AMENDMENT Dated as of May 3, 2006
Exhibit
10(d)
AMENDMENT
Dated
as
of May 3, 2006
To
the
Lenders parties to the Credit Agreement
referred
to below
Ladies
and Gentlemen:
Reference
is made to the Credit Agreement, dated as of March 28, 2005 (the
“Credit
Agreement”),
among
Carolina Power & Light Company d/b/a Progress Energy Carolinas, Inc. (the
“Company”),
the
Lenders and Wachovia Bank, N.A., as Administrative Agent (the “Administrative
Agent”).
Capitalized
terms used herein and not otherwise defined herein have the meanings given
such
terms in the Credit Agreement. The Company has requested, and the Lenders have
agreed, that the Credit Agreement be amended as provided below.
Section
1. Amendments.
The
parties agree that, subject to the satisfaction of the conditions precedent
to
effectiveness set forth below, the Credit Agreement is, as of the date hereof,
hereby amended as follows:
(a)
The
following definitions in Section 1.01 are amended and restated in their entirety
to read as follows:
““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
Pricing
|
LEVEL
1
If
the Reference Securities are rated at least A- by S&P or at least A3
by Xxxxx’x
|
LEVEL
2
If
the Reference Securities are rated lower than Level 1 but at least
BBB+ by
S&P or at least Baa1 by Xxxxx’x
|
LEVEL
3
If
the Reference Securities are rated lower than Level 2 but at least
BBB by
S&P or at least Baa2 by Xxxxx’x
|
LEVEL
4
If
the Reference Securities are rated lower than Level 3 but at least
BBB- by
S&P or at least Baa3 by Xxxxx’x
|
LEVEL
5
If
the Reference Securities are rated lower than Level 4 or
unrated
|
|
Eurodollar
Rate
|
0.230%
|
0.270%
|
0.350%
|
0.475%
|
0.575%
|
|
Base
Rate
|
0.0%
|
0.0%
|
0.0%
|
0.0%
|
0.0%
|
The
Applicable Margin will increase by 0.050% at Levels 1 and 2, by 0.100% at Levels
3 and 4 and by 0.125% at Level 5 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, unless one of the ratings is below BBB- or
Baa3,
or (ii) the ratings differential is two or more categories or one of the ratings
is below BBB- or Baa3, the rating that is one below the higher of the two
ratings shall control.”
““Termination
Date”
means,
with respect to any Lender, the earlier to occur of (i) June 28, 2010, subject
to extension to a later date for such Lender pursuant to Section 2.16, and
(ii)
the date of termination in whole of the Commitments pursuant to Section 2.04
or
6.01.”
(b)
The
following new definitions are inserted in Section 1.01 in appropriate alphabetic
order:
““Additional
Commitment Lender”
has
the
meaning specified in Section 2.16(b).”
““Anniversary
Date”
has
the
meaning specified in Section 2.16(a).”
““Current
Termination Date”
has
the
meaning specified in Section 2.16(a).”
““Declining
Lender”
has
the
meaning specified in Section 2.16(a).”
(c)
Section
2.03 is amended and restated in its entirety to read as follows:
“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
If
the Reference Securities are rated at least A- by S&P or at least A3
by Xxxxx’x
|
LEVEL
2
If
the Reference Securities are rated lower than Level 1 but at least
BBB+ by
S&P or at least Baa1 by Xxxxx’x
|
LEVEL
3
If
the Reference Securities are rated lower than Level 2 but at least
BBB by
S&P or at least Baa2 by Xxxxx’x
|
LEVEL
4
If
the Reference Securities are rated lower than Level 3 but at least
BBB- by
S&P or at least Baa3 by Xxxxx’x
|
LEVEL
5
If
the Reference Securities are rated lower than Level 4 or
unrated
|
|
Facility
Fee
|
0.070%
|
0.080%
|
0.100%
|
0.125%
|
0.175%
|
The
facility fee rate 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
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, unless one of the ratings is below BBB- or
Baa3,
or (ii) the ratings differential is two or more categories or one of the ratings
is below BBB- or Baa3, the rating that is one below the higher of the two
ratings shall control.”
(d)
The
third sentence of Section 2.14(a) is amended and restated in its entirety to
read as follows:
“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, 2.12 or 2.16(b)) 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.”
(e)
The
following is added
as a new
Section 2.16:
“SECTION
2.16. Extension of Termination Date.
(a) So
long
as no Event of Default shall have occurred and be continuing and the Termination
Date shall not have occurred, then at least 30 days but not more than 60 days
prior to each of the second and third anniversaries of the date hereof (each,
an
“Anniversary
Date”),
the
Company may request that the Lenders, by written notice to the Administrative
Agent (in substantially the form attached hereto as Exhibit F) with a copy
to
the Arrangers, consent to a one-year extension of the Termination Date. Each
Lender shall, in its sole discretion, determine whether to consent to such
request and shall notify the Administrative Agent of its determination at least
20 days prior to the applicable Anniversary Date. The failure to respond by
any
Lender within such time period shall be deemed a denial of such request. The
Administrative Agent shall deliver a notice to the Company and the Lenders
at
least 15 days prior to such Anniversary Date of the identity of the Lenders
that
have consented to such extension and the Lenders that have declined such consent
(the “Declining
Lenders”).
If
Lenders holding in the aggregate 50% or less of the Commitments have consented
to the requested extension, the Termination Date shall not be extended, and
the
Commitments of all Lenders shall terminate on the then current Termination
Date
(the “Current
Termination Date”).
(b) If
Lenders holding in the aggregate more than 50% of the Commitments have consented
to the requested extension, subject to the conditions set forth in Section
2.16(c), the Termination Date shall be extended as to such consenting Lenders
only (and not as to any Declining Lender) for a period of one year following
the
Current Termination Date. Unless assigned to another Lender as set forth below,
the commitments of the Declining Lenders shall terminate on such Current
Termination Date, all Advances of and other amounts payable to such Declining
Lenders shall be repaid to them on such Current Termination Date, and such
Declining Lenders shall have no further liability as of such Current Termination
Date. The Company shall have the right at any time on or before the applicable
Anniversary Date to replace each Declining Lender with, and add as “Lenders”
under this Agreement in place thereof, one or more Eligible Assignees (each,
an
“Additional
Commitment Lender”)
as
provided in Section 8.07(f), each of which Additional Commitment Lenders shall
have entered into an Assignment and Acceptance pursuant to which each such
Additional Commitment Lender shall, effective as of such Anniversary Date,
assume a Commitment (and, if any such Additional Commitment Lender is already
a
Lender, its Commitment shall be in addition to such Lender’s Commitment
hereunder on such date) and accept as such Additional Lender’s Termination Date
with respect to the Commitment so assumed the latest date to which the
Termination Date has been extended pursuant to this Section 2.16.
(c) Any
extension of the Termination Date pursuant to this Section 2.16 shall become
effective upon the applicable Anniversary Date if the Company shall have
delivered to the Administrative Agent and each Lender, on or prior to such
Anniversary Date, (i) opinions of counsel to the Company substantially in
the forms of Exhibits D-3 and D-4 attached hereto upon which each Lender and
the
Administrative Agent may rely, together with any governmental order referred
to
therein attached thereto and (ii) a certificate of a duly authorized
officer of the Company (the statements contained in which shall be true) to
the
effect that (x) the representations and warranties contained in Section 4.01
are
correct on and as of such Anniversary Date before and after giving effect to
the
extension of the Termination Date, as though made on and as of such Anniversary
Date, and (y) no event has occurred and is continuing, or would result from
such
extension of the Termination Date, that constitutes an Event of Default or
that
would constitute an Event of Default but for the requirement that notice be
given or time elapse, or both.
(d) Upon
the
extension of any Termination Date in accordance with this Section 2.16, the
Administrative Agent shall deliver to each Lender a revised Schedule II setting
forth the Commitment of each Lender after giving effect to such extension,
and
such Schedule II shall replace the Schedule II in effect before the applicable
Anniversary Date.”
(f)
The
first sentence of Section 8.07(f) is amended and restated in its entirety to
read as follows:
“If
(x)
any Lender shall be a Declining Lender, (y) any Lender or any Participant shall
make any demand for payment under Section 2.12 or (z) 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 the time
period specified in Section 2.16(b) or within 30 days after such demand for
any
such payment (if, but only if, such demanded payment has been made by the
Company) (as applicable), 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), 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 no later than the applicable
Anniversary Date or 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 (as applicable),
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; (v) in the case of any such
assignment by a Declining Lender, such Declining Lender shall have consented
to
such assignment, and (vi) such assignment does not conflict with applicable
laws.”
(g)
Schedule II is amended and restated in its entirety to read as the attached
Schedule I hereto.
(h) The
attached Exhibit A-1 and Exhibit A-2 hereto are added as “Exhibit D-3” and
“Exhibit D-4”, respectively, to the Credit Agreement.
(i) The
attached Exhibit B hereto is added as “Exhibit F” to the Credit
Agreement.
Section
2. Conditions to Effectiveness.
Section
1 of this Amendment shall be effective as of the date hereof when and if (i)
the
Company and the Lenders shall have executed and delivered to the Administrative
Agent executed counterparts of this Amendment, and (ii) the representations
and
warranties of the Company set forth in Section 3 below shall
be
true and correct on and as of such date of effectiveness as though made on
and
as of such date.
Section
3. Representations and Warranties. The
Company represents and warrants that (i) the representations and warranties
contained in Article IV of the Credit Agreement, as amended hereby (with each
reference therein to “this Agreement”, “hereunder” and words of like import
referring to the Credit Agreement being deemed to be a reference to this
Amendment and the Credit Agreement, as amended hereby), are true and correct
on
and as of the date hereof as though made on and as of such date, and (ii) no
event has occurred and is continuing, or would result from the execution and
delivery of this Amendment, that constitutes an Event of Default.
Section
4. Effect on the Credit Agreement.
The
execution, delivery and effectiveness of this Amendment shall not operate as
a
waiver of any right, power or remedy of any Lender or the Administrative Agent
under the Credit Agreement, nor constitute a waiver of any provision of any
of
the Credit Agreement. Except as expressly amended above, the Credit Agreement
is
and shall
continue to be in full force and effect and is hereby in all respects ratified
and confirmed.
This
Amendment shall be binding on the parties hereto and their respective successors
and permitted assigns under the Credit Agreement.
Section
5. Costs, Expenses and Taxes. The
Company agrees to pay on demand all costs and expenses of the Administrative
Agent in connection with the preparation, execution and delivery of this
Amendment and any other instruments and documents to be delivered hereunder,
including, without limitation, the reasonable fees and out-of-pocket expenses
of
counsel for the Administrative Agent with respect thereto, and all costs and
expenses (including, without limitation, counsel fees and expenses), if any,
in
connection with the enforcement (whether through negotiations, legal proceedings
or otherwise) of this Amendment or such other instruments and documents. In
addition, the Company agrees to pay any and all stamp and other taxes payable
or
determined to be payable in connection with the execution and delivery of this
Amendment and any other instruments and documents to be delivered hereunder,
and
agree jointly and severally to save the Lenders and the Administrative Agent
harmless from and against any and all liabilities with respect to or resulting
from any delay in paying or omission to pay such taxes.
Section
6. Counterparts.
This
Amendment may be executed in any number of counterparts and by any combination
of the parties hereto in separate counterparts, each of which counterparts
shall
constitute an original, and all of which taken together shall constitute one
and
the same instrument.
Section
7. Governing Law.
This
Amendment shall be governed by, and construed in accordance with, the laws
of
the State of New York.
[Remainder
of page intentionally left blank]
If
you
consent and agree to the foregoing, please evidence such consent and agreement
by executing and faxing one copy, and returning six counterparts, of this
Amendment to King & Spalding LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxx Xxxxxxxxx (fax no. 000-000-0000) no later than
5:00 p.m., New York City time, on May 3, 2006.
Very
truly yours,
CAROLINA
POWER & LIGHT COMPANY d/b/a
PROGRESS ENERGY CAROLINAS, INC.
By
/s/
Xxxxxx X. Xxxxxxxx
Xxxxxx
X.
Xxxxxxxx
Treasurer
SIGNATURE
PAGE TO AMENDMENT TO 2005 PROGRESS CAROLINAS CREDIT AGREEMENT
The
undersigned hereby consent
and
agree
to the foregoing:
WACHOVIA
BANK, N.A.,
as
Administrative Agent and Lender
By_______________________________
Name:
Title:
SIGNATURE
PAGE TO AMENDMENT TO 2005 PROGRESS CAROLINAS CREDIT AGREEMENT
3
THE
ROYAL
BANK OF SCOTLAND PLC,
as
Lender
By_______________________________
Name:
Title:
SIGNATURE
PAGE TO AMENDMENT TO 2005 PROGRESS CAROLINAS CREDIT AGREEMENT
THE
BANK
OF NEW YORK, as Lender
By_______________________________
Name:
Title:
SIGNATURE
PAGE TO AMENDMENT TO 2005 PROGRESS CAROLINAS CREDIT AGREEMENT
CITIBANK,
N.A., as Lender
By_______________________________
Name:
Title:
SIGNATURE
PAGE TO AMENDMENT TO 2005 PROGRESS CAROLINAS CREDIT AGREEMENT
MELLON
BANK, N.A., as Lender
By_______________________________
Name:
Title:
SIGNATURE
PAGE TO AMENDMENT TO 2005 PROGRESS CAROLINAS CREDIT AGREEMENT
JPMORGAN
CHASE BANK, N.A., as Lender
By_______________________________
Name:
Title:
SIGNATURE
PAGE TO AMENDMENT TO 2005 PROGRESS CAROLINAS CREDIT AGREEMENT
BANK
OF
AMERICA, N.A., as Lender
By_______________________________
Name:
Title:
SIGNATURE
PAGE TO AMENDMENT TO 2005 PROGRESS CAROLINAS CREDIT AGREEMENT
THE
BANK
OF TOKYO-MITSUBISHI UFJ, LTD.,
NEW
YORK
BRANCH (as successor-by-merger
to
UFJ
BANK LIMITED), as Lender
By_______________________________
Name:
Title:
SIGNATURE
PAGE TO AMENDMENT TO 2005 PROGRESS CAROLINAS CREDIT AGREEMENT
SUNTRUST
BANK, as Lender
By_______________________________
Name:
Title:
SIGNATURE
PAGE TO AMENDMENT TO 2005 PROGRESS CAROLINAS CREDIT AGREEMENT
BARCLAYS
BANK PLC, as Lender
By_______________________________
Name:
Title:
SIGNATURE
PAGE TO AMENDMENT TO 2005 PROGRESS CAROLINAS CREDIT AGREEMENT
3
SCHEDULE
I
SCHEDULE
II
Commitments
|
Lender
|
Commitment
|
Domestic
Lending Office
|
Eurodollar
Lending Office
|
|
Wachovia
Bank, N.A.
|
$
82,500,000
|
000
Xxxxx Xxxxxxx Xxxxxx
Mail
Code: CP-8, XX0000
Xxxxxxxxx,
XX 00000-0000
Attention:
Xxxx Xxxxxxxxxx
Telephone:
000-000-0000
Telecopier:
000-000-0000/0835
E-Mail:xxxxxxx.xxxxxxxxxx@xxxxxxxx.xxx
|
Same
as Domestic Lending Office
|
|
The
Royal Bank of Scotland plc
|
$
77,000,000
|
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
Li Yao
Telephone:
000.000.0000
Telecopier:
212.401.1494
E-Mail:
XxXxx.Xx@xxxx.xxx
|
Same
as Domestic Lending Office
|
|
Citibank,
N.A.
|
$
49,000,000
|
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxxx Xxxx
Telephone:
212.816-8553
Telecopier:
212.816-8098
Email:
xxxxxx.x.xxxx@xxxxxxxxx.xxx
|
Same
as Domestic Lending Office
|
|
Bank
of Tokyo- Mitsubishi Trust Company
|
$
45,000,000
|
BTM
Information Services, Inc.
c/o
The Bank of Tokyo-Mitsubishi, Ltd., NY 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
|
Same
as Domestic Lending Office
|
|
The
Bank of New York
|
$
45,000,000
|
Xxx
Xxxx Xxxxxx
00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxx Xx, Energy Division
Telephone:
000.000.0000
Telecopier:
212.635.7552
Email:
xxx@xxxxxxxx.xxx
|
Same
as Domestic Lending Office
|
|
Mellon
Bank, N.A.
|
$
45,000,000
|
000
Xxxxxxx Xxxx Xxxxx
Xxxx
000-0000
Xxxxxxxxxx,
XX 00000-0000
Attention:
Xxxxx Xxxxx, Loan Administrator
Telephone:
000.000.0000
Telecopier:
412.209.6117
Email:
N/A
|
Same
as Domestic Lending Office
|
|
JPMorgan
Chase Bank, N.A.
|
$
44,000,000
|
0000
Xxxxxx - 00
Xxxxxxx,
XX 00000
Attention:
Xxxxx Xxxxxxx, Account Manager
Telephone:
000.000.0000
Telecopier:
713.427.6307
Email:
xxxxx.xxxxxxx@xxxxxxxx.xxx
|
Same
as Domestic Lending Office
|
|
Bank
of America, N.A.
|
$
22,000,000
|
000
Xxxx Xxxxxx, 00xx Xx.
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
|
Same
as Domestic Lending Office
|
|
Barclays
Bank PLC
|
$
20,500,000
|
Barclays
Capital Services, LLC
000
Xxxxx Xxxxxx Xxxx
Xxxxxxxx,
XX 00000
Attention:
Xxxx Xxxxxxx
Telephone:
000.000.0000
Telecopier:
973.576.3014
Email:
xxxx.xxxxxxx@xxxxxx.xxx
|
Same
as Domestic Lending Office
|
|
SunTrust
Bank
|
$
20,000,000
|
SunTrust
Bank
Mail
Code 1929
000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx,
XX 00000
Attn:
Xxxx Xxxxx Xxxxxxx
Telephone:
000-000-0000
Telecopier:
000-000-0000
Email:
xxxxxxxxx.xxxxxxx@xxxxxxxx.xxx
|
Same
as Domestic Lending Office
|
|
Total:
|
$450,000,000
|
EXHIBIT
X-0
XXXXXXX
X-0
FORM
OF OPINION OF GENERAL COUNSEL TO THE BORROWER UPON EXTENSION OF THE TERMINATION
DATE
___________
___, 20__
To
each
of the Lenders parties to the Credit Agreement referred to below and to Wachovia
Bank, N.A., as Administrative Agent
Re:
Carolina Power & Light Company d/b/a Progress Energy Carolinas,
Inc.
Ladies
and Gentlemen:
This
opinion is furnished to you by me as Vice President (Legal) of Progress Energy
Service Company, LLC and in my capacity as counsel to Carolina Power & Light
Company d/b/a Progress Energy Carolinas, Inc. (the “Borrower”)
in
connection with the extension of the Termination Date until ________ __, _____
under Section 2.16 (the “Extension”)
of the
Credit Agreement, dated as of March 28, 2005, as amended, (the “Credit
Agreement”,
the
terms defined therein being used herein as therein defined), among the Borrower,
certain lenders from time to time parties thereto (the “Lenders”)
and
Wachovia Bank, N.A., as Administrative Agent for the Lenders.
In
connection with the Extension, I have examined:
(1) The
Credit Agreement.
(2) The
documents furnished by the Borrower pursuant to Section 3.01 of the Credit
Agreement.
(3) The
Request for Extension of Termination Date and Certificate, dated _____,
submitted by the Borrower in connection with the Extension.
(4) The
Restated Charter of the Borrower and all amendments thereto (the “Charter”).
(5) The
By-Laws of the Borrower and all amendments thereto (the “By-Laws”).
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 the signatures (other than those
of
the Borrower), and the due execution and delivery, pursuant to due
authorization, of the Credit 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 Credit Agreement.
I
or
attorneys working under my supervision are qualified to practice law in the
State of North Carolina and the opinions expressed herein are limited to the
law
of the State of North Carolina, the Federal law of the United States and, in
reliance on a certificate issued by the Secretary of State of South Carolina
and
attached hereto as part of Exhibit A, the laws of the State of South Carolina
for purposes of the first sentence of opinion paragraph 1 below.
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 North Carolina, and is duly qualified to do
business and in good standing in the State of South Carolina.
2. The
execution, delivery and performance by the Borrower of the Credit Agreement,
after giving effect to the Extension, are within the Borrower’s corporate
powers, have been duly authorized by all necessary corporate action, and do
not
violate (i) the Charter or the By-Laws 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 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. The Credit Agreement has been duly executed
and delivered on behalf of the Borrower.
3. 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 Credit Agreement, after giving
effect to the Extension, other than a notification to the North Carolina
Utilities Commission, which has been timely made.
4. 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 the Subsidiaries before any court, governmental agency or arbitrator, that
may materially adversely affect the financial condition, operations or
properties of the Borrower and its Subsidiaries, taken as a whole.
The
opinions set forth above are subject to the qualification that no opinion is
expressed herein as to the enforceability of the Credit 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 any other Person that may become a Lender under the
Credit Agreement after the date hereof and Hunton & Xxxxxxxx LLP, in
connection with their opinion delivered on the date hereof under Section 2.16(c)
of the Credit Agreement. This letter speaks only as of the date hereof and
may
not be relied on by any person with respect to any date after the date hereof.
I
do not undertake to advise you of any changes in the opinions expressed herein
from matters that may hereafter arise or be brought to my
attention.
Very
truly yours,
EXHIBIT
X-0
XXXXXXX
X-0
FORM
OF OPINION OF SPECIAL COUNSEL TO THE BORROWER UPON EXTENSION OF THE TERMINATION
DATE
___________
___, 20__
To
each
of the Lenders parties to the Credit Agreement referred to below and to Wachovia
Bank, N.A., as Administrative Agent
Re:
Carolina Power & Light Company d/b/a Progress Energy Carolinas,
Inc.
Ladies
and Gentlemen:
This
opinion is furnished to you by us as counsel for Carolina Power & Light
Company d/b/a Progress Energy Carolinas, Inc. (the “Borrower”)
in
connection with the extension of the Termination Date until June [ ], 20___
under Section 2.16 (the “Extension”)
of the
Credit Agreement, dated as of March 28, 2005, as amended, (the “Credit
Agreement”,
the
terms defined therein being used herein as therein defined), among the Borrower,
certain lenders from time to time parties thereto (the “Lenders”)
and
Wachovia Bank, N.A., as Administrative Agent for the Lenders.
In
connection with the Extension, we have examined:
(1) The
Credit Agreement.
(2) The
documents furnished by the Borrower pursuant to Section 3.01 of the Credit
Agreement.
(3) The
Request for Extension of Termination Date and Certificate, dated _____,
submitted by the Borrower in connection with the Extension.
(4) The
opinion letter of even date herewith, addressed to you by __________, counsel
to
the Borrower and delivered in connection with the transactions contemplated
by
the Credit Agreement (the “Borrower
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 Credit 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 North Carolina and New York, and
the
opinions expressed herein are limited to the law of the States of North Carolina
and New York applicable to public utilities 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 Borrower Opinion Letter, we have
relied without independent investigation on the accuracy of the opinions
expressed in the Borrower Opinion Letter, subject to the assumptions,
qualifications and limitations set forth in the Borrower Opinion
Letter.
Based
upon the foregoing and upon such investigation as we have deemed necessary,
we
are of the following opinion the Credit Agreement after giving effect to the
Extension constitutes the 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 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.
(c) No
opinion is expressed herein as to provisions, if any, in the Credit 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 Credit 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 any other Person that may become a Lender under the
Credit Agreement after the date hereof in accordance with the provisions
thereof. This letter speaks only as of the date hereof and may not be relied
on
by any person with respect to any date after the date hereof. We do not
undertake to advise you of any changes in the opinions expressed herein from
matters that may hereafter arise or be brought to our attention.
Very
truly yours,
EXHIBIT
B
EXHIBIT
F
FORM
OF REQUEST FOR EXTENSION OF
THE
TERMINATION DATE
CREDIT
AGREEMENT
Dated
as of March 28, 2005
___________________________________
CAROLINA
POWER & LIGHT COMPANY d/b/a PROGRESS ENERGY CAROLINAS, INC.
(Company)
and
THE
BANKS
LISTED ON THE SIGNATURE PAGES HEREOF
(Banks)
and
OTHER
LENDERS FROM TIME TO TIME
PARTY
HERETO
(Lenders)
and
WACHOVIA
BANK, N.A.
(Administrative
Agent)
Request
for Extension of Termination Date
I,
[______________], [_________________] of Progress Energy Carolinas, Inc., do
hereby request that the Termination Date of the Credit Agreement, dated as
of
March 28, 2005, as amended (the “Credit
Agreement”,
the
terms defined therein being used herein as therein defined), among Progress
Energy Carolinas, Inc., certain Lenders from time to time parties thereto and
Wachovia Bank, N.A., as Administrative Agent for the Lenders, be extended for
a
one-year period (hereinafter the “Proposed
Extension”)
pursuant to Section 2.16 of the Credit Agreement and, in connection therewith,
hereby certify as follows:
(i) as
of the
date hereof, the representations and warranties set forth in Section 4.01
(including without limitation those regarding any required approvals of or
notices to governmental bodies) of the Credit Agreement are and will be as
of
the effective date of the Proposed Extension accurate both before and after
giving effect to the Proposed Extension; and
(ii) as
of the
date hereof, no Event of Default has occurred, nor has any event occurred,
that
with the giving of notice or the passage of time or both, would constitute
an
Event of Default, in either case both before and after giving effect to the
Proposed Extension.
Witness
my hand this ______ day of _________, ____.
________________________
[________________]
