Exhibit 10b(8)
EXECUTION COPY
AMENDMENT
Dated as of February 13, 2002
To the Lenders parties to the Credit Agreement
and the Administrative Agent referred to below
Ladies and Gentlemen:
Reference is made to the Three-Year Credit Agreement, dated as of November
13, 2001 (the "Credit Agreement"), among Progress Energy, Inc. (the "Borrower"),
the Lenders parties thereto and Citibank, N.A. ("Citibank"), as Administrative
Agent. Capitalized terms used herein and not otherwise defined herein have the
meanings given such terms in the Credit Agreement. The Borrower hereby requests
that the Credit Agreement be amended, as provided below, so that certain
provisions apply to only the Significant Subsidiaries of the Borrower, rather
than to all Subsidiaries of the Borrower.
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) Subsection (h) of Section 5.01 is amended and restated in its entirety
to read as follows:
"(h) Material Obligations. Pay, and cause each Significant Subsidiary
to pay, promptly as the same shall become due each material obligation of
the Borrower or such Significant Subsidiary."
(b) Subsections (d), (e) and (f) of Section 6.01 of the Credit Agreement
are amended and restated in their entirety to read as follows:
"(d) The Borrower or any Significant Subsidiary shall fail to pay any
amount in respect of any Indebtedness in excess of $10,000,000 (but
excluding Indebtedness hereunder) of the Borrower or such Significant
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 Borrower or any Significant Subsidiary 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 Borrower or any Significant Subsidiary 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 Borrower or any Significant
Subsidiary shall take any corporate action to authorize 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
$10,000,000 shall be rendered against the Borrower or any Significant
Subsidiary 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"
Section 2. Conditions to Effectiveness. Section 1 of this Amendment shall
be effective as of the date hereof when and if (i) the Borrower and the Majority
Lenders shall have executed and delivered to the Administrative Agent executed
counterparts of this Amendment, and (ii) the representations and warranties of
the Borrower 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 Borrower 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.
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Section 4. Effect on the Credit Agreement. If you consent and agree to the
foregoing, please evidence such consent and agreement by executing and returning
six counterparts of this Amendment to King & Xxxxxxxx, 0000 Avenue of the
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxx X. Xxxxxx (fax no.
000-000-0000). 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 4. 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 5. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
Very truly yours,
PROGRESS ENERGY, INC.
By
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Name:
Title:
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The undersigned hereby consent
and agree to the foregoing:
CITIBANK, N.A.
By
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Name:
Title:
4
JPMORGAN CHASE BANK
By
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Name:
Title:
5
BANK ONE, NA
By
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Name:
Title:
6
BANK OF AMERICA, N.A.
By
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Name:
Title:
7
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By
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Name:
Title:
8
WACHOVIA BANK, N.A.
By
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Name:
Title:
9
SUNTRUST BANK
By
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Name:
Title:
10
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By
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Name:
Title:
11
MELLON BANK, N.A.
By
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Name:
Title:
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