Exhibit 10(ii)
EXECUTION COPY
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(five-year)
$450,000,000
CREDIT AGREEMENT
Dated as of March 28, 2005
FLORIDA POWER CORPORATION d/b/a PROGRESS ENERGY FLORIDA, INC.
(Company)
and
THE BANKS LISTED ON THE SIGNATURE PAGES HEREOF
(Banks)
and
THE OTHER LENDERS FROM TIME TO TIME
PARTY HERETO
(Lenders)
and
BANK OF AMERICA, N.A.
(Administrative Agent)
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BARCLAYS BANK PLC
(Syndication Agent)
and
BANK OF AMERICA SECURITIES LLC
and
BARCLAYS CAPITAL,
the investment banking division of Barclays Bank PLC
(Joint Lead Arrangers)
TABLE OF CONTENTS
Section Page
Article I DEFINITIONS AND ACCOUNTING TERMS........................................................................1
SECTION 1.01. Certain Defined Terms......................................................................1
SECTION 1.02. Interpretive Provisions, Computation of Time Periods......................................10
SECTION 1.03. Accounting Terms..........................................................................11
Article II AMOUNTS AND TERMS OF THE ADVANCES.....................................................................11
SECTION 2.01. The Advances..............................................................................11
SECTION 2.02. Making the Advances.......................................................................12
SECTION 2.03. Facility Fee..............................................................................13
SECTION 2.04. Changes in the Commitments................................................................14
SECTION 2.05. Repayment of Advances.....................................................................14
SECTION 2.06. Evidence of Indebtedness..................................................................14
SECTION 2.07. Interest on Advances......................................................................15
SECTION 2.08. Additional Interest on Eurodollar Rate Advances...........................................15
SECTION 2.09. Interest Rate Determination...............................................................16
SECTION 2.10. Voluntary Conversion of Advances..........................................................16
SECTION 2.11. Prepayments of Advances...................................................................17
SECTION 2.12. Increased Costs...........................................................................17
SECTION 2.13. Illegality................................................................................18
SECTION 2.14. Payments and Computations.................................................................18
SECTION 2.15. Sharing of Payments, Etc..................................................................20
Article III CONDITIONS OF LENDING................................................................................20
SECTION 3.01. Conditions Precedent to Closing...........................................................20
SECTION 3.02. Conditions Precedent to Each Borrowing....................................................21
Article IV REPRESENTATIONS AND WARRANTIES........................................................................22
SECTION 4.01. Representations and Warranties of the Company.............................................22
Article V COVENANTS OF THE COMPANY...............................................................................23
SECTION 5.01. Affirmative Covenants.....................................................................23
SECTION 5.02. Negative Covenants........................................................................26
Article VI EVENTS OF DEFAULT.....................................................................................27
SECTION 6.01. Events of Default.........................................................................27
Article VII THE ADMINISTRATIVE AGENT.............................................................................29
SECTION 7.01. Appointment and Authority.................................................................29
SECTION 7.02. Rights as a Lender........................................................................29
SECTION 7.03. Exculpatory Provisions....................................................................29
SECTION 7.04. Reliance by Administrative Agent..........................................................30
SECTION 7.05. Delegation of Duties......................................................................31
SECTION 7.06. Resignation of Administrative Agent.......................................................31
SECTION 7.07. Non-Reliance on Administrative Agent and Other Lenders....................................32
SECTION 7.08. No Other Duties, Etc......................................................................32
Article VIII MISCELLANEOUS.......................................................................................32
SECTION 8.01. Amendments, Etc...........................................................................32
SECTION 8.02. Notices, Etc..............................................................................33
SECTION 8.03. No Waiver; Remedies.......................................................................36
SECTION 8.04. Costs, Expenses and Taxes.................................................................36
SECTION 8.05. Right of Set-off..........................................................................40
SECTION 8.06. Binding Effect............................................................................40
SECTION 8.07. Assignments and Participations............................................................41
SECTION 8.08. Governing Law.............................................................................45
SECTION 8.09. WAIVER OF JURY TRIAL......................................................................46
SECTION 8.10. Execution in Counterparts.................................................................46
SECTION 8.11. Severability..............................................................................47
SECTION 8.12. Headings..................................................................................47
SECTION 8.13. Entire Agreement..........................................................................47
SECTION 8.14. Payments Set Aside........................................................................47
SECTION 8.15. Treatment of Certain Information; Confidentiality.........................................47
SECTION 8.16. Survival of Representations and Warranties................................................48
SECTION 8.17. USA PATRIOT Act Notice....................................................................48
SCHEDULES
I Existing Facilities
II Commitments
8.07 Processing And Recordation Fees
EXHIBITS
A-1 Form of Notice of Borrowing
A-2 Form of Notice of Conversion
B Form of Promissory Note
C Form of Assignment and Assumption
D-1 Form of Opinion of General Counsel for the Company
D-2 Form of Opinion of Counsel for the Company
E Form of Opinion of Counsel for the Administrative Agent
CREDIT AGREEMENT
This Credit Agreement dated as of March 28, 2005 (this "Agreement") by and
among FLORIDA POWER CORPORATION d/b/a PROGRESS ENERGY FLORIDA, INC., a Florida
corporation (the "Company"), the banks listed on the signature pages hereof (the
"Banks"), the other Lenders parties hereto from time to time, BARCLAYS BANK PLC,
as Syndication Agent, BANC OF AMERICA SECURITIES LLC and BARCLAYS CAPITAL, the
investment banking division of Barclays Bank PLC, as Joint Lead Arrangers (the
"Arrangers"), and BANK OF AMERICA, N.A. ("Bank of America"), as Administrative
Agent for the Lenders (as hereinafter defined) hereunder.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.
As used in this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Administrative Agent" means Bank of America in its capacity as
administrative agent for the Lenders, or any successor administrative agent.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Advance" means an advance by a Lender to the Company as part of a
Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance, each
of which shall be a "Type" of Advance.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, through one or more intermediaries, Controls, is Controlled by, or
is under common Control with such Person or is a director or officer of such
Person.
"Applicable Lending Office" means, with respect to each Lender, (i) such
Lender's Domestic Lending Office in the case of a Base Rate Advance, or (ii)
such Lender's Eurodollar Lending Office, in the case of a Eurodollar Rate
Advance.
"Applicable Margin" means on any date, the rate per annum set forth below
for the applicable Type of Advance, determined by reference to the ratings
assigned to the Reference Securities:
---------------- -------------- ---------------- ---------------- ------------------ ---------------- ----------------
Basis for XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 5 LEVEL 6
Pricing If the If the If the If the Reference If the If the
Reference Reference Reference Securities are Reference Reference
Securities Securities are Securities are rated lower than Securities are Securities are
are rated at rated lower rated lower Level 3 but at rated lower rated lower
least A by than Xxxxx 0 xxxx Xxxxx 0 least BBB by S&P than Xxxxx 0 xxxx Xxxxx 0
S&P or at but at least but at least or at least Baa2 but at least or unrated
least A2 by A- by S&P or BBB+ by S&P or by Xxxxx'x BBB- by S&P or
Xxxxx'x at least A3 by at least Baa1 at least Baa3
Xxxxx'x by Xxxxx'x by Xxxxx'x
---------------- -------------- ---------------- ---------------- ------------------ ---------------- ----------------
Eurodollar Rate 0.270% 0.275% 0.375% 0.450% 0.575% 0.750%
---------------- -------------- ---------------- ---------------- ------------------ ---------------- ----------------
Base Rate 0.0% 0.0% 0.0% 0.0% 0.0% 0. 0%
---------------- -------------- ---------------- ---------------- ------------------ ---------------- ----------------
The Applicable Margin will increase by 0.125% at any time that more
than 50% of the Commitments are utilized. The Applicable Margin will be
redetermined on the date of any change in the rating assigned by S&P or
Xxxxx'x, as the case may be, to the Reference Securities. If and so
long as an Event of Default shall have occurred and shall be
continuing, the Applicable Margin will increase by 2.00%. If the
ratings assigned to the Reference Securities by S&P and Xxxxx'x are not
comparable (i.e., a "split rating"), and (i) the ratings differential
is one category, the higher of such two ratings shall control, or (ii)
the ratings differential is two or more categories, the rating that is
one below the higher of the two ratings shall control.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arrangers" has the meaning specified in the introductory paragraph hereof.
"Assignee Group" means two or more Eligible Assignees that are Affiliates
of one another or two or more Approved Funds managed by the same investment
advisor.
"Assignment and Assumption" means an Assignment and Assumption entered into
by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 8.07), and accepted by the Administrative Agent,
in substantially the form of Exhibit C hereto.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"Bank" has the meaning specified in the introductory paragraph hereof.
"Base Rate" means, for any period, a fluctuating interest rate per annum as
shall be in effect from time to time, which rate per annum shall at all times be
equal to the higher from time to time of:
(i) the rate of interest announced publicly by Bank of America, from
time to time, as Bank of America's prime rate; and
(ii) 1/2 of one percent per annum above the Federal Funds Rate in
effect from time to time.
The "prime rate" is a rate set by Bank of America based upon various
factors including Bank of America's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate. Any change
in such rate announced by Bank of America shall take effect at the opening of
business on the day specified in the public announcement of such change.
"Base Rate Advance" means an Advance that bears interest as provided in
Section 2.07(a).
"Bank of America" has the meaning specified in the introductory paragraph
hereof, and shall include its successors and assigns.
"Borrowing" means a borrowing consisting of simultaneous Advances of the
same Type made by each of the Lenders pursuant to Section 2.01 or Converted
pursuant to Section 2.09 or 2.10.
"Business Day" means a day of the year on which banks are not required or
authorized to close in the State where the Domestic Lending Office of the
Administrative Agent is located and, if the applicable Business Day relates to
any Eurodollar Rate Advances, on which dealings are carried on in the London
interbank market.
"Change of Control" means the occurrence, after the date of this Agreement,
of (i) any Person or "group" (within the meaning of Rule 13(d) or 14(d) of the
Securities and Exchange Commission under the Exchange Act), directly or
indirectly, acquiring beneficial ownership of or control over securities of
Progress Energy, Inc., representing in excess of 30% of the combined voting
power of all securities of Progress Energy, Inc. entitled to vote in the
election of directors of Progress Energy, Inc. or (ii) Progress Energy, Inc.
shall fail to own, directly or indirectly, 95% of all securities of the Company
entitled to vote in the election of directors of the Company.
"Closing Date" means the first date all the conditions precedent in Section
3.01 are satisfied or waived in accordance with Section 8.01.
"Commitment" has the meaning specified in Section 2.01.
"Company" has the meaning specified in the introductory paragraph hereof.
"Company Materials" has the meaning specified in Section 8.02(d).
"Consolidated" refers to the consolidation of the accounts of the Company
and its Subsidiaries in accordance with GAAP, including principles of
consolidation, consistent with those applied in the preparation of the financial
statements referred to in Section 4.01(e).
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Advances of one Type into Advances of another Type, or the selection of a new,
or the renewal of the same, Interest Period for Eurodollar Rate Advances,
pursuant to Section 2.09 or 2.10.
"Default" means any event or condition that with the giving of any notice,
the passage of time, or both, would constitute an Event of Default.
"Domestic Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "Domestic Lending Office" opposite its name on
Schedule II hereto or such other office of such Lender as such Lender may from
time to time specify to the Company and the Administrative Agent.
"Eligible Assignee" means (i) any other Lender, any Affiliate of a Lender
or any Approved Fund and (ii) a Person (other than a natural person) approved by
the Administrative Agent and the Company (such consent not to be unreasonably
withheld or delayed and, in the case of the Company, such consent shall not be
required if a Default or an Event of Default has occurred and is continuing);
provided, that, in the case of this clause (ii), "Eligible Assignee" shall not
include the Company or any of the Company's Affiliates or Subsidiaries.
"Environmental Laws" means any federal, state or local laws, ordinances or
codes, rules, orders, or regulations relating to pollution or protection of the
environment, including, without limitation, laws relating to hazardous
substances, laws relating to reclamation of land and waterways and laws relating
to emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or wastes
into the environment (including, without limitation, ambient air, surface water,
ground water, land surface or subsurface strata) or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollution, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Company or any of its Subsidiaries directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to each Lender, the office
of such Lender specified as its "Eurodollar Lending Office" opposite its name on
Schedule II hereto (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify to the Company and the Administrative Agent.
"Eurodollar Rate" means, for the Interest Period for each Eurodollar Rate
Advance comprising part of the same Borrowing an interest rate per annum equal
to the British Bankers Association LIBOR Rate ("BBA LIBOR"), as published by
Reuters (or other commercially available source providing quotations of BBA
LIBOR as designated by the Administrative Agent from time to time) at 11:00 a.m.
(London time), two Business Days prior to the commencement of such Interest
Period, for dollar deposits (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period. If such rate is not
available at such time for any reason, then the "Eurodollar Rate" for such
Interest Period shall be the rate per annum determined by the Administrative
Agent to be the rate at which deposits in U.S. dollars for delivery on the first
day of such Interest Period in same day funds in the approximate amount of the
Eurodollar Rate Advance being made, continued or converted by Bank of America
and with a term equivalent to such Interest Period would be offered by Bank of
America's London Branch to major banks in the London interbank eurodollar market
at their request at approximately 11:00 a.m. (London time) two Business Days
prior to the commencement of such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest as provided
in Section 2.07(b).
"Eurodollar Rate Reserve Percentage" of any Lender for the Interest Period
for any Eurodollar Rate Advance means the reserve percentage (expressed as a
decimal, carried out to five decimal places) applicable during such Interest
Period (or if more than one such percentage shall be so applicable, the daily
average of such percentages for those days in such Interest Period during which
any such percentage shall be so applicable) under regulations issued from time
to time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve requirement)
for such Lender with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such Interest Period.
"Events of Default" has the meaning assigned to that term in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, and the
regulations promulgated thereunder, in each case as amended and in effect from
time to time.
"Existing Facilities" refers to those credit agreements listed on Schedule
I hereto.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day;
provided that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (b) if no such rate
is so published on such next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to Bank of America on such day on such
transactions as determined by the Administrative Agent for all of its loans on
which interest is determined based on the Federal Funds Rate.
"First Mortgage Bonds" means those bonds issued by the Company pursuant to
the Mortgage.
"FPSC Order" means the order by the Florida Public Service Commission that
authorizes the Company to execute, deliver and perform this Agreement.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means, with respect to the covenants contained in Section 5.01 and
all defined terms relating thereto, generally accepted accounting principles in
the United States of America in effect on the date hereof and consistent with
those used in the preparation of the most recent financial statements referred
to in Section 4.01(e) and, for all other purposes under this Agreement,
generally accepted accounting principles in the United States of America in
effect from time to time.
"Guaranty" of any Person means any obligation, contingent or otherwise, of
such Person (i) to pay any Liability of any other Person or to otherwise
protect, or having the practical effect of protecting, the holder of any such
Liability against loss (whether such obligation arises by virtue of such Person
being a partner of a partnership or participant in a joint venture or by
agreement to pay, to keep well, to purchase assets, goods, securities or
services or to take or pay, or otherwise) or (ii) incurred in connection with
the issuance by a third Person of a Guaranty of any Liability of any other
Person (whether such obligation arises by agreement to reimburse or indemnify
such third Person or otherwise). The word "Guarantee" when used as a verb has
the correlative meaning.
"Indebtedness" of any Person means (i) any obligation of such Person for
borrowed money, (ii) any obligation of such Person evidenced by a bond,
debenture, note or other similar instrument, (iii) any obligation of such Person
to pay the deferred purchase price of property or services, except a trade
account payable that arises in the ordinary course of business but only if and
so long as the same is payable on customary trade terms or terms consistent with
prior practices of the Company prior to the Closing Date, (iv) any obligation of
such Person as lessee under a capital lease or any Synthetic Lease Obligations,
(v) any Mandatorily Redeemable Stock of such Person (the amount of such
Mandatorily Redeemable Stock to be determined for this purpose as the higher of
the liquidation preference and the amount payable upon redemption of such
Mandatorily Redeemable Stock), (vi) any obligation of such Person to purchase
securities or other property that arises out of or in connection with the sale
of the same or substantially similar securities or property, (vii) any
non-contingent obligation of such Person to reimburse any other Person in
respect of amounts paid under a letter of credit or other Guaranty issued by
such other Person to the extent that such reimbursement obligation remains
outstanding after it becomes non-contingent, (viii) any Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) a mortgage, lien, pledge, charge or
other encumbrance on any asset of such Person, (ix) any Liabilities in respect
of unfunded vested benefits under plans covered by Title IV of ERISA, and (x)
any Indebtedness of others Guaranteed by such Person.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
and effectively made non-recourse to such Person. The amount of any capital
lease or Synthetic Lease Obligation as of any date shall be deemed to be the
amount of Attributable Indebtedness in respect thereof as of such date.
"Information" has the meaning specified in Section 8.16.
"Interest Period" means, for each Eurodollar Rate Advance comprising part
of the same Borrowing, the period commencing on the date of such Advance or the
Conversion of any Advance to such Advance and ending on the last day of the
period selected by the Company pursuant to the provisions below and, thereafter,
each subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by the Company
pursuant to the provisions below. The duration of each such Interest Period
shall be one, two, three or six months, as the Company may, in the Notice of
Borrowing given by the Company to the Administrative Agent pursuant to Section
2.02, select; provided, however, that:
(i) the Company may not select any Interest Period that ends after the
Commitment Termination Date;
(ii) Interest Periods commencing on the same date for Advances
comprising the same Borrowing shall be of the same duration; and
(iii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business Day;
provided that if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day.
The Administrative Agent shall promptly advise each Lender by telex,
telecopy transmission or cable of each Interest Period so selected by
the Company.
"Lenders" means the Banks listed on the signature pages hereof and each
Eligible Assignee that shall become a party hereto pursuant to Section 8.07.
"Liability" of any Person means any indebtedness, liability or obligation
of or binding upon, such Person or any of its assets, of any kind, nature or
description, direct or indirect, absolute or contingent, due or not due,
contractual or tortious, liquidated or unliquidated, whether arising under
contract, applicable law, or otherwise, whether now existing or hereafter
arising.
"Majority Lenders" means at any time Lenders holding more than 50% of the
then aggregate unpaid principal amount of the Advances, or, if no such principal
amount is then outstanding, Lenders having more than 50% of the Commitments
(provided that, for purposes hereof, neither the Company, nor any of its
Affiliates, if a Lender, shall be included in (i) the Lenders holding such
amount of the Advances or having such amount of the Commitments or (ii)
determining the aggregate unpaid principal amount of the Advances or the total
Commitments).
"Mandatorily Redeemable Stock" means, with respect to any Person, any share
of such Person's capital stock to the extent that it is (i) redeemable, payable
or required to be purchased or otherwise retired or extinguished, or convertible
into any Indebtedness or other Liability of such Person, (ii) at a fixed or
determinable date, whether by operation of a sinking fund or otherwise, (iii) at
the option of any Person other than such Person or (iv) upon the occurrence of a
condition not solely within the control of such Person, such as a redemption
required to be made out of future earnings or (v) convertible into Mandatorily
Redeemable Stock.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor thereto.
"Mortgage" means the Indenture, dated as of January 1, 1944, between the
Company, Guaranty Trust Company of New York and the Florida National Bank of
Jacksonville, as modified, amended or supplemented from time to time.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Conversion" has the meaning specified in Section 2.10.
"OECD" means the Organization for Economic Cooperation and Development.
"Participant" has the meaning specified in Section 8.07(e).
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a foreign state or
political subdivision thereof or any agency of such state or subdivision.
"Plan" means an employee benefit plan (other than a Multiemployer Plan)
maintained for employees of the Company or any of its Affiliates and covered by
Title IV of ERISA.
"Platform" has the meaning specified in Section 8.02(c).
"Public Lender" has the meaning specified in Section 8.02(c).
"Reference Securities" means the long-term unsecured senior, non-credit
enhanced debt of the Company.
"Register" has the meaning specified in Section 8.07(c).
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents, advisors
and representatives of such Person and of such Person's Affiliates.
"Responsible Officer" means the President, any Vice President, the Chief
Financial Officer, the Treasurer, the Controller or any Assistant Treasurer of
the Company the signatures of whom, in each case, have been certified to the
Administrative Agent and each other Bank pursuant to Section 3.01(a)(iii), or in
a certificate delivered to the Administrative Agent replacing or amending such
certificate. Each Lender may conclusively rely on each certificate so delivered
until it shall have received a copy of a certificate from the Secretary or an
Assistant Secretary of the Company amending, canceling or replacing such
certificate.
"S&P" means Standard & Poor's Ratings Group, or any successor thereto.
"Subsidiary" means, with respect to any Person, any corporation or
unincorporated entity of which more than 50% of the outstanding capital stock
(or comparable interest) having ordinary voting power (irrespective of whether
at the time capital stock (or comparable interest) of any other class or classes
of such corporation or entity shall or might have voting power upon the
occurrence of any contingency) is at the time directly or indirectly owned by
said Person (whether directly or through one or more other Subsidiaries).
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Termination Date" means the earlier to occur of (i) March 28, 2010 and
(ii) the date of termination or reduction in whole of the Commitments pursuant
to Section 2.04 or 6.01.
"Termination Event" means (i) a Reportable Event described in Section 4043
of ERISA and the regulations issued thereunder (other than a Reportable Event
not subject to the provision for 30-day notice to the Pension Benefit Guaranty
Corporation under such regulations), or (ii) the withdrawal of the Company or
any of its Affiliates from a Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA, or (iii) the
filing of a notice of intent to terminate a Plan or the treatment of a Plan
amendment as a termination under Section 4041 of ERISA, or (iv) the institution
of proceedings to terminate a Plan by the Pension Benefit Guaranty Corporation,
or (v) any other event or condition which might constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan.
"Total Capitalization" means the sum of the value of the common stock,
retained earnings and preferred and preference stock of the Company (in each
case, determined in accordance with GAAP), plus Consolidated Indebtedness of the
Company.
SECTION 1.02. Interpretive Provisions, Computation of Time Periods.
(a) The definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The word
"will" shall be construed to have the same meaning and effect as the word
"shall." Unless the context requires otherwise, (i) any definition of or
reference to any agreement, instrument or other document (including any
organization document) shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (ii) any reference herein to any Person
shall be construed to include such Person's successors and assigns, (iii) the
words "herein," "hereof" and "hereunder," and words of similar import when used
in this Agreement, shall be construed to refer to this Agreement in its entirety
and not to any particular provision thereof, (iv) all references in this
Agreement to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement
in which such references appear, (v) any reference to any law shall include all
statutory and regulatory provisions consolidating, amending, replacing or
interpreting such law and any reference to any law or regulation shall, unless
otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time, and (vi) the words "asset" and "property" shall
be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
(b) In this Agreement in the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including;" the words "to" and "until" each mean "to but excluding;" and the
word "through" means "to and including."
SECTION 1.03. Accounting Terms.
(a) Generally. All accounting terms not specifically or completely defined
herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted
pursuant to this Agreement shall be prepared in conformity with, GAAP applied on
a consistent basis, as in effect from time to time.
(b) Changes in GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in this Agreement,
and either the Company or the Majority Lenders shall so request, the
Administrative Agent, the Lenders and the Company shall negotiate in good faith
to amend such ratio or requirement to preserve the original intent thereof in
light of such change in GAAP (subject to the approval of the Majority Lenders);
provided that, until so amended, (i) the Company shall not be required to revise
information previously delivered to the Administrative Agent or the Lenders to
reflect such change, (ii) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (iii) the
Company shall provide going forward to the Administrative Agent and the Lenders
financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between
calculations.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances.
Each Lender severally agrees, on the terms and conditions hereinafter set
forth, to make Advances to the Company from time to time on any Business Day
during the period from the date hereof to but excluding the Termination Date, in
an aggregate amount outstanding not to exceed at any time the amount set
opposite such Lender's name on Schedule II hereto or, if such Lender has entered
into any Assignment and Assumption, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 8.07(c), as such
amount may be reduced or increased pursuant to Section 2.04 (such Lender's
"Commitment"). Each Borrowing shall be in an aggregate amount not less than
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and shall
consist of Advances of the same Type made on the same day by the Lenders ratably
according to their respective Commitments. Until the Termination Date, within
the limits of each Lender's Commitment, the Company may from time to time
borrow, repay pursuant to Section 2.05 or prepay pursuant to Section 2.11(b) and
reborrow under this Section 2.01.
SECTION 2.02. Making the Advances.
(a) Each Borrowing shall be made on notice, given not later than 11:00 a.m.
(New York City time) on the day of such proposed Borrowing, in the case of a
Borrowing comprised of Base Rate Advances, or on the third Business Day prior to
the date of the proposed Borrowing, in the case of a Borrowing comprised of
Eurodollar Rate Advances, by the Company to the Administrative Agent, which
shall give to each Lender prompt notice thereof by telex, telecopier or cable.
Each such notice of a Borrowing (a "Notice of Borrowing") shall be by telex,
telecopier or cable, confirmed promptly in writing, in substantially the form of
Exhibit A-1 hereto, specifying therein the requested (i) date of such Borrowing,
which date shall be a Business Day, (ii) Type of Advances comprising such
Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case of a
Borrowing comprised of Eurodollar Rate Advances, the Interest Period for each
such Advance. In the case of a proposed Borrowing comprised of Eurodollar Rate
Advances, the Administrative Agent shall promptly notify each Lender of the
applicable interest rate under Section 2.07(b). Each Lender shall, before 1:00
p.m. (New York City time) on the date of such Borrowing, make available for the
account of its Applicable Lending Office to the Administrative Agent at its
address referred to in Section 8.02, in same day funds, such Lender's ratable
portion of such Borrowing. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the Company at
the Administrative Agent's aforesaid address.
(b) Each Notice of Borrowing shall be irrevocable and binding on the
Company and, in respect of any Borrowing comprised of Eurodollar Rate Advances,
the Company shall indemnify each Lender against any loss or expense incurred by
such Lender solely as a result of any failure by the Company to fulfill on or
before the date specified for such Borrowing the applicable conditions set forth
in Article III, including, without limitation, any loss (including loss of
anticipated profits) or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
(c) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing of Eurodollar Rate Advances
(or, in the case of any Borrowing of any Base Rate Advances, prior to 12:00 p.m.
(New York City time) on the date of such Advance) that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 (or, in the case of a
Borrowing of Base Rate Advances, that such Lender has made such portion
available in accordance with and at the time required by Section 2.02) and may,
in reliance upon such assumption, make available to the Company on such date a
corresponding amount. In such event, if a Lender has not in fact made its
portion of the applicable Borrowing available to the Administrative Agent, then
the applicable Lender and the Company severally agree to pay to the
Administrative Agent (without duplication) forthwith on demand such
corresponding amount in immediately available funds with interest thereon, for
each day from and including the date such amount is made available to the
Company to but excluding the date of payment to the Administrative Agent, at (x)
in the case of a payment to be made by such Lender, the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation and (y) in the case of a
payment to be made by the Company, the interest rate applicable at such time to
the Advances comprising such Borrowing. If the Company and such Lender shall pay
such interest to the Administrative Agent for the same or an overlapping period,
the Administrative Agent shall promptly remit to the Company the amount of such
interest paid by the Company for such period. If such Lender pays its share of
the applicable Borrowing to the Administrative Agent, then the amount so paid
shall constitute such Lender's Advance included in such Borrowing. Any payment
by the Company shall be without prejudice to any claim the Company may have
against a Lender that shall have failed to make such payment to the
Administrative Agent.
(d) The obligations of the Lenders hereunder to make Advances and to make
payments pursuant to Section 8.04(i) are several and not joint. The failure of
any Lender to make the Advance to be made by it as part of any Borrowing or to
make any payment under Section 8.04(i) shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
and no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing or to
make its payment under Section 8.04(i).
(e) If, for any reason, a Borrowing is not made on the date specified in
any Notice of Borrowing, the Administrative Agent hereby agrees to repay to each
Lender the amount, if any, which such Lender has made available to the
Administrative Agent as such Lender's ratable portion of such Borrowing, without
interest.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Advance in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Advance in any particular place or manner.
SECTION 2.03. Facility Fee.
The Company agrees to pay to the Administrative Agent for the account of
each Lender a facility fee on each Lender's Commitment, irrespective of usage,
from the date hereof, in the case of each Bank, and from the effective date
specified in the Assignment and Assumption pursuant to which it became a Lender,
in the case of each other Lender, until the Termination Date, payable quarterly
in arrears on the last day of each March, June, September and December during
the term of such Lender's Commitment and on the Termination Date, at a rate per
annum determined by reference to the ratings assigned to the Reference
Securities as set forth below:
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
Basis for Pricing XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 5 LEVEL 6
If the If the If the If the If the If the
Reference Reference Reference Reference Reference Reference
Securities are Securities are Securities Securities are Securities are Securities
rated at least rated lower are rated rated lower rated lower are rated
A by S&P or at than Xxxxx 0 xxxxx xxxx xxxx Xxxxx 0 xxxx Xxxxx 0 lower than
least A2 by but at least Level 2 but but at least but at least Level 5 or
Moody's A- by S&P or at least BBB+ BBB by S&P or BBB- by S&P or unrated
at least A3 by by S&P or at at least Baa2 at least Baa3
Moody's least Baa1 by by Moody's by Moody's
Moody's
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
Facility Fee 0.080% 0.100% 0.125% 0.150% 0.175% 0.250%
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
The Facility Fee rate will be redetermined on the date of any change in the
rating assigned by S&P or Moody's, as the case may be, to the Reference
Securities. If the ratings assigned to the Reference Securities by S&P and
Moody's are not comparable (i.e., a "split rating"), and (i) the ratings
differential is one category, the higher of such two ratings shall control, or
(ii) the ratings differential is two or more categories, the rating that is one
below the higher of the two ratings shall control.
SECTION 2.04. Changes in the Commitments.
Reduction or Termination of the Commitments. The Company shall have the
right, upon at least three Business Days' notice to the Administrative Agent,
irrevocably and permanently to terminate in whole or reduce ratably in part the
respective Commitments of the Lenders; provided that (i) any such notice shall
be received by the Administrative Agent no later than 11:00 a.m. (New York City
time) three Business Days prior to the date of termination or reduction and (ii)
the aggregate amount of the Commitments of the Lenders shall not be reduced to
an amount which is less than the aggregate principal amount of the Advances then
outstanding; and provided further, that each partial reduction shall be in the
aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof. The Administrative Agent will promptly notify the Lenders of any such
notice of termination or reduction of the Commitments. Any reduction of the
Commitments shall be applied to the Commitment of each Lender on a pro rata
basis. All fees accrued until the effective date of any termination of the
Commitments shall be paid on the effective date of such termination.
SECTION 2.05. Repayment of Advances.
The Company shall repay the principal amount of each Advance made by each
Lender on the Termination Date.
SECTION 2.06. Evidence of Indebtedness.
The Advances made by each Lender shall be evidenced by one or more accounts
or records maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest error
of the amount of the Advances made by the Lenders to the Company and the
interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Company
hereunder to pay any amount owing under this Agreement or any other document
entered into in connection therewith. In the event of any conflict between the
accounts and records maintained by any Lender and the accounts and records of
the Administrative Agent in respect of such matters, the accounts and records of
the Administrative Agent shall control in the absence of manifest error. Any
Lender may request that any Advances made by it be evidenced by one or more
promissory notes. In such event, the Company shall prepare, execute and deliver
to such Lender one or more notes payable to the order of such Lender (or if
requested by such Lender, to such Lender and its assignees) and in substantially
the form of Exhibit B hereto. Thereafter, the Advances evidenced by such notes
and interest thereon shall at all times (including after assignment pursuant to
Section 8.07) be represented by one or more notes in such form payable to the
order of the payee named therein.
SECTION 2.07. Interest on Advances.
The Company shall pay interest on the unpaid principal amount of each
Advance made by each Lender from the date of such Advance until such principal
amount shall be paid in full, at the following rates per annum:
(a) Base Rate Advances. If such Advance is a Base Rate Advance, a rate per
annum equal at all times to the Base Rate in effect from time to time, plus the
Applicable Margin for Base Rate Advances, payable quarterly in arrears on the
last day of each September, December, March, and June and on the date such Base
Rate Advance shall be paid in full.
(b) Eurodollar Rate Advances. If such Advance is a Eurodollar Rate Advance,
a rate per annum equal at all times during the Interest Period for such Advance
to the Eurodollar Rate for such Interest Period, plus the Applicable Margin for
Eurodollar Rate Advances, payable on the last day of such Interest Period and,
if such Interest Period has a duration of more than three months, on each day
which occurs during such Interest Period every three months from the first day
of such Interest Period.
SECTION 2.08. Additional Interest on Eurodollar Rate Advances.
The Company shall pay to each Lender additional interest on the unpaid
principal amount of each Eurodollar Rate Advance of such Lender, from the date
of such Advance until such principal amount is paid in full, at an interest rate
per annum equal at all times to the remainder obtained by subtracting (i) the
Eurodollar Rate for the Interest Period for such Advance from (ii) the rate
obtained by dividing such Eurodollar Rate by a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage of such Lender for such Interest Period,
payable on each date on which interest is payable on such Advance. All claims
for such additional interest shall be submitted by such Lender to the Company
(with a copy to the Administrative Agent) as soon as is reasonably possible and
in all events within ninety days after the first day of such Interest Period;
provided, however, that if a claim is not submitted to the Company within such
ninety day period, such Lender shall thereby waive its claim to such additional
interest incurred during such ninety-day period but not to any such additional
interest incurred thereafter. A certificate as to the amount of such additional
interest, submitted to the Company (with a copy to the Administrative Agent) by
such Lender, shall be conclusive and binding for all purposes, absent manifest
error.
SECTION 2.09. Interest Rate Determination.
(a) The Administrative Agent shall give prompt notice to the Company and
the Lenders of the applicable interest rate determined by the Administrative
Agent for purposes of Section 2.07(a) or (b).
(b) If, with respect to any Eurodollar Rate Advances, (i) the
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Company) that, by reason of circumstances
affecting the relevant interbank market, adequate means do not exist for
ascertaining the Eurodollar Rate for such Interest Period, or (ii) the Majority
Lenders notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Majority Lenders of making, funding or maintaining their respective Eurodollar
Rate Advances for such Interest Period, the Administrative Agent shall forthwith
so notify the Company and the Lenders, whereupon
(i) each Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate
Advance, and
(ii) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended until the Administrative
Agent shall notify the Company and the Lenders that the circumstances
causing such suspension no longer exist.
(c) If the Company shall fail to select the duration of any Interest Period
for any Eurodollar Rate Advances in accordance with the provisions contained in
the definition of "Interest Period" in Section 1.01, the Administrative Agent
will forthwith so notify the Company and the Lenders and such Advances will
automatically, on the last day of the then existing Interest Period therefor,
Convert into Base Rate Advances. If an Event of Default shall have occurred and
be continuing, each Eurodollar Rate Advance shall automatically Convert into a
Base Rate Advance at the end of the Interest Period then in effect for such
Eurodollar Rate Advance.
(d) On the date on which the aggregate unpaid principal amount of Advances
comprising any Borrowing shall be reduced, by prepayment or otherwise, to less
than $20,000,000, such Advances shall, if they are Eurodollar Rate Advances,
automatically Convert into Base Rate Advances, and on and after such date the
right of the Company to Convert such Advances into Eurodollar Advances shall
terminate; provided, however, that if and so long as each such Advance shall be
of the same Type and have the same Interest Period as Eurodollar Advances
comprising another Borrowing or other Borrowings, and the aggregate unpaid
principal amount of all Eurodollar Rate Advances shall equal or exceed
$20,000,000, the Company shall have the right to continue all such Eurodollar
Rate Advances as Advances having such Interest Period.
SECTION 2.10. Voluntary Conversion of Advances.
The Company may, on any Business Day prior to the Termination Date, upon
notice given to the Administrative Agent not later than 11:00 a.m. (New York
City time) on the third Business Day prior to the date of the proposed
Conversion, in the case of any proposed Conversion into Eurodollar Rate
Advances, and on the date of the proposed Conversion, which date shall be a
Business Day, in the case of any proposed Conversion into Base Rate Advances,
and subject to the provisions of Sections 2.09 and 2.13 and so long as no Event
of Default has occurred and is continuing on the date of such proposed
Conversion, Convert all Advances of one Type comprising the same Borrowing into
Advances of another Type; provided, however, that any Conversion of any
Eurodollar Rate Advances into Base Rate Advances shall be made on, and only on,
the last day of an Interest Period for such Eurodollar Rate Advances. Each such
notice of a Conversion (a "Notice of Conversion") shall be by telex, telecopier
or cable, confirmed promptly in writing, in substantially the form of Exhibit
A-2 hereto and shall, within the restrictions specified above, specify (i) the
date of such Conversion, (ii) the aggregate amount of, Type of, and Interest
Periods (if any) applicable to the Advances to be Converted, (iii) the Type of
Advance to which such Advances (or portions thereof) are proposed to be
Converted, and (iv) if such Conversion is into Eurodollar Rate Advances, the
duration of the Interest Period for each such Advance.
SECTION 2.11. Prepayments of Advances.
(a) The Company shall have no right to prepay any principal amount of any
Advances other than as provided in subsection (b) below.
(b) The Company may, upon notice given to the Administrative Agent at least
two Business Days prior to the proposed prepayment, in the case of any
Eurodollar Rate Advance, and on the date of the proposed prepayment, in the case
of any Base Rate Advance, and if such notice is given the Company shall, prepay
the outstanding principal amounts of the Advances comprising the same Borrowing
in whole or ratably in part, together with accrued interest to the date of such
prepayment on the amount prepaid and, in the case of any Eurodollar Rate
Advance, any amount payable pursuant to Section 8.04(b); provided, however, that
each partial prepayment shall be in an aggregate principal amount not less than
$5,000,000 and in integral multiples of $1,000,000 in excess thereof.
SECTION 2.12. Increased Costs.
(a) If, due to either (i) the introduction of or any change (other than any
change by way of imposition or increase of reserve requirements, in the case of
Eurodollar Rate Advances, included in the Eurodollar Rate Reserve Percentage),
in or in the interpretation of any law or regulation, or (ii) the compliance
with any guideline or request from any central bank or other governmental
authority (whether or not having the force of law), there shall be any increase
in the cost to any Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances, then the Company shall from time to time, upon demand
by such Lender (with a copy of such demand to the Administrative Agent), pay to
the Administrative Agent for account of such Lender additional amounts
sufficient to reimburse such Lender for such increased cost. All claims for
increased cost shall be submitted by such Lender to the Company (with a copy to
the Administrative Agent) as soon as is reasonably possible and the Company
shall, subject to subsection (c) of this Section 2.12, make such payment within
five Business Days after notice of such claim is received. A certificate as to
the amount of such increased cost, submitted to the Company (with a copy to the
Administrative Agent) by such Lender, shall be conclusive and binding for all
purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or regulation or
any guideline or request from any central bank or other governmental authority
(whether or not having the force of law) affects or would affect the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender and that the amount of such capital is increased by or
based upon the existence of such Lender's commitment to lend hereunder and other
commitments of this type, and the effect of the foregoing would be to reduce the
rate of return on such capital, then, upon demand by such Lender (with a copy of
such demand to the Administrative Agent), the Company shall immediately pay to
the Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender or such corporation in the light of such circumstances, to the extent
that such Lender reasonably determines such increase in capital to be allocable
to the existence of such Lender's commitment to lend hereunder. All claims for
such additional amounts shall be submitted by such Lender (with a copy to the
Administrative Agent) as soon as is reasonably possible and the Company shall,
subject to subsection (c) of this Section 2.12, make such payment within five
Business Days after notice of such claim is received. A certificate as to such
amounts submitted to the Company and the Administrative Agent by such Lender
shall be conclusive and binding for all purposes, absent manifest error.
(c) Failure or delay on the part of any Lender to demand compensation
pursuant to the foregoing provisions of this Section 2.12 shall not constitute a
waiver of such Lender's right to demand such compensation, provided that the
Company shall not be required to compensate a Lender pursuant to the foregoing
provisions of this Section 2.12 for any increased costs incurred or reductions
suffered more than six months prior to the date that such Lender notifies the
Company of the change in law giving rise to such increased costs or reductions
and of such Lender's intention to claim compensation therefor (except that, if
the change in law giving rise to such increased costs or reductions is
retroactive, then the six-month period referred to above shall be extended to
include the period of retroactive effect thereof).
SECTION 2.13. Illegality.
Notwithstanding any other provision of this Agreement, if any Lender shall
notify the Administrative Agent that the introduction of or any change in or in
the interpretation of any law or regulation makes it unlawful, or any central
bank or other governmental authority asserts that it is unlawful, for such
Lender or its Eurodollar Lending Office to perform its obligations hereunder to
make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances
(i) the obligation of the Lenders to make Eurodollar Rate Advances, or to
Convert Advances into Eurodollar Rate Advances, shall be suspended until the
Administrative Agent shall notify the Company and the Lenders that the
circumstances causing such suspension no longer exist and (ii) the Company shall
forthwith prepay in full all Eurodollar Rate Advances of all Lenders then
outstanding, together with interest accrued thereon, unless the Company, within
five Business Days of notice from the Administrative Agent, Converts all
Eurodollar Rate Advances of all Lenders then outstanding into Base Rate Advances
in accordance with Section 2.10.
SECTION 2.14. Payments and Computations.
(a) All payments to be made by the Company shall be made without condition
or deduction for any counterclaim, defense, recoupment or set-off. The Company
shall make each payment hereunder not later than 11:00 a.m. (New York City time)
on the day when due in U.S. dollars to the Administrative Agent at its address
referred to in Section 8.02 in same day funds. The Administrative Agent will
promptly thereafter cause to be distributed like funds relating to the payment
of principal or interest or fees (other than pursuant to Section 2.08 or 2.12)
ratably to the Lenders for the account of their respective Applicable Lending
Offices, and like funds relating to the payment of any other amount payable to
any Lender to such Lender for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Assumption and recording of the information
contained therein in the Register pursuant to Section 8.07(d), from and after
the effective date specified in such Assignment and Assumption, the
Administrative Agent shall make all payments hereunder in respect of the
interest assigned thereby to the Lender assignee thereunder, and the parties to
such Assignment and Assumption shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) All computations of interest based on clause (i) of the definition of
"Base Rate" or of fees payable hereunder shall be made by the Administrative
Agent on the basis of a year of 365 or 366 days, as the case may be, and all
computations of interest based on the Eurodollar Rate or on clause (ii) of the
definition of "Base Rate" shall be made by the Administrative Agent, and all
computations of interest pursuant to Section 2.08 shall be made by a Lender, on
the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period of
which such interest or fees are payable. Each determination by the
Administrative Agent (or, in the case of Section 2.08, by a Lender) of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(c) All payments received by the Administrative Agent after 2:00 p.m. (New
York City time) shall be deemed received on the next succeeding Business Day and
any applicable interest or fee shall continue to accrue. Whenever any payment
hereunder shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of payment of interest or
fees, as the case may be; provided, however, that if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances to be made in
the next following calendar month, such payment shall be made on the next
preceding Business Day.
(d) Unless the Administrative Agent shall have received notice from the
Company prior to the date on which any payment is due to the Lenders hereunder
that the Company will not make such payment in full, the Administrative Agent
may assume that the Company has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each Lender on such due date an amount
equal to the amount then due such Lender. If and to the extent the Company shall
not have so made such payment in full to the Administrative Agent, each Lender
shall repay to the Administrative Agent forthwith on demand such amount
distributed to such Lender, together with interest thereon for each day from the
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Administrative Agent at the Federal Funds Rate.
SECTION 2.15. Sharing of Payments, Etc.
If any Lender shall obtain any payment (whether voluntary, involuntary,
through the exercise of any right of set-off, or otherwise) on account of the
Advances made by it (other than pursuant to Section 2.08 or 2.12) in excess of
its ratable share of payments on account of the Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such
participation in the Advances made by them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them;
provided, however, that (A) if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery, together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered and (B) the
provisions of this Section 2.15 shall not be construed to apply to (i) any
payment made by the Company pursuant to and in accordance with the express terms
of this Agreement or (ii) any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Advances to any
assignee or participant, other than to the Company or any Subsidiary thereof (as
to which the provisions of this Section 2.15 shall apply). The Company consents
to the foregoing and agrees that any Lender so purchasing a participation from
another Lender pursuant to this Section 2.15 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were the
direct creditor of the Company in the amount of such participation.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Closing.
The Commitments of the Lenders shall not become effective unless and until
each of the following conditions precedent has been satisfied by the Company:
(a) the Administrative Agent shall have received the following, each in
form and substance satisfactory to the Administrative Agent and each of the
Lenders:
(i) Promissory notes, if requested by any Lender pursuant to Section
2.06.
(ii) Certified copies of the resolutions of the Board of Directors of
the Company approving this Agreement, and of all documents evidencing other
necessary corporate action and governmental approvals, including the FPSC
Order, with respect to this Agreement.
(iii) A certificate of the Secretary or an Assistant Secretary of the
Company, dated as of the date hereof, certifying the names and true
signatures of the officers of the Company authorized to sign this Agreement
and the other documents to be delivered hereunder.
(iv) A certificate of a Responsible Officer of the Company, dated as
of the date hereof, certifying (i) the accuracy of the representations and
warranties contained herein and (ii) that no event has occurred and is
continuing which constitutes a Default or an Event of Default.
(v) Certified copies of all required governmental approvals and
authorizations.
(vi) Certified copy of the restated charter and bylaws of the Company.
(vii) Evidence satisfactory to the Administrative Agent that the
Existing Facilities shall have been terminated and all amounts outstanding
thereunder shall have been paid in full.
(viii) Favorable opinions of counsel for the Company, substantially in
the forms of Exhibit D-1 and Exhibit D-2 hereto and as to such other
matters as any Lender through the Administrative Agent may reasonably
request.
(ix) A favorable opinion of King & Spalding LLP, counsel for the
Administrative Agent, substantially in the form of Exhibit E hereto.
(b) Any fees required to be paid on or before the Closing Date shall have
been paid by the Company.
(c) Unless waived by the Administrative Agent, the Company shall have paid
all fees, charges and disbursements of counsel to the Administrative Agent in
connection with the preparation and negotiation of this Agreement and the other
documents to be delivered in connection herewith to the extent invoiced prior to
or on the Closing Date, plus such additional amounts of such fees, charges and
disbursements as shall constitute its reasonable estimate of such fees, charges
and disbursements incurred or to be incurred by it through the closing
proceedings (provided that such estimate shall not thereafter preclude a final
settling of accounts between the Company and the Administrative Agent).
Without limiting the generality of the provisions of Section 7.04, for
purposes of determining compliance with the conditions specified in this Section
3.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
SECTION 3.02. Conditions Precedent to Each Borrowing.
The obligation of each Lender to make an Advance on the occasion of each
Borrowing (including the initial Borrowing) shall be subject to the further
conditions precedent that (i) in the case of the making of an Advance, the
Administrative Agent shall have received the written confirmatory Notice of
Borrowing with respect thereto, and (ii) on the date of such Borrowing, the
following statements shall be true (and each of the giving of the applicable
Notice of Borrowing and the acceptance by the Company of the proceeds of such
Borrowing shall constitute a representation and warranty by the Company that, on
the date of such Borrowing, such statements are true):
(a) The representations and warranties contained in Section 4.01 (excluding
the representation and warranty contained in the last sentence of Section
4.01(e)) are correct on and as of the date of such Borrowing, or, if any such
representation or warranty is expressly stated to have been made as of a
specific date as of such specific date, before and after giving effect to such
Borrowing and to the application of the proceeds therefrom, as though made on
and as of such date; and
(b) No event has occurred and is continuing, or would result from such
Borrowing or from the application of the proceeds therefrom, that constitutes a
Default or an Event of Default.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Company.
The Company represents and warrants as follows:
(a) The Company is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Florida.
(b) The execution, delivery and performance by the Company of this
Agreement are within the Company's corporate powers, have been duly authorized
by all necessary corporate action, and do not contravene (i) the Company's
charter or bylaws or (ii) any law or contractual restriction binding on or
affecting the Company.
(c) No authorization or approval or other action by, and no notice to or
filing with any governmental authority or regulatory body is required for the
due execution, delivery and performance by the Company of this Agreement, other
than the FPSC Order, which has been duly issued, is final and in full force and
effect.
(d) This Agreement is the legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms.
(e) The Consolidated balance sheet of the Company and its Subsidiaries as
at December 31, 2004, and the related Consolidated statements of income and
retained earnings of the Company and its Subsidiaries for the fiscal year then
ended, copies of which have been furnished to each Lender, fairly present the
financial condition of the Company and its Subsidiaries as at such date and the
results of the operations of the Company and its Subsidiaries for the period
ended on such date, all in accordance with GAAP consistently applied. Since
December 31, 2004, there has been no material adverse change in the financial
condition, operations or properties of the Company and its Subsidiaries, taken
as a whole.
(f) Except as described in the reports and registration statements which
the Company has filed with the Securities and Exchange Commission prior to the
date of this Agreement, there is no pending or threatened action or proceeding
affecting the Company or any Subsidiary of the Company before any court,
governmental agency or arbitrator, which may materially adversely affect the
financial condition, operations or properties of the Company.
(g) No proceeds of any Advance will be used to acquire any security in any
transaction which is subject to Sections 12, 13 and 14 of the Securities
Exchange Act of 1934.
(h) The Company is not engaged in the business of extending credit for the
purpose of buying or carrying margin stock (within the meaning of Regulation U
issued by the Board of Governors of the Federal Reserve System), and no proceeds
of any Advance will be used to buy or carry any margin stock or to extend credit
to others for the purpose of buying or carrying any margin stock.
(i) Following application of the proceeds of each Advance, not more than 5
percent of the value of the assets (either of the Company only or of the Company
and its Subsidiaries on a Consolidated basis) subject to the provisions of
Section 5.02(a) or 5.02(e) will be margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System).
(j) No Termination Event has occurred or is reasonably expected to occur
with respect to any Plan.
(k) The Company is not an "investment company" or a company "controlled" by
an "investment company", within the meaning of the Investment Company Act of
1940, as amended.
(l) The Company is in substantial compliance with all applicable laws,
rules, regulations and orders of any governmental authority, the noncompliance
with which would materially and adversely affect the business or condition of
the Company, such compliance to include, without limitation, substantial
compliance with ERISA and Environmental Laws and paying before the same become
delinquent all material taxes, assessments and governmental charges imposed upon
it or upon its property, except to the extent compliance with any of the
foregoing is then being contested in good faith by appropriate legal proceedings
and for which adequate reserves are made in accordance with GAAP.
(m) All written information furnished by the Company to the Administrative
Agent and the Lenders in connection with this Agreement (the "Disclosed
Information") was (and all information furnished in the future by the Company to
the Administrative Agent and the Lenders will be) complete and correct in all
respects material to the creditworthiness of the Company when delivered. As of
the date hereof, the Disclosed Information does not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements contained therein not misleading in light of the circumstances under
which made.
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.01. Affirmative Covenants.
So long as any Advances shall remain unpaid or any Lender shall have any
Commitment hereunder, the Company shall, unless the Majority Lenders shall
otherwise consent in writing:
(a) Compliance with Laws, Etc. Except to the extent contested in good
faith, comply, and cause each Subsidiary of the Company to comply, with all
applicable laws (including ERISA and applicable Environmental Laws), rules,
regulations and orders (such compliance to include, without limitation, paying
before the same become delinquent all taxes, assessments and governmental
charges imposed upon it or upon its property), the non-compliance with which
would materially adversely affect the Company's business or credit.
(b) Preservation of Corporate Existence, Etc. Preserve and maintain its
corporate existence, rights (charter and statutory) and franchises.
(c) Visitation Rights. At any reasonable time and from time to time, permit
the Administrative Agent or any of the Lenders or any agents or representatives
thereof to examine and make copies of and abstracts from the records and books
of account of, and visit the properties of, the Company and any of its
Subsidiaries, and to discuss the affairs, finances and accounts of the Company
and any of its Subsidiaries with any of their respective officers or directors.
(d) Keeping of Books. Keep, and cause each Subsidiary of the Company to
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of the
Company and such Subsidiary in accordance with GAAP.
(e) Maintenance of Properties, Etc. Maintain and preserve, and cause each
Subsidiary of the Company to maintain and preserve, all of its properties which
are used or useful in the conduct of its business in good working order and
condition, ordinary wear and tear excepted.
(f) Maintenance of Insurance. Maintain, and cause each Subsidiary of the
Company to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties
in the same general areas in which the Company or such Subsidiary operates.
(g) Taxes. File, and cause each Subsidiary of the Company to file, all tax
returns (federal, state and local) required to be filed and paid and pay all
taxes shown thereon to be due, including interest and penalties, or provide
adequate reserves for payment thereof other than such taxes that the Company or
such Subsidiary is contesting in good faith by appropriate legal proceedings and
for which adequate reserves are made in accordance with GAAP.
(h) Material Obligations. Pay, and cause each Subsidiary of the Company to
pay, promptly as the same shall become due each material obligation of the
Company or such Subsidiary.
(i) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 60 days after the end
of each of the first three quarters of each fiscal year of the Company, a
Consolidated balance sheet of the Company and its Subsidiaries as at the
end of such quarter and Consolidated statements of income and retained
earnings of the Company and its Subsidiaries for the period commencing at
the end of the previous fiscal year and ending with the end of such
quarter, certified by the treasurer or the chief financial officer of the
Company, together with a certificate of the treasurer or chief financial
officer of the Company, setting forth in reasonable detail the calculations
of the Company's compliance with Section 5.01(j) and stating that no
Default or Event of Default has occurred and is continuing, or if a Default
or an Event of Default has occurred and is continuing, a statement setting
forth details of such Event of Default or event and the action that the
Company has taken and proposes to take with respect thereto;
(ii) as soon as available and in any event within 90 days after the
end of each fiscal year of the Company, a copy of the annual report for
such year for the Company and its Subsidiaries, containing Consolidated
financial statements for such year audited and certified by Deloitte &
Touche or other independent public accountants acceptable to the Majority
Lenders, together with a certificate of the treasurer or chief financial
officer of the Company, setting forth in reasonable detail the calculations
of the Company's compliance with Section 5.01(j) and stating that no
Default or Event of Default has occurred and is continuing, or if a Default
or an Event of Default, a statement setting forth details of such Default
or Event of Default or event and the action that the Company has taken and
proposes to take with respect thereto;
(iii) promptly after the sending or filing thereof, copies of all
reports which the Company sends to any of its security holders, and copies
of all reports and registration statements which the Company or any
Subsidiary of the Company files with the Securities and Exchange Commission
or any national securities exchange to the extent not delivered by the
Company pursuant to clause (i) or (ii) of this Section 5.01(i);
(iv) immediately upon any Responsible Officer's obtaining knowledge of
the occurrence of any Default or Event of Default, a statement of the chief
financial officer or treasurer of the Company setting forth details of such
Default or Event of Default or event and the action which the Company
proposes to take with respect thereto;
(v) immediately upon any Responsible Officer's obtaining knowledge
thereof, notice of any change in any rating assigned by S&P or Moody's to
the Reference Securities;
(vi) as soon as possible and in any event within five days after the
commencement thereof or any adverse determination or development therein,
notice of all actions, suits and proceedings that may adversely affect the
Company's ability to perform its obligations under this Agreement;
(vii) as soon as possible and in any event within five days after the
occurrence of a Termination Event, notice of such Termination Event; and
(viii) such other information respecting the condition or operations,
financial or otherwise, of the Company or any Subsidiary of the Company as
any Lender through the Administrative Agent may from time to time
reasonably request.
(j) Indebtedness to Total Capitalization. Maintain at all times a ratio of
Consolidated Indebtedness of the Company and its Subsidiaries to Total
Capitalization of not more than 0.65:1.0.
(k) Use of Proceeds. Use the proceeds of each Advance solely for general
corporate purposes (including, without limitation, as a commercial paper
back-up). No proceeds of any Advance will be used to acquire any equity security
of a class that is registered pursuant to Section 12 of the Exchange Act or any
security in any transaction that is subject to Sections 13 or 14 of the Exchange
Act.
SECTION 5.02. Negative Covenants.
So long as any Advances shall remain unpaid or any Lender shall have any
Commitment hereunder, the Company will not, without the written consent of the
Majority Lenders:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit any
Subsidiary of the Company to create, incur, assume or suffer to exist, any lien,
security interest or other charge or encumbrance, or any other type of
preferential arrangement, upon or with respect to any of its properties, whether
now owned or hereafter acquired, or assign, or permit any Subsidiary of the
Company to assign, any right to receive income, in each case to secure any
Indebtedness of any Person, other than (i) liens, mortgages and security
interests created by the Mortgage, (ii) liens and security interests affecting
the fuel used by the Company in its power generating operations and (iii) liens,
mortgages and security interests securing other Indebtedness not exceeding
$100,000,000; provided, however, that, in the event that and for so long as the
First Mortgage Bonds are rated lower than BBB- or Baa3 by S&P or Moody's,
respectively, or, in the event that neither of such credit rating agencies is in
the business of rating the First Mortgage Bonds, lower than an equivalent rating
of the First Mortgage Bonds by another nationally-recognized credit rating
agency of similar standing, the Company's right to continue to create, incur and
suffer to exist liens, mortgages and security interests securing other
Indebtedness pursuant to the foregoing clause (iii) shall be suspended.
(b) Indebtedness. Create, incur, assume or suffer to exist, or permit any
Subsidiary of the Company to create, incur, assume or suffer to exist, any
Indebtedness other than (i) Indebtedness hereunder, (ii) Indebtedness secured by
liens and security interests permitted pursuant to clauses (ii) and (iii) of
Section 5.02(a), (iii) Indebtedness evidenced by the First Mortgage Bonds and
(iv) unsecured Indebtedness, including guarantees issued in connection with the
financing of pollution control facilities operated by the Company, guarantees of
Indebtedness incurred by any wholly-owned Subsidiary of the Company and
guarantees of debt securities issued by any financing Subsidiary of the Company
established to secure debt financing in the offshore markets.
(c) Lease Obligations. Create, incur, assume or suffer to exist, or permit
any Subsidiary of the Company to create, incur, assume or suffer to exist, any
obligations for the payment of rental for any property under leases or
agreements to lease having a term of one year or more which would cause the
direct or contingent Consolidated liabilities of the Company and its
Subsidiaries in respect of all such obligations payable in any calendar year to
exceed 10% of the Consolidated operating revenues of the Company and its
Subsidiaries for the immediately preceding calendar year.
(d) Mergers, Etc. Merge with or into or consolidate with or into, or
acquire all or substantially all of the assets or securities of, any Person,
unless, in each case, (i) immediately after giving effect thereto, no event
shall occur and be continuing which constitutes a Default or an Event of
Default, and (ii) in the case of any such merger to which the Company is a
party, such other Person is a utility company and the resulting or surviving
corporation, if not the Company, (x) is organized and existing under the laws of
the United States of America or any State thereof, (y) is a corporation
satisfactory to the Majority Lenders, and (z) shall have expressly assumed, by
an instrument satisfactory in form and substance to the Majority Lenders, the
due and punctual payment of all amounts due under this Agreement and the
performance of every covenant and undertaking of the Company contained in this
Agreement.
(e) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of,
or permit any Subsidiary of the Company to sell, lease, transfer or otherwise
dispose of, any of its assets, other than the following sales: (i) sales of
generating capacity to the Company's wholesale customers, (ii) sales of nuclear
fuel, (iii) sales of accounts receivable, (iv) sales in connection with a
transaction authorized by subsection (d) of this Section, (v) sales of
investments in securities with a maturity of less than one year, or (vi) other
sales not exceeding $250,000,000 in the aggregate in any fiscal year of the
Company.
(f) Line of Business. Engage in any business other than businesses of the
type conducted by the Company and its Subsidiaries on the date hereof and
businesses reasonably related thereto.
(g) Margin Stock. Use any proceeds of any Advance to buy or carry margin
stock (within the meaning of Regulation U issued by the Board of Governors of
the Federal Reserve System).
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default.
If any of the following events ("Events of Default") shall occur and be
continuing:
(a) The Company shall fail to pay any principal of any Advance when due, or
shall fail to pay any interest on any Advance or any fees or other amounts
payable hereunder within five Business Days after such interest or fees or other
amounts shall become due; or
(b) Any representation or warranty made by the Company herein or by the
Company (or any of its officers) in connection with this Agreement shall prove
to have been incorrect in any material respect when made; or
(c) The Company shall fail to perform or observe any other term, covenant
or agreement contained in Sections 5.01(b), 5.01(i)(iv), 5.01(j) or 5.02 on its
part to be performed or observed; or the Company shall fail to perform or
observe any other term, covenant or agreement contained in this Agreement on its
part to be performed or observed and any such failure shall remain unremedied
for 30 days after written notice thereof shall have been given to the Company by
the Administrative Agent or any Lender; or
(d) The Company or any of its Subsidiaries shall fail to pay any amount in
respect of any Indebtedness in excess of $35,000,000 (but excluding Indebtedness
hereunder) of the Company or such Subsidiary (as the case may be), or any
interest or premium thereon, when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Indebtedness; or any other default under any
agreement or instrument relating to any such Indebtedness, or any other event,
shall occur and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such default or
event is to accelerate, or to permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and payable,
or required to be prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof; or
(e) The Company or any of its Subsidiaries shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the Company or
any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee, or other
similar official for it or for any substantial part of its property; or the
Company or any of its Subsidiaries shall take any action indicating its approval
of, consent to or acquiescence in any of the actions set forth above in this
subsection (e); or
(f) Any judgment or order for the payment of money in excess of $35,000,000
shall be rendered against the Company or any of its Subsidiaries and either (i)
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 30 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(g) Any Termination Event with respect to a Plan shall have occurred, and,
30 days after notice thereof shall have been given to the Company by the
Administrative Agent, (i) such Termination Event (if correctable) shall not have
been corrected and (ii) the then present value of such Plan's vested benefits
exceeds the then current value of assets accumulated in such Plan by more than
the amount of $20,000,000 (or in the case of a Termination Event involving the
withdrawal of a "substantial employer" (as defined in Section 4001(a)(2) of
ERISA), the withdrawing employer's proportionate share of such excess shall
exceed such amount); or
(h) The Company or any of its Affiliates as employer under a Multiemployer
Plan shall have made a complete or partial withdrawal from such Multiemployer
Plan and the plan sponsor of such Multiemployer Plan shall have notified such
withdrawing employer that such employer has incurred a withdrawal liability in
an annual amount exceeding $20,000,000; or
(i) A Change of Control shall occur;
then, and in any such event, the Administrative Agent shall at the request, or
may with the consent, of the Majority Lenders, by notice to the Company, (i)
declare the Commitments and the obligation of each Lender to make Advances to be
terminated, whereupon the same shall forthwith terminate, and (ii) declare the
Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Company; provided, however, that in the event
of an actual or deemed entry of an order for relief with respect to the Company
or any of its Subsidiaries under the Federal Bankruptcy Code, (A) the obligation
of each Lender to make Advances shall automatically be terminated and (B) the
Advances, all such interest and all such amounts shall automatically become and
be due and payable, without presentment, demand, protest or any notice of any
kind, all of which are hereby expressly waived by the Company.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Appointment and Authority.
Each of the Lenders hereby irrevocably appoints Bank of America to act on
its behalf as the Administrative Agent hereunder and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article VII are solely for the benefit of the
Administrative Agent and the Lenders, and the Company shall not have rights as a
third party beneficiary of any of such provisions.
SECTION 7.02. Rights as a Lender.
The Person serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated or unless the
context otherwise requires, include the Person serving as the Administrative
Agent hereunder in its individual capacity. Such Person and its Affiliates may
accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with
the Company or any Subsidiary or other Affiliate thereof as if such Person were
not the Administrative Agent hereunder and without any duty to account therefor
to the Lenders.
SECTION 7.03. Exculpatory Provisions.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly
contemplated hereby that the Administrative Agent is required to exercise as
directed in writing by the Majority Lenders (or such other number or percentage
of the Lenders as shall be expressly provided for herein), provided that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to this Agreement or applicable law; and
(c) shall not, except as expressly set forth herein, have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Company or any of its Affiliates that is communicated to or
obtained by the Person serving as the Administrative Agent or any of its
Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not
taken by it (i) with the consent or at the request of the Majority Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 8.01 and 6.02(i)) or (ii) in the absence
of its own gross negligence or willful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default or Event of Default unless
and until notice describing such Default or Event of Default is given to the
Administrative Agent by the Company or a Lender.
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein
or the occurrence of any Default or Event of Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document or (v) the satisfaction of any condition set
forth in Article IV or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.
SECTION 7.04. Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by
it to be genuine and to have been signed, sent or otherwise authenticated by the
proper Person. The Administrative Agent also may rely upon any statement made to
it orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of an Advance that by its
terms must be fulfilled to the satisfaction of a Lender, the Administrative
Agent may presume that such condition is satisfactory to such Lender unless the
Administrative Agent shall have received notice to the contrary from such Lender
prior to the making of such Advance. The Administrative Agent may consult with
legal counsel (who may be counsel for the Company), independent accountants and
other experts selected by it, and shall not be liable for any action taken or
not taken by it in accordance with the advice of any such counsel, accountants
or experts.
SECTION 7.05. Delegation of Duties.
The Administrative Agent may perform any and all of its duties and exercise
its rights and powers hereunder by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all of its duties and exercise its rights and
powers by or through their respective Related Parties. The exculpatory
provisions of this Article VII shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-agent, and shall
apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as Administrative
Agent.
SECTION 7.06. Resignation of Administrative Agent.
The Administrative Agent may at any time give notice of its resignation to
the Lenders and the Company. Upon receipt of any such notice of resignation, the
Majority Lenders shall have the right, in consultation with the Company, to
appoint a successor, which shall be a bank with an office in the United States,
or an Affiliate of any such bank with an office in the United States. If no such
successor shall have been so appointed by the Majority Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative Agent shall
notify the Company and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender directly, until
such time as the Majority Lenders appoint a successor Administrative Agent as
provided for above in this Section 7.06. Upon the acceptance of a successor's
appointment as Administrative Agent hereunder, such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative
Agent shall be discharged from all of its duties and obligations hereunder (if
not already discharged therefrom as provided above in this Section 7.06). The
fees payable by the Company to a successor Administrative Agent shall be the
same as those payable to its predecessor unless otherwise agreed between the
Company and such successor. After the retiring Administrative Agent's
resignation hereunder, the provisions of this Article VII and Section 8.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.
SECTION 7.07. Non-Reliance on Administrative Agent and Other Lenders.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related
Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement or any related agreement or
any document furnished hereunder or thereunder.
SECTION 7.08. No Other Duties, Etc.
Anything herein to the contrary notwithstanding, none of the Arrangers or
the Syndication Agent listed on the cover page hereof shall have any powers,
duties or responsibilities under this Agreement, except in its capacity, as
applicable, as a Lender hereunder.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc.
No amendment or waiver of any provision of this Agreement, nor consent to
any departure by the Company therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Majority Lenders and the Company
and acknowledged by the Administrative Agent, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all of the Lenders, do any of the following: (a)
waive any of the conditions specified in Section 3.01 or 3.02, (b) change the
Commitment of any Lender or subject any Lender to any additional obligations
(other than pursuant to Section 2.04), (c) reduce the principal of, or interest
on, the Advances or any fees or other amount payable hereunder, (d) postpone any
date fixed by this Agreement for any payment of principal, interest, fees or
other amounts due to the Lenders (or any of them) or any fees hereunder, (e)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the Advances, or the number of Lenders, which shall be required for
the Lenders or any of them to take any action under this Agreement, (f) change
Section 2.15 in a manner that would alter the pro rata sharing of payments
required thereby without the written consent of each Lender, and (i) amend,
waive, or in any way modify or suspend any provision of this Section 8.01; and
provided, further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders
required hereinabove to take such action, affect the rights or duties of the
Administrative Agent under this Agreement and (ii) Section 8.07(i) may not be
amended, waived or otherwise modified without the consent of each Granting
Lender all or any part of whose Advances are being funded by an SPC at the time
of such amendment, waiver or other modification.
SECTION 8.02. Notices, Etc.
(a) Notices Generally. All notices and other communications provided for
hereunder shall, unless otherwise stated herein, be in writing (including
telegraphic communication) and mailed, telecopied, delivered or, in the case of
the Company, e-mailed,
(i) if to the Company, at its address at 410 S. Wilmington Street, PEB
19A3, Xxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Director of Financial
Operations, Treasury Department, Facsimile No.: (000) 000-0000, e-mail:
xxxxxxx.xxxxxx@xxxxxxx.xxx, website: xxx.xxxxxxxx-xxxxxx.xxx;
(ii) if to any Lender, at its Domestic Lending Office set forth
opposite its name on Schedule II hereto;
(iii) if to the Administrative Agent, at the addresses set forth
below:
(A) for Payment and Requests for Credit Extensions:
Bank of America, N.A.
000 Xxxx Xxxxxx, 00xx Xx.
Mail Code: TX1-492-14-12
Xxxxxx, XX 00000-0000
Attention: Xxxxxxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Electronic Mail: Xxxxxxxxxx.xxxxxxxxx@xxxxxxxxxxxxx.xxx
Account No.: 1292000883
Ref.: Progress Energy Florida, Inc.
ABA#: 000000000
(B) for Other Notices as Administrative Agent:
Bank of America, N.A.
Agency Management
000 Xxxxx Xxxxx Xx., 00xx Xx.
Mail Code: NC1-007-14-24
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Electronic Mail: xxx.xxxxxxxx@xxxxxxxxxxxxx.xxx
; or
(iv) as to each party, at such other address as shall be
designated by such party in a written notice to the other parties in
accordance with subsection (d) of this Section 8.02.
Notices sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when received; notices
sent by telecopier shall be deemed to have been given when sent (except that, if
not given during normal business hours for the recipient, shall be deemed to
have been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications.
(i) Notices and other communications to the Lenders hereunder may
be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures
approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to any Lender pursuant to Article II if
such Lender has notified the Administrative Agent that it is incapable
of receiving notices under such Article by electronic communication.
The Administrative Agent or the Company may, in its discretion, agree
to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular
notices or communications.
(ii) Unless the Administrative Agent otherwise prescribes, (i)
notices and other communications sent to an e-mail address shall be
deemed received upon the sender's receipt of an acknowledgement from
the intended recipient (such as by the "return receipt requested"
function, as available, return e-mail or other written
acknowledgement), provided that if such notice or other communication
is not sent during the normal business hours of the recipient, such
notice or communication shall be deemed to have been sent at the
opening of business on the next business day for the recipient, and
(ii) notices or communications posted to an Internet or intranet
website shall be deemed received upon the deemed receipt by the
intended recipient at its e-mail address as described in the foregoing
clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(iii) Documents required to be delivered pursuant to Section
5.01(i), (ii), (iii) or (viii) (to the extent any such documents are
included in materials otherwise filed with the SEC) may be delivered
electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Company posts such documents,
or provides a link thereto on the Company's website on the Internet at
the website address set forth in Section 8.02; or (ii) on which such
documents are posted on the Company's behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative
Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); provided that: (i) the
Company shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Company to
deliver such paper copies until a written request to cease delivering
paper copies is given by the Administrative Agent or such Lender and
(ii) the Company shall notify the Administrative Agent and each Lender
(by telecopier or electronic mail) of the posting of any such
documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. The
Administrative Agent shall have no obligation to request the delivery
or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the
Company with any such request for delivery, and each Lender shall be
solely responsible for requesting delivery to it or maintaining its
copies of such documents.
(c) The Platform. The Company hereby acknowledges that (i) the
Administrative Agent and/or the Arrangers will make available to the Lenders
materials and/or information provided by or on behalf of the Company hereunder
(collectively, "Company Materials") by posting the Company Materials on
IntraLinks or another similar electronic system (the "Platform") and (ii)
certain of the Lenders may be "public-side" Lenders (i.e., Lenders that do not
wish to receive material non-public information with respect to the Company or
its securities) (each, a "Public Lender"). The Company hereby agrees that so
long as the Company is the issuer of any outstanding debt or equity securities
that are registered or issued pursuant to a private offering or is actively
contemplating issuing any such securities (A) all Company Materials that are to
be made available to Public Lenders shall be clearly and conspicuously marked
"PUBLIC" which, at a minimum, shall mean that the word "PUBLIC" shall appear
prominently on the first page thereof; (B) by marking Company Materials
"PUBLIC", the Company shall be deemed to have authorized the Administrative
Agent, the Arrangers and the Lenders to treat such Company Materials as not
containing any material non-public information with respect to the Company or
its securities for purposes of United States Federal and state securities laws
(provided, however, that to the extent such Company Materials constitute
Information, they shall be treated as set forth in Section 8.15); (C) all
Company Materials marked "PUBLIC" are permitted to be made available through a
portion of the Platform designated "Public Investor"; and (D) the Administrative
Agent and the Arrangers shall be entitled to treat any Company Materials that
are not marked "PUBLIC" as being suitable only for posting on a portion of the
Platform not designated "Public Investor." Notwithstanding the foregoing, the
Company shall be under no obligation to xxxx any Company Materials "PUBLIC".
THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." THE ADMINISTRATIVE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF
THE COMPANY MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE COMPANY MATERIALS. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT
PARTY IN CONNECTION WITH THE COMPANY MATERIALS OR THE PLATFORM. In no event
shall the Administrative Agent or any of its Related Parties (collectively, the
"Agent Parties") have any liability to the Company, any Lender or any other
Person for losses, claims, damages, liabilities or expenses of any kind (whether
in tort, contract or otherwise) arising out of the Company's or the
Administrative Agent's transmission of Company Materials through the Internet,
except to the extent that such losses, claims, damages, liabilities or expenses
are determined by a court of competent jurisdiction by a final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Agent Party; provided, however, that in no event shall any Agent Party have
any liability to the Company, any Lender or any other Person for indirect,
special, incidental, consequential or punitive damages (as opposed to direct or
actual damages).
(d) Change of Address, Etc. Each of the Company and the Administrative
Agent may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the other parties hereto. Each other
Lender may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the Company and the Administrative
Agent. In addition, each Lender agrees to notify the Administrative Agent from
time to time to ensure that the Administrative Agent has on record (i) an
effective address, contact name, telephone number, telecopier number and
electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender.
(e) Reliance by Administrative Agent and Lenders. The Administrative Agent
and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Notices of Borrowings) purportedly given by or on behalf of the
Company even if (i) such notices were not made in a manner specified herein,
were incomplete or were not preceded or followed by any other form of notice
specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. The Company shall indemnify the
Administrative Agent, each Lender and the Related Parties of each of them from
all losses, costs, expenses and liabilities resulting from the reliance by such
Person on each notice purportedly given by or on behalf of the Company, except
to the extent of such Person's gross negligence or willful misconduct. All
telephonic notices to and other telephonic communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.
SECTION 8.03. No Waiver; Remedies.
No failure on the part of any Lender or the Administrative Agent to
exercise, and no delay in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
SECTION 8.04. Costs, Expenses and Taxes.
(a) The Company agrees to pay on demand all costs and expenses of (i) the
Administrative Agent and its Affiliates in connection with the syndication of
the credit facility provided for herein, the preparation, negotiation,
execution, delivery and administration of this Agreement and the other documents
to be delivered hereunder, the first Borrowing under this Agreement and any
modification, amendment or waiver of any provisions of, or supplement to, this
Agreement and the other documents to be delivered hereunder (whether or not the
transaction contemplated hereby or thereby shall be consummated) and (ii) the
Lenders and the Administrative Agent in connection with the enforcement or
protection of the rights and remedies of the Lenders and the Administrative
Agent under this Agreement and the other documents to be delivered hereunder
(whether through negotiations or legal proceedings), including its rights under
this Section 8.04 or in connection with the Advances made hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or
negotiation in respect of such Advances, all the above costs and expenses to
include, without limitation, the reasonable fees and out-of-pocket expenses of
counsel for the Administrative Agent and each of the Lenders with respect
thereto. In addition, the Company shall pay any and all stamp and other taxes
payable or determined to be payable in connection with the execution and
delivery of this Agreement and the other documents to be delivered hereunder,
and agrees to save the Administrative Agent and each Lender harmless from and
against any and all liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes.
(b) If, due to payments made by the Company due to acceleration of the
maturity of the Advances pursuant to Section 6.01, or due to any other reason,
any Lender receives payments of principal of any Eurodollar Rate Advance based
upon the Eurodollar Rate other than on the last day of the Interest Period for
such Advance, the Company shall, upon demand by such Lender (with a copy of such
demand to the Administrative Agent), pay to the Administrative Agent for the
account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses which it may reasonably incur as a result
of such payment, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance.
(c) Any and all payments by or on account of any obligation of the Company
hereunder shall be made, in accordance with Section 2.14, free and clear of and
without deduction or withholding for any and all present or future taxes,
levies, imposts, duties, deductions, assessments, fees or other charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender and the Administrative Agent, taxes imposed on or measured by its
overall net income (however denominated), and franchise taxes imposed on it (in
lieu of net income taxes), by the jurisdiction under the laws of which such
Lender or the Administrative Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender, taxes imposed on
or measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction of such
Lender's Applicable Lending Office or any political subdivision thereof (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Company shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Administrative Agent, (i) the sum payable shall
be increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
8.04) such Lender or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Company shall make such deductions and (iii) the Company shall timely
pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(d) The Company will indemnify each Lender and the Administrative Agent for
the full amount of Taxes (including, without limitation, any Taxes imposed by
any jurisdiction on amounts payable under this Section 8.04) paid by such Lender
or the Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes were correctly or legally imposed or asserted. This
indemnification shall be made within 10 days from the date such Lender or the
Administrative Agent (as the case may be) makes written demand therefor. A
certificate as to the amount of such payment or liability delivered to the
Company by a Lender (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error. As soon as practicable after any payment of
Taxes by the Company to the relevant taxation authority or other authority, the
Company shall deliver to the Administrative Agent the original or a certified
copy of a receipt issued by such authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Prior to the date of the initial Borrowing or on the date of the
Assignment and Assumption pursuant to which it became a Lender, in the case of
each Lender that becomes a Lender by virtue of entering into an Assignment and
Assumption, and from time to time thereafter if requested by the Company or the
Administrative Agent, each Lender organized under the laws of a jurisdiction
outside the United States shall provide the Administrative Agent and the Company
with the forms prescribed by the Internal Revenue Service of the United States
certifying that such Lender is exempt from United States withholding taxes with
respect to all payments to be made to such Lender hereunder. If for any reason
during the term of this Agreement, any Lender becomes unable to submit the forms
referred to above or the information or representations contained therein are no
longer accurate in any material respect, such Lender shall notify the
Administrative Agent and the Company in writing to that effect. Unless the
Company and the Administrative Agent have received forms or other documents
satisfactory to them indicating that payment hereunder are not subject to United
States withholding tax, the Company or the Administrative Agent shall withhold
taxes from such payments at the applicable statutory rate in the case of
payments to or for any Lender organized under the laws of a jurisdiction outside
the United States.
(f) Any Lender claiming any additional amounts payable pursuant to 2.12 or
Section 8.04(c) or (d) or who gives a notice pursuant to Section 2.13 shall use
its reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) (i) to change the jurisdiction of its Applicable
Lending Office if, in the judgment of such Lender, the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
which may thereafter accrue pursuant to Section 2.12 or Section 8.04(c) or (d),
or eliminate the need for the notice pursuant to Section 2.13, and would not, in
the reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender and (ii) to otherwise minimize the amounts due, or to become due, under
Sections 8.04(c) and (d). The Company hereby agrees to pay all reasonable costs
and expenses incurred by any Lender in connection with any such change in
jurisdiction.
(g) If the Company makes any additional payment to any Lender pursuant to
Section 8.04(c) or (d) in respect of any Taxes, and such Lender determines that
it has received (i) a refund of such Taxes or (ii) a credit against or relief or
remission for, or a reduction in the amount of, any tax or other governmental
charge solely as a result of any deduction or credit for any Taxes with respect
to which it has received payments under Sections 8.04(c) and (d), such Lender
shall, to the extent that it can do so without prejudice to the retention of
such refund, credit, relief, remission or reduction, pay to the Company such
amount as such Lender shall have determined to be attributable to the deduction
or withholding of such Taxes. If such Lender later determines that it was not
entitled to such refund, credit, relief, remission or reduction to the full
extent of any payment made pursuant to the first sentence of this Section
8.04(g), the Company shall upon demand of such Lender promptly repay the amount
of such overpayment. Any determination made by such Lender pursuant to this
Section 8.04(g) shall in the absence of bad faith or manifest error be
conclusive, and nothing in this Section 8.04(g) shall be construed as requiring
any Lender to conduct its business or to arrange or alter in any respect its tax
or financial affairs so that it is entitled to receive such a refund, credit or
reduction or as allowing any Person to inspect any records, including tax
returns, of any Lender.
(h) The Company hereby agrees to indemnify and hold harmless each Lender,
the Administrative Agent (and any sub-agent thereof), counsel to the
Administrative Agent and each Related Party of any of the foregoing Persons
(each, an "Indemnified Person") from and against any and all claims, damages,
losses, liabilities, costs or expenses (including reasonable attorney's fees and
expenses, whether or not such Indemnified Person is named as a party to any
proceeding or is otherwise subjected to judicial or legal process arising from
any such proceeding), joint and several, that may actually be incurred by or
asserted or awarded against any Indemnified Person (including, without
limitation, in connection with any investigation, litigation or proceeding or
the preparation of a defense in connection therewith) in each case by reason of
or in connection with (i) the execution, delivery, or performance of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or thereunder, the
consummation of the transactions contemplated hereby or thereby, or, in the case
of the Administrative Agent (and any sub-agent thereof) and its Related Parties
only, the administration of this Agreement and the other documents delivered in
connection therewith, (ii) any Advance or the use or proposed use of the
proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous
Materials in violation of applicable Environmental Laws on or from any property
owned or operated by the Company or any of its Subsidiaries, or any
Environmental Liability related in any way to the Company or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory, whether brought by a third party or by the Company, and
regardless of whether any Indemnified Person is a party thereto, provided that
such indemnity shall not, as to any Indemnified Person, be available to the
extent that such claims, damages, losses, liabilities, costs or expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnified Person.
(i) To the extent that the Company for any reason fails to indefeasibly pay
any amount required under subsection (a) or (h) of this Section 8.04 to be paid
by it to the Administrative Agent (or any sub-agent thereof) or any Related
Party of any of the foregoing, each Lender severally agrees to pay to the
Administrative Agent (or any such sub-agent) or such Related Party, as the case
may be, such Lender's ratable portion (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent (or any such sub-agent) in its
capacity as such, or against any Related Party of any of the foregoing acting
for the Administrative Agent (or any such sub-agent) in connection with such
capacity. The obligations of the Lenders under this subsection (i) are subject
to the provisions of Section 2.02(d).
(j) To the fullest extent permitted by applicable law, the Company shall
not assert, and hereby waives, any claim against any Indemnified Person, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Advance or the use
of the proceeds thereof. No Indemnified Person referred to in subsection (h)
above shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in
connection with this Agreement or the transactions contemplated hereby.
(k) Without prejudice to the survival of any other agreement of the Company
hereunder, the agreements and obligations of the Company contained in this
Section 8.04 shall survive the resignation of the Administrative Agent, the
replacement of any Lender, the payment, satisfaction or discharge in full of
principal and interest hereunder and the termination of Commitments.
SECTION 8.05. Right of Set-off.
Upon (i) the occurrence and during the continuance of any Event of Default
and (ii) the making of the request or the granting of the consent specified by
Section 6.01 to authorize the Administrative Agent to declare the Advances due
and payable pursuant to the provisions of Section 6.01, each Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of the Company now
or hereafter existing under this Agreement, irrespective of whether or not such
Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. Each Lender agrees promptly to notify the Company
after any such set-off and application made by such Lender; provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) which such Lender may have.
SECTION 8.06. Binding Effect.
This Agreement shall become effective when it shall have been executed by
the Company and the Administrative Agent and when the Administrative Agent shall
have been notified by each Lender that such Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Company, the
Administrative Agent and each Lender and their respective successors and
assigns, except that the Company shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of subsection (a) of Section 8.07,
(ii) by way of participation in accordance with the provisions of subsection (e)
of Section 8.07, (iii) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (h) of Section 8.07, or (iv) to an SPC
in accordance with the provisions of subsection (i) of this Section (and any
other attempted assignment or transfer by any party hereto shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent provided in
subsection (d) of this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
SECTION 8.07. Assignments and Participations.
(a) Each Lender may (i) with notice to the Company and to the
Administrative Agent, assign to any other Lender, any Affiliate of a Lender or
any Approved Fund all or a portion of its rights and obligations under this
Agreement, and (ii) with the consent of the Administrative Agent and the Company
(such consent not to be unreasonably withheld or delayed and, in the case of the
Company, such consent shall not be required if a Default or an Event of Default
has occurred and is continuing), assign to one or more other Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment and the Advances owing to
it); provided, however, that (A) except in the case of an assignment of the
entire remaining amount of the assigning Lender's Commitment and the Advances at
the time owing to it or in the case of an assignment to a Lender or an Affiliate
of a Lender or an Approved Fund with respect to a Lender, the aggregate amount
of the Commitment (which for this purpose includes Advances outstanding
thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Advances of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Administrative Agent or, if "Trade Date"
is specified in the Assignment and Assumption, as of the Trade Date, shall not
be less than $5,000,000 unless each of the Administrative Agent and, so long as
no Default or Event of Default has occurred and is continuing, the Company
otherwise consents (each such consent not to be unreasonably withheld or
delayed); provided, however, that concurrent assignments to members of an
Assignee Group and concurrent assignments from members of an Assignee Group to a
single Eligible Assignee (or to an Eligible Assignee and members of its Assignee
Group) will be treated as a single assignment for purposes of determining
whether such minimum amount has been met, (B) each partial assignment shall be
made as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement with respect to the Advances or the
Commitment assigned, (C) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Assumption substantially in the form of Exhibit C
hereto and (C) such parties shall also deliver to the Administrative Agent a
processing and recordation fee in the amount, if any, required as set forth on
Schedule 8.07, and the Eligible Assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Assumption, (x) the assignee thereunder shall
be a party hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment and Assumption, have the rights
and obligations of a Lender hereunder and (y) the Lender assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Assumption, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto) but shall continue to be entitled to the benefits of Sections
2.12, and 8.04 with respect to facts and circumstances occurring prior to the
effective date of such assignment. Upon request, the Company (at its expense)
shall execute and deliver a Note to the assignee Lender. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this subsection shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with subsection (d) of this Section.
(b) By executing and delivering an Assignment and Assumption, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Assumption, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Company, any of its Subsidiaries or Affiliates or any Person obligated in
respect of this Agreement or the performance or observance by the Company of any
of its obligations under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 5.01(i)(ii) and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Assumption; (iv) such assignee will,
independently and without reliance upon the Administrative Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; and (vi) such assignee agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent, acting solely for this purpose as an agent of
the Company, shall maintain at its address referred to in Section 8.02 a copy of
each Assignment and Assumption (and copies of the related consents of the
Company and the Administrative Agent to such assignment) delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitment of, and principal amount of the Advances owing
to, each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Company, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement notwithstanding notice to the contrary. The Register shall be
available for inspection by the Company or any Lender at any reasonable time and
from time to time upon reasonable prior notice. In addition, at any time that a
request for a consent for a material or substantive change to this Agreement is
pending, any Lender may request and receive from the Administrative Agent a copy
of the Register.
(d) Upon its receipt of an Assignment and Assumption executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
the Administrative Agent shall, if such Assignment and Assumption has been
completed and is in substantially the form of Exhibit C hereto, (i) accept such
Assignment and Assumption, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Company.
(e) Each Lender may at any time, without the consent of, or notice to, the
Company or the Administrative Agent, sell participations to any Person (other
than a natural person or the Company or any of the Company's Affiliates or
Subsidiaries) (each, a "Participant") in or to all or a portion of its rights
and obligations under this Agreement (including, without limitation, all or a
portion of its Commitment and/or the Advances owing to it); provided, however,
that (i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Company hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall remain the holder
of any such Advances for all purposes of this Agreement, (iv) the Company, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and (v) any agreement or instrument pursuant
to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, waiver or other
modification described in the first proviso to Section 8.01 that affects such
Participant. Without limiting the generality of the foregoing: (i) such
participating banks or other entities shall be entitled to the cost protection
provisions contained in Sections 2.08, 2.12, 8.04(b) and 8.04(c) only if, and to
the same extent, the Lender from which such participating banks or other
entities acquired its participation would, at the time, be entitled to claim
thereunder, unless the sale of the participation to such Participant is made
with Company's prior written consent; and (ii) such participating banks or other
entities shall also, to the fullest extent permitted by law, be entitled to
exercise the rights of set-off contained in Section 8.05 as if such
participating banks or other entities were Lenders hereunder, provided, such
Participant agrees to be subject to Section 2.14 as though it were a Lender.
(f) If any Lender or any Participant shall make any demand for payment
under Section 2.12 or the Company is required to pay any additional amount to
any Lender or governmental authority for the account of any Lender pursuant to
Section 8.04(c) or (d), then within 30 days after any such demand (if, but only
if, such demanded payment has been made by the Company), the Company may, at its
sole expense and effort, upon notice to such Lender and with the approval of the
Administrative Agent (which approval shall not be unreasonably withheld or
delayed) and, demand that such Lender assign in accordance with and subject to
the restrictions contained in, and consents required by, this Section 8.07 to
one or more Eligible Assignees designated by the Company all (but not less than
all) of such Lender's Commitment (if any) and the Advances owing to it within
the period ending on the later to occur of such 30th day and the last day of the
longest of the then current Interest Periods for such Advances, provided that
(i) no Default or Event of Default shall then have occurred and be continuing;
(ii) the Company shall have paid to the Administrative Agent the assignment fee
specified in Section 8.07(a); (iii) such Lender shall have received payment of
an amount equal to the outstanding principal of its Advances, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder (including
any amounts under Section 8.04(b) from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Company (in the case
of all other amounts); (iv) in the case of any such assignment resulting from a
claim for compensation under Section 2.12 or payments required to be made
pursuant to Section 8.04(c) or (d), such assignment will result in a reduction
in such compensation or payments thereafter; and (v) such assignment does not
conflict with applicable laws. If any such Eligible Assignee designated by the
Company shall fail to consummate such assignment on terms acceptable to such
Lender, or if the Company shall fail to designate any such Eligible Assignees
for all or part of such Lender's Commitment or Advances, then such demand by the
Company shall become ineffective; it being understood for purposes of this
subsection (f) that such assignment shall be conclusively deemed to be on terms
acceptable to such Lender, and such Lender shall be compelled to consummate such
assignment to an Eligible Assignee designated by the Company, if such Eligible
Assignee (i) shall agree to such assignment by entering into an Assignment and
Assumption in substantially the form of Exhibit C hereto with such Lender and
(ii) shall offer compensation to such Lender in an amount equal to all amounts
then owing by the Company to such Lender hereunder, whether for principal,
interest, fees, costs or expenses (other than the demanded payment referred to
above and payable by the Company as a condition to the Company's right to demand
such assignment), or otherwise.
A Lender shall not be required to make any such assignment or delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Company to require such assignment and delegation
cease to apply.
(g) Subject to Section 8.16, any Lender may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 8.07, disclose to the assignee or participant or proposed assignee
or participant, any information relating to the Company furnished to such Lender
by or on behalf of the Company.
(h) Anything in this Section 8.07 to the contrary notwithstanding, any
Lender may assign and pledge all or any portion of its Commitment and the
Advances owing to it to any Federal Reserve Bank (and its transferees) as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank. No such assignment shall release the assigning Lender from its obligations
hereunder.
(i) Notwithstanding anything to the contrary contained herein, any Lender
(a "Granting Lender") may grant to a special purpose funding vehicle (an "SPC")
of such Granting Lender identified as such in writing from time to time by the
Granting Lender to the Administrative Agent and the Company, the option to
provide to the Company all or any part of any Advance that such Granting Lender
would otherwise be obligated to make to the Company pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by any such SPC
to make any Advance, (ii) if such SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Advance, the Granting Lender
shall be obligated to make such Advance pursuant to the terms hereof or, if it
fails to do so, to make such payment to the Administrative Agent as is required
under Section 2.12(b)(i) and (iii) no SPC or Granting Lender shall be entitled
to receive any greater amount pursuant to Section 2.08 or 2.12 than the Granting
Lender would have been entitled to receive had the Granting Lender not otherwise
granted such SPC the option to provide any Advance to the Company. The making of
an Advance by an SPC hereunder shall utilize the Commitment of the Granting
Lender to the same extent, and as if, such Advance were made by such Granting
Lender. Each party hereto hereby agrees that no SPC shall be liable for any
indemnity or similar payment obligation under this Agreement for which a Lender
would otherwise be liable so long as, and to the extent that, the related
Granting Lender provides such indemnity or makes such payment. In furtherance of
the foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Agreement) that, prior to the date that is one year and
one day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against or join any other
person in instituting against such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any State thereof. Notwithstanding the foregoing, the Granting Lender
unconditionally agrees to indemnify the Company, the Administrative Agent and
each Lender against all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be incurred by or asserted against the Company, the
Administrative Agent or such Lender, as the case may be, in any way relating to
or arising as a consequence of any such forbearance or delay in the initiation
of any such proceeding against its SPC. Each party hereto hereby acknowledges
and agrees that no SPC shall have the rights of a Lender hereunder, such rights
being retained by the applicable Granting Lender. Accordingly, and without
limiting the foregoing, each party hereby further acknowledges and agrees that
no SPC shall have any voting rights hereunder and that the voting rights
attributable to any Advance made by an SPC shall be exercised only by the
relevant Granting Lender and that each Granting Lender shall serve as the
administrative agent and attorney-in-fact for its SPC and shall on behalf of its
SPC receive any and all payments made for the benefit of such SPC and take all
actions hereunder to the extent, if any, such SPC shall have any rights
hereunder. In addition, notwithstanding anything to the contrary contained in
this Agreement any SPC may with notice to, but without the prior written consent
of any other party hereto, assign all or a portion of its interest in any
Advances to the Granting Lender. This Section may not be amended without the
prior written consent of each Granting Lender, all or any part of whose Advance
is being funded by an SPC at the time of such amendment.
SECTION 8.08. Governing Law.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. THE COMPANY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK SITTING IN XXX XXXX XXXX XXX XX XXX XXXXXX
XXXXXX DISTRICT COURT OF THE STATE OF NEW YORK, AND ANY APPELLATE COURT FROM ANY
THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE
PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT
OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK
STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH
FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
NOTHING IN THIS AGREEMENT OR IN ANY OTHER DOCUMENT SHALL AFFECT ANY RIGHT THAT
THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER DOCUMENT AGAINST THE COMPANY
OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. THE COMPANY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER DOCUMENT IN ANY COURT REFERRED TO IN
SUBSECTION (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE
OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 8.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.
SECTION 8.09. WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 8.10. Execution in Counterparts.
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
SECTION 8.11. Severability.
Any provision of this Agreement which is prohibited, unenforceable or not
authorized in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition, unenforceability or non-authorization without
invalidating the remaining provisions hereof or affecting the validity,
enforceability or legality of such provision in any other jurisdiction.
SECTION 8.12. Headings.
Section headings in this Agreement are included herein for convenience of
reference only and shall not constitute a part of this Agreement for any other
purpose.
SECTION 8.13. Entire Agreement.
This Agreement constitutes the entire contract between the parties relative
to the subject matter hereof. Any previous agreement among the parties with
respect to the subject matter hereof is superseded by this Agreement. Except as
is expressly provided for herein, nothing in this Agreement, expressed or
implied, is intended to confer upon any party other than the parties hereto any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
SECTION 8.14. Payments Set Aside.
To the extent that any payment by or on behalf of the Company is made to
the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of setoff, and such payment or the proceeds of such
setoff or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such setoff had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share (without duplication) of any amount so recovered from or repaid
by the Administrative Agent, plus interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the Federal Funds
Rate from time to time in effect. The obligations of the Lenders under clause
(b) of the preceding sentence shall survive the payment in full of all principal
and interest hereunder and the termination of this Agreement.
SECTION 8.15. Treatment of Certain Information; Confidentiality.
Each of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (i) to its Related Parties (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (ii) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (iii)
to the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (iv) to any other party hereto, (v) in connection with
the exercise of any remedies hereunder or any action or proceeding relating to
this Agreement or the enforcement of rights hereunder or thereunder, (vi)
subject to an agreement containing provisions substantially the same as those of
this Section, to (A) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement or (B) any actual or prospective counterparty (or its advisors) to any
swap or derivative transaction relating to the Company and its obligations,
(vii) with the consent of the Company or (viii) to the extent such Information
(A) becomes publicly available other than as a result of a breach of this
Section or (B) becomes available to the Administrative Agent, any Lender or any
of their respective Affiliates on a non-confidential basis from a source other
than the Company.
For purposes of this Section, "Information" means all information received
from the Company or any Subsidiary relating to the Company or any Subsidiary or
any of their respective businesses, other than any such information that is
available to the Administrative Agent or any Lender on a nonconfidential basis
prior to disclosure by the Company or any Subsidiary, provided that, in the case
of information received from the Company or any Subsidiary after the date
hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
Each of the Administrative Agent and the Lenders acknowledges that (a) the
Information may include material non-public information concerning the Company
or a Subsidiary, as the case may be, (b) it has developed compliance procedures
regarding the use of material non-public information and (c) it will handle such
material non-public information in accordance with applicable law, including
Federal and state securities laws.
SECTION 8.16. Survival of Representations and Warranties. All
representations and warranties made hereunder or other document delivered
pursuant hereto or thereto or in connection herewith or therewith shall survive
the execution and delivery hereof and thereof. Such representations and
warranties have been or will be relied upon by the Administrative Agent and each
Lender, regardless of any investigation made by the Administrative Agent or any
Lender or on their behalf and notwithstanding that the Administrative Agent or
any Lender may have had notice or knowledge of any Default at the time of any
Advance, and shall continue in full force and effect as long as any Advance or
any other obligation of the Company hereunder shall remain unpaid or
unsatisfied.
SECTION 8.17. USA PATRIOT Act Notice. Each Lender that is subject to the
Act (as hereinafter defined) and the Administrative Agent (for itself and not on
behalf of any Lender) hereby notifies the Company that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act"), it is required to obtain, verify and record
information that identifies the Company, which information includes the name and
address of the Company and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify the Company in accordance with
the Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
FLORIDA POWER CORPORATION d/b/a
PROGRESS ENERGY FLORIDA, INC.
By
------------------------------------------------
Xxxxxx X. Xxxxxxxx
Treasurer
BANK OF AMERICA, N.A., as Administrative Agent and as a
Lender
By
------------------------------------------------
Name:
Title:
BARCLAYS BANK PLC
By
------------------------------------------------
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
By
------------------------------------------------
Name:
Title:
DEUTSCHE BANK AG,
NEW YORK BRANCH
By
------------------------------------------------
Name:
Title:
By
------------------------------------------------
Name:
Title:
SUNTRUST BANK
By
------------------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, N.A.
By
------------------------------------------------
Name:
Title:
WACHOVIA BANK, N.A.
By
------------------------------------------------
Name:
Title:
CITIBANK, N.A.
By
------------------------------------------------
Name:
Title:
MELLON BANK, N.A.
By
------------------------------------------------
Name:
Title:
UFJ BANK LIMITED
By
------------------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By
------------------------------------------------
Name:
Title:
SCHEDULE I
Existing Facilities
(i) $200,000,000 364-Day Revolving Credit Agreement, dated as of April 1, 2003,
as amended, among the Company, the lenders party thereto and JPMorgan Chase
Bank, as administrative agent.
(ii) $200,000,000 Three-Year Credit Agreement, dated as of April 1, 2003, as
amended, among the Company, the lenders party thereto and JPMorgan Chase Bank,
as administrative agent.
SCHEDULE II
Commitments
----------------------- ------------------- ----------------------------------------------------- --------------------------------
Lender Commitment Domestic Lending Office Eurodollar Lending Office
------ ---------- ----------------------- -------------------------
----------------------- ------------------- ----------------------------------------------------- --------------------------------
Bank of America, N.A. $ 65,000,000 000 Xxxx Xxxxxx, 00xx Xx. Same as Domestic Lending Office
Mail Code: TX1-492-14-12
Xxxxxx, XX 00000-0000
Attention: Xxxxxxxxxx X. Xxxxxxxxx
Telephone: 000.000.0000
Telecopier: 214.290.8372
Email: xxxxxxxxxx.xxxxxxxxx@xxxxxxxxxxxxx.xxx
----------------------- ------------------- ----------------------------------------------------- --------------------------------
Barclays Bank PLC $ 65,000,000 Barclays Capital Services, LLC Same as Domestic Lending Xxxxxx
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telephone: 000.000.0000
Telecopier: 973.576.3014
Email: xxxx.xxxxxxx@xxxxxx.xxx
----------------------- ------------------- ----------------------------------------------------- --------------------------------
The Bank of $ 45,000,000 BTM Information Services, Inc. Same as Domestic Lending Office
Tokyo-Mitsubishi, c/o The Bank of Tokyo-Mitsubishi, Ltd., NY Branch
Ltd., New York Branch 1251 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx XX, AVP, Loan Operations Dept.
Telephone: 000.000.0000
Telecopier: 201.521.2304
Email: N/A
----------------------- ------------------- ----------------------------------------------------- --------------------------------
Deutsche Bank AG New $ 45,000,000 00 Xxxx Xxxxxx Same as Domestic Xxxxxxx Xxxxxx
Xxxx Xxxxxx Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: 000.000.0000
Telecopier: 832.239.4693
Email: xxxxxxx.xxxxxxx@xx.xxx
----------------------- ------------------- ----------------------------------------------------- --------------------------------
SunTrust Bank $ 45,000,000 000 X. Xxxxxx Xxxxxx Same as Domestic Xxxxxxx Xxxxxx
XX 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx, CLS
Telephone: 000.000.0000
Telecopier: 407.237.5342
Email: xxxx.xxxxxx@xxxxxxxx.xxx
----------------------- ------------------- ----------------------------------------------------- --------------------------------
JPMorgan Chase Bank, $ 40,000,000 1111 Xxxxxx - 10 Same as Domestic Lending Office
N.A. Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Account Manager
Telephone: 000.000.0000
Telecopier: 713.427.6307
Email: xxxxx.xxxxxxx@xxxxxxxx.xxx
----------------------- ------------------- ----------------------------------------------------- --------------------------------
Wachovia Bank, N.A. $ 40,000,000 000 Xxxxx Xxxxxxx Xxxxxx Same as Domestic Xxxxxxx Xxxxxx
Xxxxxxxxx XX 00000-0000
Attention: Xxxxxx Xxxxxxx, Analyst
Telephone: 000.000.0000
Telecopier: 704.715.0091
E-Mail: xxxxxx.xxxxxxx0@xxxxxxxx.xxx
----------------------- ------------------- ----------------------------------------------------- --------------------------------
Citibank, N.A. $ 35,000,000 000 Xxxxxxxxx Xxxxxx Same as Domestic Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx
Telephone: 212.816-8553
Telecopier: 212.816-8098
Email: xxxxxx.x.xxxx@xxxxxxxxx.xxx
----------------------- ------------------- ----------------------------------------------------- --------------------------------
Mellon Bank, N.A. $ 25,000,000 000 Xxxxxxx Xxxx Xxxxx Same as Domestic Lending Office
Room 153-1203
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxx, Loan Administrator
Telephone: 000.000.0000
Telecopier: 412.209.6117
Email: N/A
----------------------- ------------------- ----------------------------------------------------- --------------------------------
UFJ Bank Limited $ 25,000,000 00 Xxxx 00xx Xxxxxx Same as Domestic Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx Xxxx, Assistant Vice President
Telephone: 000.000.0000
Telecopier: 212.754.2368
Email: N/A
----------------------- ------------------- ----------------------------------------------------- --------------------------------
The Bank of New York $ 20,000,000 One Wall Street Same as Domestic Lending Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xx, Energy Division
Telephone: 000.000.0000
Telecopier: 212.635.7552
Email: xxx@xxxxxxxx.xxx
----------------------- ------------------- ----------------------------------------------------- --------------------------------
Total: $ 450,000,000
----------------------- ------------------- ----------------------------------------------------- --------------------------------
EXHIBIT A-1
NOTICE OF BORROWING
[Date]
Bank of America, N.A., as Administrative Agent
for the Lenders parties to the
Credit Agreement referred to below
000 Xxxx Xxxxxx, 00xx Xx.
Mail Code: TX1-492-14-12
Xxxxxx, XX 00000-0000
Attention: Xxxxxxxxxx X. Xxxxxxxxx
Ladies and Gentlemen:
The undersigned, FLORIDA POWER CORPORATION d/b/a PROGRESS ENERGY FLORIDA,
INC., refers to the five-year Credit Agreement, dated as of March 28, 2005 (the
"Credit Agreement", the terms defined therein being used herein as therein
defined), among the undersigned, certain Lenders from time to time parties
thereto and BANK OF AMERICA, N.A., as Administrative Agent for said Lenders, and
hereby gives you notice pursuant to Section 2.02 of the Credit Agreement that
the undersigned hereby requests a Borrowing under the Credit Agreement, and in
that connection sets forth below the information relating to such Borrowing (the
"Proposed Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is ____________,
20__.
(ii) The Type of Advances comprising the Proposed Borrowing is
[Base Rate Advances][Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$______________.
(iv) The Interest Period for each Eurodollar Rate Advance that is
an Advance made as part of the Proposed Borrowing is _____ months.
Very truly yours,
FLORIDA POWER CORPORATION d/b/a
PROGRESS ENERGY FLORIDA, INC.
By ___________________________________________
Name:
Title:
EXHIBIT A-2
NOTICE OF CONVERSION
[Date]
Bank of America, N.A., as Administrative Agent
for the Lenders parties to the
Credit Agreement referred to below
000 Xxxx Xxxxxx, 00xx Xx.
Mail Code: TX1-492-14-12
Xxxxxx, XX 00000-0000
Attention: Xxxxxxxxxx X. Xxxxxxxxx
Ladies and Gentlemen:
The undersigned, FLORIDA POWER CORPORATION d/b/a PROGRESS ENERGY FLORIDA,
INC., refers to the five-year Credit Agreement, dated as of March 28, 2005 (the
"Credit Agreement", the terms defined therein being used herein as therein
defined), among the undersigned, certain Lenders from time to time parties
thereto and BANK OF AMERICA, N.A., as Administrative Agent for said Lenders, and
hereby gives you notice pursuant to Section 2.10 of the Credit Agreement that
the undersigned hereby requests a Conversion under the Credit Agreement, and in
that connection sets forth the terms on which such Conversion (the "Proposed
Conversion") is requested to be made:
(i) The Business Day of the Proposed Conversion is
______________, 20__.
(ii) The Type of, and Interest Period (if any) applicable to, the
Advances (or portions thereof) proposed to be Converted:
________________.
(iii) The Type of Advance to which such Advances (or portions
thereof) are proposed to be Converted: ------------------------.
(iv) Except in the case of a Conversion to Base Rate Advances,
the initial Interest Period to be applicable to the Advances resulting
from such Conversion: ______________________________.
(v) The aggregate amount of Advances (or portions thereof)
proposed to be Converted is $________.
The undersigned hereby certifies that, on the date hereof, and on the date
of the Proposed Conversion, no event has occurred and is continuing, or would
result from such Proposed Conversion, which constitutes an Event of Default.
Very truly yours,
FLORIDA POWER CORPORATION d/b/a
PROGRESS ENERGY FLORIDA, INC.
By ____________________________________________
Name:
Title:
EXHIBIT B
FORM OF NOTE
[Date]
FOR VALUE RECEIVED, the undersigned (the "Company"), hereby promises to pay
to _____________________ or its registered assigns (the "Lender"), in accordance
with the provisions of the Agreement (as hereinafter defined), the principal
amount of each Advance from time to time made by the Lender to the Company under
that certain Credit Agreement, dated as of March 28, 2005 (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the
"Agreement;" the terms defined therein being used herein as therein defined),
among the Company, the Lenders from time to time party thereto, and Bank of
America, N.A., as Administrative Agent.
The Company promises to pay interest on the unpaid principal amount of each
Advance from the date of the Advance until such principal amount is paid in
full, at such interest rates and at such times as provided in the Agreement. All
payments of principal and interest shall be made to the Administrative Agent for
the account of the Lender in U.S. dollars to the Administrative Agent at its
address referred to in Section 8.02 of the Agreement. If any amount is not paid
in full when due hereunder, such unpaid amount shall bear interest, to be paid
upon demand, from the due date thereof until the date of actual payment (and
before as well as after judgment) computed at the per annum rate set forth in
the Agreement.
This Note is one of the Notes referred to in the Agreement, is entitled to
the benefits thereof and may be prepaid in whole or in part subject to the terms
and conditions provided therein. Upon the occurrence and continuation of one or
more of the Events of Default specified in the Agreement, all amounts then
remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable all as provided in the Agreement. Advances made by
the Lender shall be evidenced by one or more loan accounts or records maintained
by the Lender in the ordinary course of business. The Lender may also attach
schedules to this Note and endorse thereon the date, amount and maturity of its
Advances and payments with respect thereto.
The Company, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
FLORIDA POWER CORPORATION d//b/a
PROGRESS ENERGY FLORIDA, INC.
By:
----------------------------------------
Name:
Title:
ADVANCES AND PAYMENTS WITH RESPECT THERETO
Amount of Outstanding
Principal or Principal
Type of Advance Amount of End of Interest Interest Paid Balance This Notation
Date Made Advance Made Period This Date Date Made By
-------------------- ----------------- ----------------- ----------------- ----------------- ----------------- -----------------
EXHIBIT C
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is dated
as of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor] (the "Assignor") and [Insert name of Assignee] (the
"Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the "Credit
Agreement"), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below (i) all of the Assignor's rights
and obligations as a Lender under the Credit Agreement and any other documents
or instruments delivered pursuant thereto to the extent related to the amount
and percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below and
(ii) to the extent permitted to be assigned under applicable law, all claims,
suits, causes of action and any other right of the Assignor (in its capacity as
a Lender) against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in any
way based on or related to any of the foregoing, including, but not limited to,
contract claims, tort claims, malpractice claims, statutory claims and all other
claims at law or in equity related to the rights and obligations sold and
assigned pursuant to clause (i) above (the rights and obligations sold and
assigned pursuant to clauses (i) and (ii) above being referred to herein
collectively as, the "Assigned Interest"). Such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [and is an Affiliate/Approved
Fund of [identify Lender]1]
3. Company(s): ______________________________
4. Administrative Agent: Bank of America, N.A., as the administrative
agent under the Credit Agreement
5. Credit Agreement: Credit Agreement, dated as of March 28, 2005, among
Florida Power Corporation d/b/a Progress Energy Florida, Inc., the
Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent
6. Assigned Interest:
--------------------------- -------------------------- --------------------------- ------------------------ -----------------------
Aggregate
Amount of Amount of Percentage
Commitment Commitment Assigned of
Facility Assigned2 for all Lenders* Assigned* Commitment3 CUSIP Number
--------------------------- -------------------------- --------------------------- ------------------------ -----------------------
------------- $--------------- $--------------- -------------%
--------------------------- -------------------------- --------------------------- ------------------------ -----------------------
------------- $--------------- $--------------- -------------%
--------------------------- -------------------------- --------------------------- ------------------------ -----------------------
------------- $--------------- $--------------- -------------%
--------------------------- -------------------------- --------------------------- ------------------------ -----------------------
7. Trade Date: __________________]4
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By _________________________________________
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By _________________________________________
Title:
[Consented to and]5 Accepted:
Bank of America, N.A., as
Administrative Agent
By: _________________________________
Title:
[Consented to:]6
By: _________________________________
Title:
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
[___________________]7
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest
is free and clear of any lien, encumbrance or other adverse claim created by it
and (iii) it has full power and authority, and has taken all action necessary,
to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with the Credit Agreement, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or any
collateral thereunder, (iii) the financial condition of the Company, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of the
Credit Agreement or (iv) the performance or observance by the Company, any of
its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under the Credit Agreement.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of
the Assigned Interest, shall have the obligations of a Lender thereunder, (iv)
it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 5.01(i)(ii) thereof,
as applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender, attached hereto is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by
the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Agreement are
required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative Agent
shall make all payments in respect of the Assigned Interest (including payments
of principal, interest, fees and other amounts) to the Assignor for amounts
which have accrued to but excluding the Effective Date and to the Assignee for
amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of
____________________ [confirm that choice of law provision parallels the Credit
Agreement].
--------
1 Select as applicable.
2 Fill in the appropriate terminology for the types of facilities under the
Credit Agreement that are being assigned under this Assignment (e.g.
"Revolving Credit Commitment", "Term Advance Commitment", etc.).
3 Set forth, to at least 9 decimals, as a percentage of the Commitment of all
Lenders thereunder.
4 To be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade Date.
5 To be added only if the consent of the Administrative Agent is required by
the terms of the Credit Agreement.
6 To be added only if the consent of the Company and/or other parties (e.g.
Swing Line Lender, L/C Issuer) is required by the terms of the Credit
Agreement.
7 Describe Credit Agreement at option of Administrative Agent.
EXHIBIT D-1
FORM OF OPINION OF COUNSEL FOR THE COMPANY
[Date]
To each of the Lenders parties to the Agreement
referred to below and Bank of America, N.A., as
Administrative Agent
Re: Florida Power Corporation d/b/a Progress Energy Florida, Inc.
Ladies and Gentlemen:
This opinion is furnished to you by us as counsel for Florida Power
Corporation d/b/a Progress Energy Florida, Inc. (the "Borrower") pursuant to
Section 3.01(a)(viii) of the five-year Credit Agreement, dated as of March 28,
2005 (the "Agreement", the terms defined therein being used herein as therein
defined), among the Borrower, certain lenders thereunder (the "Lenders") and
Bank of America, N.A., as administrative agent for the Lenders.
In connection with the preparation, execution and delivery of the
Agreement, we have examined:
(1) The Agreement.
(2) The documents furnished by the Borrower pursuant to Section 3.01 of the
Agreement.
(3) The opinion letter of even date herewith, addressed to you by [R.
Xxxxxxxxx Xxxxx, Associate General Counsel of Progress Energy Service Company,
LLC], in his capacity as counsel to the Borrower and delivered in connection
with the transactions contemplated by the Agreement (the "Company Opinion
Letter").
We have also examined the originals, or copies of such other corporate
records of the Borrower, certificates of public officials and of officers of the
Borrower and agreements, instruments and other documents as we have deemed
necessary as a basis for the opinions expressed below. As to questions of fact
material to such opinions, we have, when relevant facts were not independently
established by us, relied upon certificates of the Borrower or its officers or
of public officials. We have assumed the authenticity of all documents submitted
to us as originals, the conformity to originals of all documents submitted as
certified or photostatic copies and the authenticity of the originals (other
than those of the Borrower), and the due execution and delivery, pursuant to due
authorization, of the Agreement by the Lenders and the Administrative Agent and
the validity and binding effect thereof on such parties. Whenever the phrase "to
our knowledge" is used in this opinion it refers to the actual knowledge of the
attorneys of this firm involved in the representation of the Borrower without
independent investigation.
We are qualified to practice law in the States of Florida and New York, and
the opinions expressed herein are limited to the law of the States of Florida
and New York and the federal law of the United States. To the extent that our
opinions expressed herein depend upon opinions expressed in paragraphs 1 through
4 of the Company Opinion Letter, we have relied without independent
investigation on the accuracy of the opinions expressed in the Company Opinion
Letter, subject to the assumptions, qualifications and limitations set forth in
the Company Opinion Letter.
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the opinion that the Agreement constitutes the legal, valid
and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms except as enforcement may be limited or otherwise
affected by (a) bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or other similar laws affecting the rights of creditors generally and
(b) principles of equity, whether considered at law or in equity.
The opinion set forth above is subject to the following qualifications:
(a) In addition to the application of equitable principles described above,
courts have imposed an obligation on contracting parties to act reasonably and
in good faith in the exercise of their contractual rights and remedies, and may
also apply public policy considerations in limiting the right of parties seeking
to obtain indemnification under circumstances where the conduct of such parties
is determined to have constituted negligence.
(b) No opinion is expressed herein as to (i) Section 8.05 of the Agreement,
(ii) the enforceability of provisions purporting to grant to a party conclusive
rights of determination, (iii) the availability of specific performance or other
equitable remedies, (iv) the enforceability of rights to indemnity under federal
or state securities laws or (v) the enforceability of waivers by parties of
their respective rights and remedies under law.
(c) No opinion is expressed herein as to provisions, if any, in the
Agreement, which (A) purport to excuse, release or exculpate a party for
liability for or indemnify a party against the consequences of its own acts, (B)
purport to make void any act done in contravention thereof, (C) purport to
authorize a party to make binding determinations in its sole discretion, (D)
relate to the effects of laws which may be enacted in the future, (E) require
waivers, consents or amendments to be made only in writing, (F) purport to waive
rights of offset or to create rights of set off other than as provided by
statute, or (G) purport to permit acceleration of indebtedness and the exercise
of remedies by reason of the occurrence of an immaterial breach of the Agreement
or any related document. Further, we express no opinion as to the necessity for
any Lender, by reason of such Lender's particular circumstances, to qualify to
transact business in the State of New York or as to any Lender's liability for
taxes in any jurisdiction.
The foregoing opinion is solely for your benefit and may not be relied upon
by any other Person other than (i) any other Person that may become a Lender
under the Agreement after the date hereof in accordance with the provisions
thereof and (ii) King & Spalding LLP, in connection with its opinion delivered
on the date hereof under Section 3.01 of the Agreement.
Very truly yours,
EXHIBIT D-2
FORM OF OPINION OF ASSOCIATE GENERAL COUNSEL
OF PROGRESS ENERGY SERVICE COMPANY, LLC
[Date]
To each of the Lenders parties to the
Agreement referred to below and
Bank of America, N.A.
as Administrative Agent
Re: Florida Power Corporation d/b/a Progress Energy Florida, Inc.
Ladies and Gentlemen:
This opinion is furnished to you by me as Associate General Counsel of
Progress Energy Service Company, LLC and in my capacity as counsel to Florida
Power Corporation d/b/a Progress Energy Florida, Inc. (the "Borrower") pursuant
to Section 3.01(a)(viii) of the five-year Credit Agreement, dated as of March
28, 2005 (the "Agreement", the terms defined therein being used herein as
therein defined), among the Borrower, certain lenders thereunder (the "Lenders")
and Bank of America, N.A., as administrative agent for the Lenders.
In connection with the preparation, execution and delivery of the
Agreement, I have examined:
(1) The Agreement.
(2) The documents furnished by the Borrower pursuant to Section 3.01 of the
Agreement.
(3) The Restated Charter of the Borrower (the "Charter").
(4) The Bylaws of the Borrower and all amendments thereto (the "Bylaws").
(5) The FPSC Order.
I have also examined the originals, or copies of such other corporate
records of the Borrower, certificates of public officials and of officers of the
Borrower and agreements, instruments and other documents as I have deemed
necessary as a basis for the opinions expressed below. As to questions of fact
material to such opinions, I have, when relevant facts were not independently
established by me, relied upon certificates of the Borrower or its officers or
of public officials. I have assumed the authenticity of all documents submitted
to me as originals, the conformity to originals of all documents submitted as
certified or photostatic copies and the authenticity of signatures (other than
those of the Borrower), and the due execution and delivery, pursuant to due
authorization, of the Agreement by the Lenders and the Administrative Agent and
the validity and binding effect thereof on such parties. For purposes of my
opinions expressed in paragraph 1 below as to existence and good standing, I
have relied as of their respective dates on certificates of public officials,
copies of which are attached hereto as Exhibit A. Whenever the phrase "to my
knowledge" is used in this opinion it refers to my actual knowledge and the
actual knowledge of the attorneys who work under my supervision and who were
involved in the representation of the Borrower in connection with the
transactions contemplated by the Agreement.
I or attorneys working under my supervision are qualified to practice law
in the State of Florida, and the opinions expressed herein are limited to the
law of the State of Florida and the federal law of the United States.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the following opinion:
1. The Borrower is a corporation duly organized, validly existing and in
good standing under the laws of the State of Florida. The Borrower has the
corporate power and authority to enter into the transactions contemplated by the
Agreement.
2. The execution, delivery and performance of the Agreement by the Borrower
have been duly authorized by all necessary corporate action on the part of the
Borrower and the Agreement has been duly executed and delivered by the Borrower.
3. The execution, delivery and performance of the Agreement by the Borrower
will not (i) violate the Charter or the Bylaws or any law, rule or regulation
applicable to the Borrower (including, without limitation, Regulation X of the
Board of Governors of the Federal Reserve System) or (ii) result in a breach of,
or constitute a default under, any judgment, decree or order binding on the
Borrower, or any indenture, mortgage, contract or other instrument to which it
is a party or by which it is bound.
4. No authorization, approval or other action by, and no notice to or
filing with any governmental authority or regulatory body is required for the
due execution, delivery and performance by the Borrower of the Agreement, other
than the FPSC Order, which has been duly issued and is in full force and effect.
All periods for review and approval of the FPSC Order have expired, and no such
request for review or appeal thereof has been filed or is pending.
5. To my knowledge, except as described in the reports and registration
statements that the Borrower has filed with the Securities and Exchange
Commission, there are no pending or overtly threatened actions or proceedings
against the Borrower or any of its Subsidiaries before any court, governmental
agency or arbitrator, that purport to affect the legality, validity, binding
effect or enforceability of the Agreement or that are likely to have a material
adverse effect upon the financial condition, operations or properties of the
Borrower or any of its Subsidiaries.
The opinions set forth above are subject to the qualification that, except
as provided in paragraph 4 above, no opinion is expressed herein as to the
enforceability of the Agreement or any other document.
The foregoing opinions are solely for your benefit and may not be relied
upon by any other Person other than (i) any other Person that may become a
Lender under the Agreement after the date hereof and (ii) Hunton & Xxxxxxxx and
Xxxx & Xxxxxxxx LLP, in connection with their respective opinions delivered on
the date hereof under Section 3.01 of the Agreement.
Very truly yours,
EXHIBIT E
FORM OF OPINION OF COUNSEL
TO THE ADMINISTRATIVE AGENT
[DATE]
----------------------------------------------------------------
To Bank of America, N.A., as Administrative Agent for the
Lenders referred to below, and to each of the Lenders parties
to the five-year Credit Agreement, dated as of March 28, 2005,
among Florida Power Corporation d/b/a Progress Energy Florida,
Inc., said Lenders and Bank of America, as Administrative Agent
----------------------------------------------------------------
Re: Florida Power Corporation d/b/a Progress Energy Florida, Inc.
Ladies and Gentlemen:
We have acted as your counsel in connection with the preparation, execution
and delivery of, and the closing on March 28, 2005 under, the five-year Credit
Agreement, dated as of March 28, 2005 (the "Credit Agreement"), among Florida
Power Corporation d/b/a Progress Energy Florida, Inc. (the "Company"), the
Lenders from time to time parties thereto and Bank of America, N.A., as
Administrative Agent for the Lenders. Terms defined in the Credit Agreement are
used herein as therein defined.
In this connection, we have examined the following documents:
1. a counterpart of the Credit Agreement, executed by the parties thereto;
2. the documents furnished by or on behalf of the Company pursuant to
subsections (i) through (vi) and (viii) of Section 3.01(a) of the Credit
Agreement, including, without limitation, the opinion of the General Counsel to
the Company and the opinion of Hunton & Xxxxxxxx, counsel to the Company (the
"Company Opinions").
In our examination of the documents referred to above, we have assumed the
authenticity of all such documents submitted to us as originals, the genuineness
of all signatures, the due authority of the parties executing such documents and
the conformity to the originals of all such documents submitted to us as copies.
We have also assumed that you have independently evaluated, and are satisfied
with, the creditworthiness of the Company and the business terms reflected in
the Credit Agreement. We have relied, as to factual matters, on the documents we
have examined.
To the extent that our opinions expressed below involve conclusions as to
matters governed by law other than the law of the State of New York, we have
relied upon the Company Opinions and have assumed without independent
investigation the correctness of the matters set forth therein, our opinions
expressed below being subject to the assumptions, qualifications and limitations
set forth in the Company Opinions.
Based upon and subject to the foregoing, and subject to the qualifications
set forth below, we are of the opinion that the Credit Agreement is the legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms.
Our opinion is subject to the following qualifications:
(a) The enforceability of the Company's obligations under the Credit
Agreement is subject to the effect of any applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or similar law affecting
creditors' rights generally.
(b) The enforceability of the Company's obligations under the Credit
Agreement is subject to the effect of general principles of equity, including
(without limitation) concepts of materiality, reasonableness, good faith and
fair dealing (regardless of whether considered in a proceeding in equity or at
law). Such principles of equity are of general application, and, in applying
such principles, a court, among other things, might not allow a contracting
party to exercise remedies in respect of a default deemed immaterial, or might
decline to order an obligor to perform covenants.
(c) We note further that, in addition to the application of equitable
principles described above, courts have imposed an obligation on contracting
parties to act reasonably and in good faith in the exercise of their contractual
rights and remedies, and may also apply public policy considerations in limiting
the right of parties seeking to obtain indemnification under circumstances where
the conduct of such parties is determined to have constituted negligence.
(d) We express no opinion herein as to (i) the enforceability of Section
8.05 of the Credit Agreement, (ii) the enforceability of provisions purporting
to grant to a party conclusive rights of determination, (iii) the availability
of specific performance or other equitable remedies, (iv) the enforceability of
rights to indemnity under federal or state securities laws or (v) the
enforceability of waivers by parties of their respective rights and remedies
under law.
(e) Our opinions expressed above are limited to the law of the State of New
York, and we do not express any opinion herein concerning any other law.
The foregoing opinion is solely for your benefit and may not be relied upon
by any other person or entity.
Very truly yours,
MEO:[VS]:etw
Schedule 8.07
PROCESSING AND RECORDATION FEES
The Administrative Agent will charge a processing and recordation fee (an
"Assignment Fee") in the amount of $2,500 for each assignment; provided,
however, that in the event of two or more concurrent assignments to members of
the same Assignee Group (which may be effected by a suballocation of an assigned
amount among members of such Assignee Group) or two or more concurrent
assignments by members of the same Assignee Group to a single Eligible Assignee
(or to an Eligible Assignee and members of its Assignee Group), the Assignment
Fee will be $2,500 plus the amount set forth below:
----------------------------------------------- -------------------
Transaction: Assignment Fee:
----------------------------------------------- -------------------
First four concurrent assignments or -0-
suballocations to members of an Assignee
Group (or from members of an Assignee Group,
as applicable)
----------------------------------------------- -------------------
Each additional concurrent assignment or $500
suballocation to a member of such Assignee
Group (or from a member of such Assignee
Group, as applicable)
----------------------------------------------- -------------------
For purposes hereof, "Assignee Group" means two or more Eligible Assignees that
are Affiliates of one another or two or more Approved Funds managed by the same
investment advisor.
