States of North Carolina and South Carolina in which any of the
property (except as any therein or in the Mortgage are expressly
excepted) described therein or in the Mortgage as subject to the
lien of the Mortgage is located;
(vii) The Mortgage constitutes a valid first mortgage lien
of record upon all the franchises and properties now owned by the
Company (other than those expressly excepted therefrom) situated
in the States of North Carolina and South Carolina, as described
or referred to in the granting clauses of the Mortgage, subject
to the exceptions as to bankruptcy, insolvency and other laws
stated in subdivision (ii) of subparagraph (c) above; and
(viii) The issuance and sale of the Notes and the issuance
and delivery of the Senior Note First Mortgage Bonds have been
duly authorized by all necessary corporate action on the part of
the Company.
In said opinion such counsel may rely as to all matters of South Carolina law
(except as to subdivisions (iii), (v) and (vii) of this subparagraph (d)) on the
opinion of Nelson Mullins Riley & Scarborough, L.L.P., and as to all matters of
New York law on the opinion of Hunton & Williams.
(e) At the Closing Date, the Representative shall receive from
Nelson Mullins Riley & Scarborough, L.L.P., a favorable opinion in form
and substance satisfactory to counsel for the Underwriters, to the
effect that:
(i) The Company is an electrical utility engaged in the
business of generating, transmitting, distributing and selling
electric power to the general public in the states of South
Carolina and North Carolina. The Company conducts its South
Carolina retail operations subject to the jurisdiction of the
South Carolina Public Service Commission pursuant to South
Carolina Code Annotated, Sections 58-27-10 et seq. (1976 as
amended);
(ii) The Company is duly qualified to transact business in
the State of South Carolina;
(iii) The Company's Mortgage and Deed of Trust dated as of
May 1, 1940 and the First through the Sixty-fifth Supplemental
Indentures thereto have been recorded and filed in such manner
and in such places as may be required by law, in the State of
South Carolina, in order fully to preserve and protect the
security of the bondholders and all rights of the Trustees
thereunder;
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(iv) The Sixty-sixth Supplemental Indenture to the
Mortgage relating to the Senior Note First Mortgage Bonds is in
proper form for filing for record both as a real estate mortgage
and as a security interest in all counties in the State of South
Carolina in which any of the property (except as any therein or
in the Mortgage, as heretofore supplemented, are expressly
excepted) described therein or in the Mortgage as subject to the
lien of the Mortgage is located;
(v) They have reviewed the opinion letter of even date
therewith addressed to you by William D. Johnson, Esq., Vice
President-Legal and Secretary for the Company, and they concur,
insofar as they relate to the laws of the State of South
Carolina, with the opinions that he has expressed therein
corresponding with subdivisions (ii) and (x) of subparagraph (c)
of this paragraph 9, and subdivisions (i) and (vi) of
subparagraph (d) of this paragraph 9; and
(f) At the time of execution of this Agreement and at the Closing
Date, the Representative shall have received from Deloitte & Touche LLP
letters, dated respectively the date of this Agreement and the Closing
Date, confirming that they are independent certified public accountants
within the meaning of the Securities Act and the Exchange Act, and of
the applicable published rules and regulations thereunder, and stating
in effect that: (i) in their opinion, the audited financial statements
incorporated by reference in the Registration Statement comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act or the Exchange Act, as applicable,
and of the published rules and regulations thereunder; (ii) based on the
performance of the procedures specified by the American Institute of
Certified Public Accountants for review of interim financial information
as described in Statement on Auditing Standards ("SAS") No. 71, Interim
Financial Information, on the unaudited financial statements
incorporated by reference in the Registration Statement, inquiries of
officials of the Company responsible for financial and accounting
matters and reading the minutes of meetings of the Board of Directors,
of the Executive Committee of the Board of Directors and of the
shareholders, nothing came to their attention that caused them to
believe that (A) the unaudited financial statements incorporated by
reference in the Registration Statement do not comply as to form in all
material respects with the applicable accounting requirements of the
Securities Act or the Exchange Act, as applicable, and the published
rules and regulations thereunder or any material modifications should be
made for them to be in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the
most recent audited financial statements incorporated by reference in
the Registration Statement; or (B) at the date of the latest available
interim balance sheet read by them and at a subsequent date not more
than five days prior to the date of each such letter, there was any
change in the capital stock or long-term debt of the Company, or at the
date of the latest available interim balance sheet read by them, there
was any decrease in net assets as compared with the amount shown on the
most recent balance sheet incorporated by reference in the Registration
Statement, except for changes or decreases that the Registration
Statement discloses have occurred or may occur, for declarations of
dividends, for common stock sales under the Automatic Dividend
Reinvestment and Customer Stock Ownership Plan and Stock
Purchase-Savings Plan, or for changes or decreases that are described in
such letter; and (iii) covering such other matters as the Representative
shall reasonably request.
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(g) At the Closing Date, the Representative shall receive a
certificate of the Chairman, President 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.
(h) All legal proceedings taken in connection with the sale and
delivery of the Notes shall have been satisfactory in form and substance
to counsel for the Underwriters.
In case any of the conditions specified above in this paragraph 9 shall
not have been fulfilled at the Closing Date, this Agreement may be terminated by
the Representative by mailing or 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.
10. Conditions of the Company's Obligations. The obligations of the
Company to deliver the Notes and the Senior Note First Mortgage Bonds 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 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 orders of the North Carolina
Utilities Commission and the South Carolina Public Service Commission
authorizing the issuance and sale by the Company of the Notes and the
Senior Note First Mortgage Bonds, none of which shall contain any
provision unacceptable to the Company by reason of its being materially
adverse to the Company (it being understood that no such 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 mailing or 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.
11. Indemnification.
(a) The Company agrees to indemnify and hold harmless 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 under the Securities Act or under any other
statute or common law and to reimburse each such Underwriter and
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, any preliminary prospectus 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
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
13
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 for use in
the Registration Statement or Prospectus, or any amendment or supplement
to either thereof, or arising out of, or based upon, statements in or
omissions from that part of the Registration Statement which shall
constitute the Statements of Eligibility under the 1939 Act (Forms T-1
and T-2) of the Mortgage Trustees under the Mortgage and the Senior Note
Trustee under the Senior Note Indenture, 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 Notes to
any person if a copy of the Prospectus (excluding documents incorporated
by reference therein) shall not have been given or sent to such person
by or on behalf of such Underwriter with or prior to the written
confirmation of the sale involved, unless such Prospectus failed to
correct the omission or statement. 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 or any such controlling person
and shall survive the delivery of the Notes. 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 controlling person, in connection with the sale of the
Notes.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its officers and 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 under the
Securities Act or under any other statute or common law, 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 or Prospectus as amended or supplemented (if any
amendments or supplements thereto shall have been furnished), 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 through the Representative for use in the
Registration Statement or the Prospectus or any amendment or supplement
to either 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 controlling
person, and shall survive the delivery of the Notes. 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 Notes.
(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 and 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
14
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 which it or they may have to the indemnified party on
account of any indemnity agreement contained herein but shall not
relieve such indemnifying party or parties from any liability which 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 in any such action include both the indemnified party and the
indemnifying party and counsel for the indemnifying party shall have
reasonably concluded 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 representing the indemnified parties who are parties to
such action).
(d) If the indemnification provided for in subparagraphs (a) or
(b) above shall be unenforceable under applicable law by an indemnified
party, each indemnifying party agrees to contribute to such indemnified
party with respect to any and all losses, claims, damages, liabilities
and expenses for which each indemnification provided for in such
subparagraphs (a) or (b) shall be unenforceable, in such proportion as
shall be appropriate to reflect the relative fault of each indemnifying
party on the one hand and the indemnified party on the other in
connection with the statements or omissions which have resulted in such
losses, claims, damages, liabilities, and expenses, as well as any other
relevant equitable considerations; provided, however, that no
indemnified party guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act), shall be entitled to
contribution from any indemnifying party not guilty of such fraudulent
misrepresentation. Relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by such indemnifying party or the
indemnified party and each such party's relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The Company and each of the Underwriters agree
that it would not be just and equitable if contributions pursuant to
this subparagraph 11(d) were to be determined by pro rata allocation or
by any other method of allocation which does not take account of the
equitable considerations referred to above. The Underwriters' respective
obligations to contribute pursuant to this subparagraph 11(d) are
several and not joint.
(e) For purposes of this paragraph 11, it is understood and
agreed that the only information provided by the Underwriters for
inclusion in the Registration Statement and the Prospectus were the
following parts of the Section titled "Underwriting": the last three
sentences of the second paragraph, the third sentence of the third
paragraph, and all of the fourth paragraph.
15
12. Termination Date of this Agreement. This Agreement may be terminated
by the Representative at any time prior to the Closing Date by mailing or
delivering written notice thereof to the Company, if prior to such time (a)
there shall have occurred any general suspension of trading in securities on the
New York or Pacific Stock Exchange, or there shall have been established by the
New York or Pacific 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, an escalation of hostilities which existed prior to the date of this
Agreement, or other national or international calamity or crisis, the effect of
which 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 Notes, or (c) the Company
shall have sustained a substantial loss by fire, flood, accident or other
calamity which renders it impracticable, in the reasonable judgment of the
Representative, to consummate the sale of the Notes and the delivery of the
Notes 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), that, in the
reasonable judgment of the Representative, makes it impracticable or inadvisable
to consummate the sale of the Notes and the delivery of the Notes by the several
Underwriters at the initial public offering price. 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 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 Notes. 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, the officers and directors
and each controlling person referred to in paragraph 11, 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 Notes from any of the several Underwriters.
14. 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 Representative at the
address set forth in Schedule I hereto and if to the Company, shall be mailed or
delivered to it at 411 Fayetteville Street, Raleigh, North Carolina 27601-1748,
attention of Mark F. Mulhern, Treasurer.
15. 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.
16. Defined Terms. Unless otherwise defined herein, capitalized terms
used in this Underwriting Agreement shall have the meanings assigned to them in
the Registration Statement.
16
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,
CAROLINA POWER & LIGHT COMPANY
By: /s/ Mark F. Mulhern
----------------------------
Authorized Representative
Accepted as of the date first
above written, as Underwriter
named in, and as the Representative
of the other Underwriters named in, Schedule II.
SALOMON SMITH BARNEY INC.
By: /s/ Peter Kind
------------------------------
Authorized Representative
17
SCHEDULE I
Underwriting Agreement dated March !, 1999
Registration Statement No. 333-69237
Representative and Address:
Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Attention: Peter Kind, Director
Designation: Senior Notes, 5.95% Series Due March 1, 2009
Principal Amount: $400,000,000
Secured by: First Mortgage Bonds, 5.95% Senior Note Series Due March 1, 2009
Indenture (For Senior Notes) dated as of March 1, 1999 and First
Supplemental Indenture to Indenture (For Senior Notes) dated as of
March 1, 1999
Date of Maturity: March 1, 2009
Interest Rate: 5.95% per annum, payable March 1 and September 1 of each year,
commencing September 1, 1999.
Purchase Price: 97.597% of the principal amount thereof.
Public Offering Price: 98.247% of the principal amount thereof.
Redemption Terms: Redeemable prior to maturity at the option of the
Company at the greater of (i) the outstanding principal
amount or (ii) the present value of the remaining
payments, computed by discounting at the Treasury Yield
plus 15 basis points (as defined, and described in further
detail, in the Prospectus Supplement).
Closing Date and Location:
March 5, 1999
Hunton & Williams
One Hannover Square, 14th Floor
Raleigh, North Carolina 27601
18
SCHEDULE II
Underwriters Principal Amount
------------ ----------------
Salomon Smith Barney Inc. $100,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $100,000,000
Chase Securities Inc. $40,000,000
First Chicago Capital Markets, Inc. $40,000,000
First Union Capital Markets Corp. $40,000,000
J.P. Morgan Securities Inc. $40,000,000
Warburg Dillon Read LLC $40,000,000
TOTAL.................... $400,000,000
============
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