CREDIT AGREEMENT Dated as of May 3, 2006 Among PROGRESS ENERGY, INC. (Borrower) and THE BANKS LISTED ON THE SIGNATURE PAGES HEREOF (Banks) and CITIBANK, N.A. (Administrative Agent) and SUNTRUST BANK (Issuing Bank)
Exhibit
10(c)
[CONFORMED
COPY]
Dated
as of May 3, 2006
Among
PROGRESS
ENERGY, INC.
(Borrower)
and
THE
BANKS LISTED ON THE SIGNATURE PAGES HEREOF
(Banks)
and
CITIBANK,
N.A.
(Administrative
Agent)
and
SUNTRUST
BANK
(Issuing
Bank)
CITIGROUP
GLOBAL MARKETS, INC. and
X.X. XXXXXX SECURITIES INC.
(Joint
Lead Arrangers)
JPMORGAN
CHASE BANK, N.A.
(Syndication
Agent)
2
TABLE
OF CONTENTS
Section Page
ARTICLE
I
DEFINITIONS
AND ACCOUNTING TERMS
SECTION
1.01.
Certain
Defined Terms. 1
SECTION
1.02.
Computation of Time Periods. 12
SECTION
1.03.
Accounting Terms. 12
ARTICLE
II
AMOUNTS
AND TERMS OF THE ADVANCES
SECTION
2.01.
The
Advances. 12
SECTION
2.02.
Making
the Advances. 13
SECTION
2.03.
Fees 14
SECTION
2.04.
Reduction and Increase of the
Commitments.
15
SECTION
2.05.
Repayment of Advances.
16
SECTION
2.06.
Interest
on
Advances.
16
SECTION
2.07.
Additional Interest on Eurodollar Rate Advances.
17
SECTION
2.08.
Interest
Rate Determination. 17
SECTION
2.09.
Voluntary Conversion of Advances. 18
SECTION
2.10.
Prepayments of Advances. 19
SECTION
2.11.
Increased Costs.
19
SECTION
2.12.
Illegality. 20
SECTION
2.13.
Payments
and Computations. 21
SECTION
2.14.
Sharing
of Payments, Etc.
22
SECTION
2.15.
Extension of Termination Date.
22
SECTION
2.16.
Letters
of Credit.
23
ARTICLE
III
CONDITIONS
OF LENDING
SECTION
3.01.
Conditions Precedent to
Closing. 28
SECTION
3.02.
Conditions Precedent to Each Borrowing and to the Issuance of Letters of
Credit.
29
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
SECTION
4.01.
Representations and Warranties of the Borrower.
29
ARTICLE
V
COVENANTS
OF THE COMPANY
SECTION
5.01.
Affirmative Covenants.
31
SECTION
5.02.
Negative
Covenants.
34
ARTICLE
VI
EVENTS
OF
DEFAULT
SECTION
6.01.
Events
of Default.
35
ARTICLE
VII
THE
ADMINISTRATIVE AGENT AND THE ISSUING BANKS
SECTION
7.01.
Authorization and Action.
37
SECTION
7.02.
The
Administrative Agent’s Reliance, Etc.
38
SECTION
7.03.
The
Administrative Agent and its Affiliates.
38
SECTION
7.04.
Lender
Credit Decision. 39
SECTION
7.05.
Indemnification.
39
SECTION
7.06.
Successor Administrative Agent.
39
SECTION
7.07.
Appointment and Resignation of Issuing Banks.
40
ARTICLE
VIII
MISCELLANEOUS
SECTION
8.01.
Amendments, Etc. 40
SECTION
8.02.
Notices,
Etc. 41
SECTION
8.03.
No
Waiver; Remedies. 41
SECTION
8.04.
Costs,
Expenses, Taxes and Indemnification. 41
SECTION
8.05.
Right of
Set-off. 44
SECTION
8.06.
Binding
Effect. 45
SECTION
8.07.
Assignments and Participations. 45
SECTION
8.08.
Waiver
of Consequential Damages. 49
SECTION
8.09.
USA
PATRIOT Act Notice. 49
SECTION
8.10.
Tax
Disclosure. 49
SECTION
8.11.
Governing Law. 49
SECTION
8.12. WAIVER OF JURY TRIAL. 50
SECTION
8.13.
Execution in Counterparts. 50
SECTION
8.14.
Severability. 50
SECTION
8.15.
Headings. 50
SECTION
8.16.
Entire
Agreement. 50
SCHEDULES
I - List
of
Commitments and Applicable Lending Offices
II - Adopted
Letters of Credit
EXHIBITS
A-1
- Form
of
Notice of Borrowing
A-2 - Form
of
Notice of Conversion
B
- Form
of
Assignment and Acceptance
C-1 - Form
of
Opinion of General Counsel to Progress Energy Service Company, LLC
C-2 - Form
of
Opinion of Special Counsel for the Borrower
C-3 - Form
of
Opinion of General Counsel to the Borrower upon Extension of the Termination
Date
C-4 - Form
of
Opinion of Special Counsel for the Borrower upon Extension of the Termination
Date
D
- Form
of
Opinion of Counsel for the Administrative Agent
E
- Form
of
Request for Extension of Termination Date
F - Form
of
Compliance Certificate
Dated
as of May 3, 2006
This
CREDIT AGREEMENT (this “Agreement”)
is
made by PROGRESS ENERGY, INC., a North Carolina corporation (the “Borrower”),
the
banks listed on the signature pages hereof (the “Banks”),
CITIBANK, N.A. (“Citibank”),
as
administrative agent (the “Administrative
Agent”)
for the
Lenders (as hereinafter defined) and SUNTRUST BANK, as the initial Issuing
Bank.
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):
“Additional
Commitment Lender”
has
the
meaning assigned to that term in Section 2.15(b).
“Additional
Lender”
shall
have the meaning assigned such term in Section 2.04(b).
“Administrative
Agent”
has
the
meaning specified in the introductory paragraph of this Agreement.
“Advance”
means an
advance by a Lender to the Borrower 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, controls,
is
controlled by, or is under common control with such Person or is a director
or
officer of such Person.
“Anniversary
Date”
has
the
meaning assigned to that term in Section 2.15(a).
“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
for each Type of Advance at all times during which any Applicable Rating Level
set forth below is in effect, the interest rate per
annum
set
forth below next to such Applicable Rating Level:
|
Applicable
Rating Level
|
Applicable
Margin for Eurodollar Rate Advances
|
Applicable
Margin for Base Rate Advances
|
|
1
|
0.230%
|
0%
|
|
2
|
0.270%
|
0%
|
|
3
|
0.350%
|
0%
|
|
4
|
.475%
|
0%
|
|
5
|
.575%
|
0%
|
provided,
that
(i) the
Applicable Margins for Eurodollar Rate Advances set forth above for each
Applicable Rating Level shall increase at any time the aggregate principal
amount of Outstanding Credits is greater than 50% of the aggregate Commitments
by 0.050% at Levels 1 and 2, by 0.100 at Levels 3 and 4 and by 0.125% at Xxxxx
0,
(xx) the
Applicable Margins set forth above for each Applicable Rating Level shall
increase upon the occurrence and during the continuance of any Event of Default
by 2.0%, and
(iii) any
change in the Applicable Margin resulting from a change in the Applicable Rating
Level shall become effective upon the date of announcement of a change in the
Xxxxx’x Rating or the S&P Rating that results in a change in the Applicable
Rating Level.
“Applicable
Rating Level”
at
any
time shall be determined in accordance with the then-applicable S&P Rating
and the then-applicable Xxxxx’x Rating as follows:
|
S&P
Rating/Xxxxx’x Rating
|
Applicable
Rating Level
|
|
A_
or
higher or A3 or higher
|
1
|
|
BBB+
or Baa1
|
2
|
|
BBB
or Baa2
|
3
|
|
BBB_
or
Baa3
|
4
|
|
lower
than Level 4 or unrated
|
5
|
In
the
event that the S&P Rating and the Xxxxx’x Rating are not at the same
Applicable Rating Level but differ by only one Applicable Rating Level, then
the
higher of the two ratings shall determine the Applicable Rating Level, unless
the S&P Rating is below BBB- or the Xxxxx’x Rating is below Baa3. In the
event that the S&P Rating and the Xxxxx’x Rating differ by more than one
Applicable Rating Level or the S & P Rating is below BBB- or the Xxxxx’x
Rating is below Baa3, then the Applicable Rating Level immediately below the
higher of the two ratings shall be the Applicable Rating Level. The Applicable
Rating Level shall be redetermined on the date of announcement of a change
in
the S&P Rating or the Xxxxx’x Rating.
“Arrangers”
means
Citigroup Global Markets, Inc. and X.X. Xxxxxx Securities Inc.
“Assignment
and Acceptance”
means
an assignment and acceptance entered into by a Lender and an Eligible Assignee,
and accepted by the Administrative Agent, in substantially the form of Exhibit
B
hereto.
“Banks”
has
the
meaning specified in the introductory paragraph of this Agreement.
“Base
Rate”
means,
for any Interest Period or any other 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 Citibank in New York, New York, from time
to
time, as Citibank’s base rate;
and
(ii) 1/2
of
one percent per
annum
above
the Federal
Funds
Rate in effect from time to time.
“Base
Rate Advance”
means
an Advance that bears interest as provided in Section 2.06(a).
“Borrower”
has
the
meaning specified in the introductory paragraph of this Agreement.
“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 2.08
or
2.09.
“Business
Day”
means a
day of the year on which banks are not required or authorized to close at the
principal office of any Lender 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 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 the Borrower (or other securities
convertible into such securities) representing 30% or more of the combined
voting power of all securities of the Borrower entitled to vote in the election
of directors.
“Citibank”
has
the
meaning specified in the introductory paragraph of this Agreement.
“Commitment”
has the
meaning specified in Section 2.01.
“Commitment
Increase”
shall
have the meaning assigned such term in Section 2.04(b).
“Commitment
Increase Approvals”
means
any governmental approval, resolution of the Board of Directors of the Borrower
or resolution of the Board of Directors of any Subsidiary not obtained by or
on
behalf of the Borrower or such Subsidiary, as applicable, and in full force
and
effect on the date hereof, which governmental approval or resolution is required
to be obtained in order to authorize the Commitment Increase and the performance
by the Borrower and the Subsidiaries of their respective obligations under
this
Agreement after giving effect to the Commitment Increase.
“Consolidated”
refers
to the consolidation of the accounts of the Borrower and its Subsidiaries in
accordance with GAAP.
“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 2.08(g) or 2.09.
“CP&L”
means
the Carolina Power and Light Company.
“Current
Termination Date”
has
the
meaning assigned to that term in Section 2.15(a).
“Declining
Lender”
has the
meaning assigned to that term in Section 2.15(a).
“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 I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office of such
Lender as such Lender may from time to time specify to the Borrower and the
Administrative Agent.
“Eligible
Assignee”
means
(i) any other Lender or any Affiliate of a Lender meeting the criteria set
forth
in clause (ii) hereof and (ii) (A) any other commercial bank organized under
the
laws of the United States, or any State thereof, and having a combined capital
and surplus of at least $250,000,000 (as established in its most recent report
of condition to its primary regulator), (B) a savings and loan association
or
savings bank organized under the laws of the United States, or any State
thereof, and having a combined capital and surplus of at least $250,000,000
(as
established in its most recent report of condition to its primary regulator),
(C) a commercial bank organized under the laws of any other country that is
a
member of the OECD, or has concluded special lending arrangements with the
International Monetary Fund associated with its General Arrangements to Borrow,
or the Cayman Islands, or a political subdivision of any such country, and
having a combined capital and surplus of at least $250,000,000 (as established
in its most recent report of condition to its primary regulator);
provided
that
such bank is acting through a branch or agency located in the United States
or
in the country in which it is organized or another country that is described
in
this clause (C), (D) the central bank of any country that is a member of the
OECD, or (E) a finance company, insurance company or other financial institution
or fund (whether a corporation, partnership or other entity) that is engaged
in
making, purchasing or otherwise investing in commercial loans in the ordinary
course of its business, whose outstanding unsecured indebtedness is rated AA-
or
better by S&P or Aa3 or better by Moody’s (or an equivalent rating by
another nationally-recognized credit rating agency of similar standing if
neither of such corporations is then in the business of rating unsecured
indebtedness) or, in the case of an Affiliate of a Lender only, whose
obligations are fully guaranteed by a finance company, insurance company or
other financial institution or fund whose outstanding unsecured indebtedness
has
such a rating.
“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.
“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 I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender (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 Borrower and the
Administrative Agent.
“Eurodollar
Rate” means,
for the Interest Period for each Eurodollar Rate Advance made as part of the
same Borrowing, an interest rate per
annum
equal to
(i) the rate appearing on Page 3750 of the Telerate Service (or such other
page or service as may replace such Page 3750 for the purpose of displaying
London Interbank Offered Rates of prime banks in the London interbank market)
as
of 11:00 a.m. (London time) on the day that is two Business Days prior to the
first day of such Interest Period, as the London Interbank Offered Rate for
Dollar deposits for a period comparable to such Interest Period or (ii) if
no quotation is given on Page 3750 of the Telerate Service (or such other page
or service as may replace such Page 3750 for the purpose of displaying London
Interbank Offered Rates of prime banks in the London interbank market), the
rate
(rounded upward to the nearest whole multiple of 1/16 of 1% per
annum,
if such
average is not such a multiple) at which Dollar deposits are offered to the
principal London offices of Citibank in immediately available funds for a period
comparable to such Interest Period as of 11:00 a.m. (London time) on the day
that is two Business Days prior to the first day of such Interest
Period.
“Eurodollar
Rate Advance”
means an
Advance that bears interest as provided in Section 2.06(b).
“Eurodollar
Rate Reserve Percentage”
of any
Lender for the Interest Period for any Eurodollar Rate Advance means the reserve
percentage 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
Credit Facility”
means
the Credit Agreement, dated as of August 5, 2004, as amended, among Borrower,
the lenders and issuing banks party thereto and Citibank, N.A., as
administrative agent.
“Extending
Commitment Lender”
has
the
meaning assigned to that term in Section 2.15(b).
“Extension
of Credit”
means
(i) the making of an Advance or (ii) the issuance of a Letter of Credit or
the
amendment of any Letter of Credit having the effect of extending the stated
termination date thereof or increasing the maximum amount to be drawn
thereunder.
“Facility
Fee Percentage”
means,
at all times during which any Applicable Rating Level set forth below is in
effect, the rate per
annum
set
forth below next to such Applicable Rating Level:
|
Applicable
Rating Level
|
Facility
Fee Percentage
|
|
1
|
0.070%
|
|
2
|
0.080%
|
|
3
|
0.100%
|
|
4
|
0.125%
|
|
5
|
0.175%
|
provided,
that a
change in the Facility Fee Percentage resulting from a change in the Applicable
Rating Level shall become effective upon the date of announcement of a change
in
the Xxxxx’x Rating or the S&P Rating that results in a change in the
Applicable Rating Level.
“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, as published for such day (or, if such day
is
not a Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day that is
a
Business Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
“First
Mortgage Bonds”
means
those bonds issued from time to time by CP&L pursuant to the
Mortgage.
“Florida
Power”
means
Florida Power Corporation.
“Florida
Power Mortgage”
means
the Indenture, dated as of January 1, 1944, between Florida Power, Guaranty
Trust Company of New York and the Florida National Bank of Jacksonville, as
modified, amended or supplemented from time to time.
“Florida
Power Mortgage Bonds”
means
those bonds issued from time to time by Florida Power pursuant to the Florida
Power Mortgage.
“FPC”
means
Florida Progress Corporation.
“GAAP”
means
generally accepted accounting principles, including principles of consolidation,
consistent with those applied in the preparation of the financial statements
referred to in Section 4.01(e).
“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.
“Hostile
Acquisition”
shall
mean any Target Acquisition (as defined below) involving a tender offer or
proxy
contest that has not been recommended or approved by the board of directors
(or
similar governing body) of the Person that is the subject of such Target
Acquisition prior to the first public announcement or disclosure relating to
such Target Acquisition. As used in this definition, the term “Target
Acquisition”
shall
mean any transaction, or any series of related transactions, by which any Person
directly or indirectly (i) acquires any ongoing business or all or
substantially all of the assets of any other Person or division thereof, whether
through purchase of assets, merger or otherwise, (ii) acquires (in one
transaction or as the most recent transaction in a series of transactions)
control of at least a majority in ordinary voting power of the securities of
any
other such Person that have ordinary voting power for the election of directors
or (iii) otherwise acquires control of more than a 50% ownership interest
in any other such Person.
“ISP”
means,
with respect to any Letter of Credit, the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice (or such
later version thereof as may be in effect at the time of issuance).
“Increasing
Lender”
shall
have the meaning assigned such term in Section 2.04(b).
“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, (iv) any obligation of such
Person as lessee under a capital lease, (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, (x) any Synthetic Lease Obligations of
such
Person and (xi) any Indebtedness of others Guaranteed by such
Person.
“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 date of the Conversion
of
any Advance into such an Advance and ending on the last day of the period
selected by the Borrower 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
Borrower pursuant to the provisions below. The duration of each such Interest
Period shall be one, two, three or six months, as the Borrower may, in the
Notice of Borrowing given by the Borrower to the Administrative Agent pursuant
to Section 2.02, select; provided,
however,
that:
(i) the
Borrower may not select any Interest Period that ends after the 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 or telecopy
transmission of each Interest Period so selected by the Borrower.
“Issuing
Bank”
shall
mean SunTrust Bank, as issuer of Letters of Credit, and any other Lender or
Affiliate thereof that agrees pursuant to Section 7.07 to act as an Issuing
Bank
hereunder.
“LC
Commitment”
shall
mean, with respect to any Issuing Bank, the commitment of such Issuing Bank
to
issue Letters of Credit on the terms and conditions hereof in an aggregate
stated amount not to exceed the amount agreed from time to time by such Issuing
Bank and the Borrower pursuant to Section 7.07.
“LC
Disbursement”
shall
mean a payment made by an Issuing Bank pursuant to a Letter of
Credit.
“LC
Documents”
shall
mean the Letters of Credit and all applications, agreements and instruments
relating to the Letters of Credit.
“LC
Exposure”
shall
mean, at any time, the sum of (i) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus
(ii) the aggregate amount of all LC Disbursements that have not been
reimbursed by or on behalf of the Borrower at such time. The LC Exposure of
any
Lender shall be its Pro Rata Share of the total LC Exposure at such time. For
all purposes of this Agreement, if on any date of determination a Letter of
Credit has expired by its terms but any amount may still be drawn thereunder
by
reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall
be
deemed to be “outstanding” in the amount so remaining available to be
drawn.
“Lenders”
means
the Banks, each Additional Lender and each Eligible Assignee that shall become
a
party hereto pursuant to Section 8.07.
“Letter
of Credit”
shall
mean any letter of credit issued pursuant to Section 2.16 by an Issuing Bank
for
the account of the Borrower.
“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 aggregate Outstanding Credits,
or,
if no Outstanding Credits are then outstanding, Lenders having more than 50%
of
the Commitments (provided
that,
for purposes hereof, neither the Borrower, 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, (A) at a fixed or determinable date, whether by
operation of a sinking fund or otherwise, (B) at the option of any Person other
than such Person or (C) 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 (ii) convertible into Mandatorily Redeemable Stock.
“Moody’s”
means
Xxxxx’x Investors Service, Inc., or any successor thereto.
“Xxxxx’x
Rating”
means,
on any date of determination, the debt rating most recently announced by Moody’s
with respect to the Borrower’s long-term senior unsecured non-credit-enhanced
debt.
“Mortgage”
means
the Mortgage and Deed of Trust, dated as of May 1, 1940, from CP&L to
The Bank of New York (formerly Irving Trust Company) and to Xxxxxxxxx X. Xxxxxx
(X.X. Xxxxxxxxxx, successor), 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 2.09.
“OECD”
means
the Organization for Economic Cooperation and Development.
“Outstanding
Credits”
means,
on any date of determination, an amount equal to the sum of (i) the aggregate
principal amount of all Advances outstanding on such date plus
(ii) the
LC Exposure on such date. The “Outstanding Credits” of any Lender means, on any
date of determination, an amount equal to the sum of (A) the aggregate principal
amount of all outstanding Advances made by such lender plus
(B) such
Lender’s LC Exposure on such date.
“Patriot
Act”
means
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001), as in effect from time to time.
“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 Borrower or any of its Affiliates and covered by Title IV of
ERISA.
“Pro
Rata Share”
shall
mean, with respect to any Commitment of any Lender at any time, a percentage,
the numerator of which shall be such Lender’s Commitment (or if the Commitments
have been terminated or expired or the Outstanding Credits have been declared
to
be due and payable, the Outstanding Credits made by such Lender), and the
denominator of which shall be the sum of the Commitments of all Lenders (or
if
the Commitments have been terminated or expired or the Outstanding Credits
have
been declared to be due and payable, the Outstanding Credits made by all
Lenders).
“Progress
Capital”
means
Progress Capital Holdings, Inc.
“Portfolio
Transaction” means
the
sale
of
Florida
Progress’s and CP&L’s
portfolio of affordable housing investments.
“Reference
Banks”
means
Citibank and JPMorgan Chase Bank, N.A.
“Register”
has the
meaning specified in Section 8.07(c).
“Responsible
Officer”
means
the President, any Vice President, the Chief Financial Officer, the Treasurer,
the Controller or any Assistant Treasurer of the Borrower the signatures of
whom, in each case, have been certified to the Administrative Agent and each
other Lender pursuant to Section 3.01(c), 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
Borrower amending, canceling or replacing such certificate.
“S&P”
means
Standard & Poor’s Ratings Group or any successor thereto.
“S&P
Rating”
means,
on any date of determination, the debt rating most recently announced by S&P
with respect to the Borrower’s long-term senior unsecured non-credit-enhanced
debt.
“Significant
Subsidiary”
means
CP&L, Florida Power, Progress Capital and any other Subsidiary of the
Borrower that at any time constitutes a “significant subsidiary”, as such term
is defined in Regulation S-X of the Securities and Exchange Commission as in
effect on the date hereof (17 C.F.R. Part 210).
“Solvent”
means,
with respect to any person as of a particular date, that on such date such
person is able to pay its debts and other liabilities, contingent obligations
and other commitments as they mature in the normal course of business. In
computing the amount of contingent liabilities at any time, it is intended
that
such liabilities will be computed as the amount which, in light of all the
facts
and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
“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).
“Syndication
Agent”
means
JPMorgan Chase Bank, N.A.
“Synthetic
Lease”
means
a
lease transaction under which the parties intend that (i) the lease will be
treated as an “operating lease” by the lessee pursuant to Statement of Financial
Accounting Standards No. 13, as amended, and (ii) the lessee will be entitled
to
various tax and other benefits ordinarily available to owners (as opposed to
lessees) of like property.
“Synthetic
Lease Obligations”
means,
with respect to any Person, the sum of (i) all remaining rental obligations
of
such Person as lessee under Synthetic Leases that are attributable to principal
and, without duplication, and (ii) all rental and purchase price payment
obligations of such Person under such Synthetic Leases assuming such Person
exercises the option to purchase the lease property at the end of the lease
term.
“Termination
Date”
means,
with respect to any Lender, the earlier to occur of (i) May 3, 2011, subject
to
extension to a later date for such Lender pursuant to Section 2.15, and (ii)
the
date of termination 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 Borrower 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 that 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 Borrower (in each case, determined in accordance with
GAAP), plus
Consolidated
Indebtedness of the Borrower.
SECTION
1.02. Computation
of Time Periods.
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” and the words “to”
and “until” each means “to but excluding”.
SECTION
1.03. Accounting
Terms.
All
accounting terms not specifically defined herein shall be construed in
accordance with GAAP.
ARTICLE
II
AMOUNTS
AND TERMS OF THE ADVANCES
SECTION
2.01. The
Advances.
(a) Each
Lender severally agrees, on the terms and conditions hereinafter set forth,
to
make Advances to the Borrower from time to time on any Business Day during
the
period from the date hereof to and including the day prior to the Termination
Date, in an aggregate amount outstanding not to exceed at any time the amount
set forth opposite such Lender’s name on Schedule I hereto or, if such Lender
has entered into any Assignment and Acceptance, 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 pursuant to Section 2.04(a) (such Lender’s
“Commitment”), and
each
Issuing Bank agrees to issue Letters of Credit for the account of the Borrower
from time to time on any Business Day during the period from the date hereof
until the tenth Business Day prior to the Termination Date in an aggregate
amount not to exceed the amount of such Issuing Bank’s LC
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 day prior to the Termination Date, within
the
limits of each Lender’s Commitment, the Borrower may from time to time borrow,
repay pursuant to Section 2.05 or prepay pursuant to Section 2.10(b) and
reborrow under this Section 2.01. In no event shall the Borrower be entitled
to
request or receive any Extension of Credit that would cause the aggregate
Outstanding Credits to exceed the Commitments.
(b) Any
Lender may request that the Advances made by it be evidenced by one or more
promissory notes. In such event, the Borrower shall prepare, execute and deliver
to such Lender one or more promissory notes payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its assignees) and in
a
form approved by the Administrative Agent.
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 Borrower to the Administrative Agent, which shall give
to
each Lender prompt notice thereof by telecopier. Each such notice of a Borrowing
(a “Notice
of Borrowing”)
shall
be by telecopier, confirmed promptly in writing, in substantially the form
of
Exhibit A-1 hereto, specifying therein the requested (i) date of such Borrowing,
(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
2.06(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 Borrower at the Administrative Agent’s
aforesaid address.
(b) Each
Notice of Borrowing shall be irrevocable and binding on the Borrower and, in
respect of any Borrowing comprised of Eurodollar Rate Advances, the Borrower
shall indemnify each Lender against any loss or expense incurred by such Lender
as a result of any failure by the Borrower 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 date of any Borrowing (in the case of a Eurodollar Borrowing) or the time
of
any Borrowing (in the case of a Base Rate Borrowing) date
of
any Borrowing 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 and the Administrative Agent may, in reliance upon
such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent such Lender shall not have so made such ratable portion
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent (without duplication), forthwith
on
demand, such corresponding amount, together with interest thereon for each
day
from the date such amount is made available to the Borrower until the date
such
amount is repaid to the Administrative Agent, at (x) in the case of the
Borrower, the interest rate applicable at the time to Advances comprising such
Borrowing and (y) in the case of such Lender, the Federal Funds Rate. If such
Lender shall repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Lender’s Advance as part of such
Borrowing for purposes of this Agreement.
(d) The
failure of any Lender to make the Advance to be made by it as part of any
Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but 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.
(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, that such Lender has made available to the Administrative Agent
as such Lender’s ratable portion of such Borrowing, together with interest
thereon for each day from the date such amount is made available to the
Administrative Agent until the date such amount is repaid to such Lender, at
the
Federal Funds Rate.
SECTION
2.03. Fees.
(a) The
Borrower agrees to pay to the Administrative Agent for the account of each
Lender a facility fee on each Lender’s Commitment, irrespective of usage, (i)
from the date hereof, in the case of each Bank, and (ii) from the effective
date
specified in the Assignment and Acceptance pursuant to which it became a Lender
or the date on which it became an Additional Lender, in the case of each other
Lender, until the Termination Date at the rate per
annum
equal to
the Facility Fee Percentage from time to time in effect. Such fee shall be
calculated on the basis of actual number of days elapsed in a year of 365 or
366
days. Such fee shall be 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.
(b) The
Borrower agrees to pay to the Administrative Agent an agency fee in such amounts
and payable at such times, as shall be agreed to between them in
writing.
(c) The
Borrower agrees to pay to the Administrative Agent for the account of each
Lender a letter of credit fee at a rate per
annum
equal to
the Applicable Margin for Eurodollar Rate Advances in effect from time to time
on the average daily amount of each such Lender’s LC Exposure from the date
hereof until the later to occur of the Termination Date and the date on which
there is no amount remaining available to be drawn under any Letter of Credit.
Such fee shall be calculated on the basis of actual number of days elapsed
in a
year of 360 days. Such fee shall be payable quarterly in arrears on the last
day
of each March, June, September and December and on the later to occur of the
Termination Date and the date on which there is no amount remaining available
to
be drawn under any Letter of Credit.
(d) The
Borrower agrees to pay to each Issuing Bank for its own account a fronting
fee
and such other customary fees and expenses relating to the issuance, amendment,
and drawings under the Letters of Credit, in such amounts and payable at such
times as shall be agreed between them in writing.
SECTION
2.04. Reduction
and Increase of the Commitments.
(a) The
Borrower shall have the right, upon at least three Business Days’ notice to the
Administrative Agent, irrevocably to terminate in whole or reduce ratably in
part the unused portions of the respective Commitments of the Lenders;
provided
that the
aggregate amount of the Commitments of the Lenders shall not be reduced to
an
amount that is less than the aggregate principal amount of the Outstanding
Credits; and provided,
further,
that
each partial reduction of Commitments shall be in the aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof. Once
terminated or reduced, the Commitments may not be reinstated.
(b) (i) At
any
time prior to the Termination Date, the Borrower may increase the aggregate
amount of the Commitments to an amount not greater than $1,500,000,000 (any
such
increase, a “Commitment
Increase”)
by
designating either one or more of the existing Lenders (each of which, in its
sole discretion, may determine whether and to what degree to offer to
participate in such Commitment Increase) or one or more other banks or other
financial institutions reasonably acceptable to the Administrative Agent that
at
the time agree, in the case of any such bank or financial institution that
is an
existing Lender to increase its Commitment (an “Increasing
Lender”)
and,
in the case of any other such bank or financial institution (an “Additional
Lender”),
to
become a party to this Agreement. The sum of the increases in the Commitments
of
the Increasing Lenders pursuant to this subsection (b) plus the Commitments
of
the Additional Lenders upon giving effect to the Commitment Increase shall
not
in the aggregate exceed the amount of the Commitment Increase. The Borrower
shall provide prompt notice of any proposed Commitment Increase pursuant to
this
Section 2.04(b) to the Administrative Agent, which shall promptly provide a
copy
of such notice to the Lenders.
(ii) Any
Commitment Increase shall become effective upon the receipt by the
Administrative Agent of (A) an agreement in form and substance satisfactory
to
the Administrative Agent signed by the Borrower, each Increasing Lender and
each
Additional Lender, setting forth the new Commitment of each such Lender and
setting forth the agreement of each Additional Lender to become a party to
this
Agreement and to be bound by all the terms and provisions hereof binding upon
each Lender, (B) certified copies of the Commitment Increase Approvals and
such
opinions of counsel for the Borrower with respect to the Commitment Increase
as
the Administrative Agent may reasonably request, and (C) a certificate (the
statements contained in which shall be true) of a duly authorized officer of
the
Borrower stating that both before and after giving effect to such Commitment
Increase (x) no Event of Default has occurred and is continuing, (y) all
representations and warranties made by the Borrower in this Agreement are true
and correct in all material respects, provided
that all
representations and warranties limited by materiality are, to the extent so
limited, true and correct in all respects, and (z) all Commitment Increase
Approvals have been obtained and are in full force and effect.
(iii) On
the
effective date of any Commitment Increase, the Borrower shall prepay the
outstanding Borrowings (if any) in full, and shall simultaneously make new
Borrowings hereunder in an amount equal to such prepayment, so that, after
giving effect thereto, the Borrowings are held ratably by the Lenders in
accordance with their respective Commitments (after giving effect to such
Commitment Increase). Prepayments made under this paragraph (iii) shall not
be
subject to the notice requirements of Section 2.13. Promptly following the
effective date of any Commitment Increase, the Administrative Agent shall
deliver to each Lender and Issuing Bank a revised Schedule I setting forth
the
Commitment of each Lender after giving effect to such Commitment Increase,
and
such Schedule I shall replace the Schedule I in effect before such Commitment
Increase.
SECTION
2.05. Repayment
of Advances.
The
Borrower shall repay the principal amount of each Advance made by each Lender
on
the Termination Date of such Lender, subject to Section 2.15
hereof.
SECTION
2.06. Interest
on Advances.
The
Borrower 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, payable quarterly in arrears on the last day of each March,
June, September and December and on the date such Base Rate Advance shall be
paid in full; provided,
however,
that if
and for so long as an Event of Default has occurred and is continuing, interest
on the unpaid principal amount of each Base Rate Advance shall be payable on
demand.
(b) Eurodollar
Rate Advances.
If such
Advance is a Eurodollar Rate Advance, a rate per
annum
equal at
all times during each Interest Period for such Advance to the sum of the
Eurodollar Rate for such Interest Period, plus
the
Applicable Margin for such Eurodollar Rate Advance in effect from time to time,
payable on the last day of such Interest Period and, if such Interest Period
for
such Advance has a duration of more than three months, on each day that occurs
during such Interest Period every three months from the first day of such
Interest Period; provided,
however,
that if
and for so long as an Event of Default has occurred and is continuing, interest
on the unpaid amount of each Eurodollar Rate Advance shall be payable on
demand.
SECTION
2.07. Additional
Interest on Eurodollar Rate Advances.
The
Borrower 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 Borrower (with a copy to
the
Administrative Agent) as soon as is reasonably possible and in all events within
90 days after the first day of such Interest Period; provided,
however,
that if
a claim is not submitted to the Borrower within such 90-day period, such Lender
shall thereby waive its claim to such additional interest incurred during such
90-day period but not to any such additional interest incurred thereafter.
A
certificate as to the amount of such additional interest, submitted to the
Borrower (with a copy to the Administrative Agent) by such Lender, shall be
conclusive and binding for all purposes, absent manifest error.
SECTION
2.08. Interest
Rate Determination.
(a) Each
Reference Bank agrees to furnish to the Administrative Agent timely information
for the purpose of determining the Eurodollar Rate. If any one or more of the
Reference Banks shall not furnish such timely information to the Administrative
Agent for determination of any such interest rate, the Administrative Agent
shall determine such interest rate on the basis of timely information furnished
by the remaining Reference Banks.
(b) The
Administrative Agent shall give prompt notice to the Borrower and the Lenders
of
the applicable interest rate determined by the Administrative Agent for purposes
of Section 2.06(a) or (b), and the applicable rate, if any, furnished by each
Reference Bank for determining the applicable interest rate under Section
2.06(b).
(c) If
fewer
than two Reference Banks furnish timely information to the Administrative Agent
for determining the Eurodollar Rate for any Eurodollar Rate
Advances,
(i) the
Administrative Agent shall forthwith notify the Borrower and the Lenders that
the interest rate cannot be determined for such Eurodollar Rate
Advances,
(ii) each
such
Advance will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance (or if such Advance is then a Base
Rate Advance, will continue as a Base Rate Advance), and
(iii) 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
Borrower and the Lenders that the circumstances causing such suspension no
longer exist.
(d) If,
with
respect to any Eurodollar Rate Advances, 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
Borrower 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
Borrower and the Lenders that the circumstances causing such suspension no
longer exist.
(e) If
the
Borrower 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 Borrower and the Lenders and such Advances will
automatically, on the last day of the then existing Interest Period therefor,
Convert into Base Rate Advances.
(f) 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 Advances of a Type other than
Base
Rate Advances, automatically Convert into Base Rate Advances, and on and after
such date the right of the Borrower to Convert such Advances into Advances
of a
Type other than Base Rate 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 Advances comprising another Borrowing or other Borrowings,
and the aggregate unpaid principal amount of all such Advances shall equal
or
exceed $20,000,000, the Borrower shall have the right to continue all such
Advances as, or to Convert all such Advances into, Advances of such Type having
such Interest Period.
(g) If
an
Event of Default has occurred and is continuing, (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.
SECTION
2.09. Voluntary
Conversion of Advances.
The
Borrower 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, in the case of any proposed Conversion into Base
Rate Advances, and subject to the provisions of Sections 2.08 and 2.12, 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 Advances of another Type
shall be made on, and only on, the last day of an Interest Period for such
Eurodollar Rate Advances, except as otherwise provided in Section 2.12. Each
such notice of a Conversion (a “Notice
of Conversion”)
shall
be by telecopier, 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 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 or with respect to Eurodollar
Rate Advances, the duration of the Interest Period for each such
Advance.
SECTION
2.10. Prepayments
of Advances.
(a) The
Borrower shall have no right to prepay any principal amount of any Advances
other than as provided in subsection (b) below.
(b) The
Borrower 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 Borrower 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 (i)
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 and (ii)
in
the case of any such prepayment of a Eurodollar Rate Advance, the Borrower
shall
be obligated to reimburse the Lenders in respect thereof pursuant to Section
8.04(b) on the date of such prepayment.
SECTION
2.11. 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 or any
increase in the cost to such Lender or any Issuing Bank of participating in
or
issuing any Letter of Credit, then the Borrower shall from time to time, upon
demand by such Lender or such Issuing Bank (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender or such Issuing Bank additional amounts sufficient to reimburse such
Lender or such Issuing Bank for such increased cost. All claims for increased
cost shall be submitted by such Lender or such Issuing Bank to the Borrower
(with a copy to the Administrative Agent) as soon as is reasonably possible
and
in all events within 90 days after such introduction, such change, or the
beginning of such compliance, the occurrence of which resulted in such increased
cost, and the Borrower shall make such payment within five Business Days after
notice of such claim is received; provided,
however,
that if
a claim is not submitted to the Borrower within such 90-day period, such Lender
or such Issuing Bank shall thereby waive its claim to such increased cost
incurred during such 90-day period but not to any such increased cost incurred
thereafter. A certificate as to the amount of such increased cost, submitted
to
the Borrower (with a copy to the Administrative Agent) by such Lender or such
Issuing Bank, shall be conclusive and binding for all purposes, absent manifest
error.
(b) If
any
Lender or any Issuing Bank 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 such
Issuing Bank or any corporation controlling such Lender or such Issuing Bank
and
that the amount of such capital is increased by or based upon the existence
of
such Lender’s commitment to lend or participate in Letters of Credit or the
obligation of such Issuing Bank to issue Letters of Credit hereunder and other
commitments of this type, then, upon demand by such Lender or such Issuing
Bank
(with a copy of such demand to the Administrative Agent), the Borrower shall
immediately pay to the Administrative Agent for the account of such Lender
or
such Issuing Bank, from time to time as specified by such Lender or such Issuing
Bank, additional amounts sufficient to compensate such Lender or Issuing Bank
or
such corporation in the light of such circumstances, to the extent that such
Lender or such Issuing Bank reasonably determines such increase in capital
to be
allocable to the existence of such Lender’s commitment to lend or participate in
Letters of Credit or the obligation of such Issuing Bank to issue Letters of
Credit hereunder. All claims for such additional amounts shall be submitted
by
such Lender or such Issuing Bank (with a copy to the Administrative Agent)
as
soon as is reasonably possible and in all events within 90 days after such
determination by such Lender or such Issuing Bank, and the Borrower shall make
such payment within five Business Days after notice of such claim is received;
provided,
however,
that if
a claim is not submitted to the Borrower within such 90-day period, such Lender
or such Issuing Bank shall thereby waive its claim to such additional amounts
incurred during such 90-day period but not to any such additional amounts
incurred thereafter. A certificate as to such amounts submitted to the Borrower
and the Administrative Agent by such Lender or such Issuing Bank shall be
conclusive and binding for all purposes, absent manifest error.
SECTION
2.12. 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
hereunder, (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 Borrower and the Lenders that the
circumstances causing such suspension no longer exist, and (ii) the Borrower
shall forthwith prepay in full all Eurodollar Rate Advances of all Lenders
then
outstanding, together with interest accrued thereon, unless the Borrower, within
five Business Days of notice from the Administrative Agent, Converts all
Eurodollar Rate Advances of all Lenders then outstanding into Advances of
another Type in accordance with Section 2.09.
SECTION
2.13. Payments
and Computations.
(a) The
Borrower shall make each payment hereunder, without condition or deduction
for
any counterclaim, defense, recoupment or setoff, 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
2.02(c), 2.07, 2.11 or 2.15(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 Issuing Bank or to any Lender to such Issuing
Bank or 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 Acceptance 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 Acceptance, 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 Acceptance 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 the base rate referred to in clause (i) of
the
definition of Base Rate 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 Federal Funds Rate or of fees payable
hereunder shall be made by the Administrative Agent, and all computations of
interest pursuant to Section 2.07 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 for which such
interest or fees are payable. Each determination by the Administrative Agent
(or, in the case of Section 2.07, by a Lender) of an interest rate hereunder
shall be conclusive and binding for all purposes.
(c) 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 Borrower prior
to
the date on which any payment is due to the Lenders hereunder that the Borrower
will not make such payment in full, the Administrative Agent may assume that
the
Borrower 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 Borrower 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
2.14. 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 2.02(c), 2.07 or 2.11) in excess of its
ratable share of payments on account of the Extensions of Credit obtained by all
the Lenders, such Lender shall forthwith purchase from the other Lenders such
participation in the Extensions of Credit 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 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. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.14
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 Borrower in the amount of such
participation.
SECTION
2.15. 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 first and second anniversaries of the date hereof (each,
an
“Anniversary
Date”),
the
Borrower may request that the Lenders, by written notice to the Administrative
Agent (in substantially the form attached hereto as Exhibit E) 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 Borrower 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
2.15(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 with respect to Letters of
Credit as of such Current Termination Date. The Borrower 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(g), 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 2.15.
(c) Any
extension of the Termination Date pursuant to this Section 2.15 shall become
effective upon the applicable Anniversary Date if the Borrower shall have
delivered to the Administrative Agent and each Lender, on or prior to such
Anniversary Date, (i) opinions of counsel to the Borrower substantially in
the forms of Exhibits C-3 and C-4 attached hereto upon which each Lender, each
Issuing Bank 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 Borrower (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 2.15, the
Administrative Agent shall deliver to each Lender and Issuing Bank a revised
Schedule I setting forth the Commitment of each Lender and Issuing Bank after
giving effect to such extension, and such Schedule I shall replace the Schedule
I in effect before the applicable Anniversary Date.
SECTION
2.16. Letters
of Credit.
(a) From
time
to time and on any Business Day during the period from the date hereof to the
tenth Business Day preceding the Termination Date, each Issuing Bank, in
reliance upon the agreements of the other Lenders pursuant to
subsection (d) of this Section 2.16, agrees to issue, at the request of the
Borrower, Letters of Credit for the account of the Borrower on the terms and
conditions hereinafter set forth; provided,
that
(i) each Letter of Credit shall expire on the earlier of (A) the date one year
after the date of issuance of such Letter of Credit (or in the case of any
renewal or extension thereof, one year after such renewal or extension) and
(B)
the date that is five Business Days prior to the Termination Date, provided
that
no Letter of Credit may expire after the Termination Date of any Declining
Lender if, after giving effect to such issuance, the aggregate Commitments
of
the consenting Lenders (including any replacement Lenders) for the period
following such Termination Date would be less than the available amount of
the
Letters of Credit expiring after such Termination Date; (ii) each Letter of
Credit shall be in a stated amount of at least $25,000; and (iii) the Borrower
may not request any Extension of Credit relating to a Letter of Credit if,
after
giving effect to such Extension of Credit, (X) the aggregate Outstanding Credits
would exceed the Commitments or (Y) that portion of the LC Exposure arising
from
Letters of Credit issued by such Issuing Bank and from LC Disbursements made
by
such Issuing Bank would exceed the amount of such Issuing Bank’s LC Commitment.
Upon each Extension of Credit relating to a Letter of Credit issued by any
Issuing Bank, each Lender shall be deemed, and hereby irrevocably and
unconditionally agrees, to purchase from such Issuing Bank without recourse
a
participation in such Letter of Credit equal to such Lender’s Pro Rata Share of
the aggregate amount available to be drawn under such Letter of Credit. Each
Letter of Credit shall utilize the Commitment of each Lender by an amount equal
to the amount of such participation.
(b) To
request an Extension of Credit relating to a Letter of Credit, the Borrower
shall give an Issuing Bank and the Administrative Agent irrevocable written
notice at least three Business Days prior to the requested date of such
Extension of Credit specifying the date (which shall be a Business Day) on
which
such Extension of Credit is to occur, the expiration date of such Letter of
Credit, the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. In addition to the satisfaction
of
the conditions in Section 3.02, such Extension of Credit will be subject to
the
further conditions that such Letter of Credit shall be in such form and contain
such terms as such Issuing Bank shall approve and that the Borrower shall have
executed and delivered any additional applications, agreements and instruments
relating to such Extension of Credit as such Issuing Bank shall reasonably
require; provided,
that in
the event of any conflict between such applications, agreements or instruments
and this Agreement, the terms of this Agreement shall control.
(c) At
least
two Business Days prior to each Extension of Credit relating to a Letter of
Credit, the applicable Issuing Bank will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received the
notice related thereto and, if it has not, such Issuing Bank will provide the
Administrative Agent with a copy thereof. Unless such Issuing Bank has received
notice from the Administrative Agent on or before the Business Day immediately
preceding the date on which such Issuing Bank is to make the requested Extension
of Credit relating to such Letter of Credit directing such Issuing Bank not
to
make such Extension of Credit because such Extension of Credit is not then
permitted hereunder because of the limitations set forth in subsection (a)
of
this Section 2.16, or that one or more conditions specified in Section 3.02
are
not then satisfied, then, subject to the terms and conditions hereof, such
Issuing Bank shall, on the requested date, make such Extension of Credit in
accordance with such Issuing Bank’s usual and customary business
practices.
(d) Each
Issuing Bank shall examine all documents purporting to represent a demand for
payment under a Letter of Credit promptly following its receipt thereof. Such
Issuing Bank shall notify the Borrower and the Administrative Agent (i) of
such
demand for payment and (ii) whether such Issuing Bank has made or will make
a LC
Disbursement thereunder; provided,
that
any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse such Issuing Bank and the Lenders with
respect to such LC Disbursement. The Borrower shall be irrevocably and
unconditionally obligated to reimburse such Issuing Bank for any LC
Disbursements paid by such Issuing Bank in respect of such drawing, without
presentment, demand or other formalities of any kind. Unless the Borrower shall
have notified such Issuing Bank and the Administrative Agent prior to 11:00
A.M.
on the Business Day immediately prior to the date on which such drawing is
honored that the Borrower intends to reimburse such Issuing Bank for the amount
of such drawing in funds other than from the proceeds of Advances, the Borrower
shall be deemed to have timely given a Notice of Borrowing to the Administrative
Agent requesting a Borrowing compromising Base Rate Advances on the date on
which such drawing is honored in the amount payable to such Issuing Bank in
respect of such LC Disbursement; provided,
that
for purposes solely of such Borrowing, the conditions precedents set forth
in
Section 3.02 hereof shall not be applicable. The Administrative Agent shall
notify the Lenders of such Borrowing in accordance with Section 2.03(a), and
each Lender shall make the proceeds of its Base Rate Advance included in such
Borrowing available to the Administrative Agent for the account of such Issuing
Bank in accordance with Section 2.03(a). The proceeds of such Borrowing shall
be
applied directly by the Administrative Agent to reimburse such Issuing Bank
for
such LC Disbursement.
(e) If
for
any reason a Borrowing may not be (as determined in the sole discretion of
the
Administrative Agent), or is not, made in accordance with the foregoing
provisions and the Borrower has not otherwise reimbursed an Issuing Bank for
an
LC Disbursement, then each Lender shall be obligated to fund the participation
that such Lender purchased pursuant to subsection (a) in an amount equal to
its
Pro Rata Share of such LC Disbursement on and as of the date on which such
Borrowing should have occurred. Each Lender’s obligation to fund its
participation shall be absolute and unconditional and shall not be affected
by
any circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person may
have
against any Issuing Bank or any other Person for any reason whatsoever, (ii)
the
existence of an Event of Default or the termination of the Commitments, (iii)
any adverse change in the condition (financial or otherwise) of the Borrower
or
any of its Subsidiaries, (iv) any breach of this Agreement by the Borrower
or
any other Lender, (v) any amendment, renewal or extension of any Letter of
Credit or (vi) any other circumstance, happening or event whatsoever, whether
or
not similar to any of the foregoing. On the date that such participation is
required to be funded, each Lender shall promptly transfer, in immediately
available funds, the amount of its participation to the Administrative Agent
for
the account of such Issuing Bank. Whenever, at any time after such Issuing
Bank
has received from any such Lender the funds for its participation in a LC
Disbursement, such Issuing Bank (or the Administrative Agent on its behalf)
receives any payment on account thereof from the Borrower, the Administrative
Agent or such Issuing Bank, as the case may be, will distribute to such Lender
its Pro Rata Share of such payment; provided,
that if
such payment is required to be returned for any reason to the Borrower or to
a
trustee, receiver, liquidator, custodian or similar official in any bankruptcy
proceeding, such Lender will return to the Administrative Agent or such Issuing
Bank any portion thereof previously distributed by the Administrative Agent
or
such Issuing Bank to it.
(f) To
the
extent that any Lender shall fail to pay when due any amount required to be
paid
pursuant to subsection (d) of this Section 2.16, such Lender shall pay to the
applicable Issuing Bank (through the Administrative Agent) interest on such
amount from the date such amount became due and payable to the date such payment
is made at a rate per
annum
equal to
the Federal Funds Rate.
(g) If
any
Event of Default shall occur and be continuing, on the Business Day that the
Borrower receives notice from the Administrative Agent or the Majority Lenders
demanding the deposit of cash collateral pursuant to this paragraph, the
Borrower shall deposit in an account with the Administrative Agent, in the
name
of the Administrative Agent and for the benefit of each Issuing Bank and the
Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid fees thereon; provided,
that
the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without
demand or notice of any kind, upon the occurrence of any Event of Default
described in subsection (e) of Section 6.01. Such deposit shall be held by
the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent
shall
have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. The Borrower agrees to execute any documents
and/or certificates to effectuate the intent of this subsection. Other than
any
interest earned on the investment of such deposits, which investments shall
be
made at the option and sole discretion of the Administrative Agent and at the
Borrower’s risk and expense, such deposits shall not bear interest. Interest and
profits, if any, on such investments shall accumulate in such account. Moneys
in
such account shall be applied by the Administrative Agent to reimburse each
Issuing Bank for LC Disbursements for which it has not been reimbursed and,
to
the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time;
or,
if the maturity of the Advances has been accelerated, with the consent of the
Majority Lenders, be applied to satisfy other obligations of the Borrower under
this Agreement. If the Borrower is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default,
such
amount (to the extent not so applied as aforesaid) shall be returned to the
Borrower promptly after all Events of Default have been cured or
waived.
(h) Promptly
following the end of each fiscal quarter of the Borrower, each Issuing Bank
shall deliver (through the Administrative Agent) to each Lender and the Borrower
a report describing the Letters of Credit outstanding and the LC Exposure
relating to such Issuing Bank at the end of such fiscal quarter. Upon the
request of any Lender from time to time, each Issuing Bank shall deliver to
such
Lender any other information reasonably requested by such Lender with respect
to
each Letter of Credit then outstanding.
(i) The
Borrower’s obligation to reimburse LC Disbursements hereunder shall be absolute,
unconditional and irrevocable and shall be performed strictly in accordance
with
the terms of this Agreement under all circumstances whatsoever and irrespective
of any of the following circumstances:
(i) any
lack
of validity or enforceability of any Letter of Credit or this
Agreement;
(ii) the
existence of any claim, set-off, defense or other right that the Borrower or
any
Subsidiary or Affiliate of the Borrower may have at any time against a
beneficiary or any transferee of any Letter of Credit (or any Person or entity
for which any such beneficiary or transferee may be acting), any Lender
(including any Issuing Bank) or any other Person, whether in connection with
this Agreement or any Letter of Credit or any document related hereto or thereto
or any unrelated transaction;
(iii) any
draft
or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue
or
inaccurate in any respect;
(iv) payment
by any Issuing Bank under a Letter of Credit against presentation of a draft
or
other document to such Issuing Bank that does not comply with the terms of
such
Letter of Credit;
(v) any
other
event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Subsection, constitute
a
legal or equitable discharge of, or provide a right of setoff against, the
Borrower’s obligations hereunder; or
(vi) the
existence of an Event of Default.
Neither
the Administrative Agent, any Issuing Bank, any Lender nor any Affiliate of
the
foregoing Persons, nor any director, officer, employee, agent of any such Person
or Affiliate shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to above), or any error, omission, interruption, loss
or
delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required
to
make a drawing thereunder), any error in interpretation of technical terms
or
any consequence arising from causes beyond the control of the Issuing Bank;
provided,
that
the foregoing shall not be construed to excuse any Issuing Bank from liability
to the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused
by
such Issuing Bank’s failure to exercise care when determining whether drafts or
other documents presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree, that in the absence of gross
negligence or willful misconduct on the part of such Issuing Bank (as finally
determined by a court of competent jurisdiction), such Issuing Bank shall be
deemed to have exercised care in each such determination. In furtherance of
the
foregoing and without limiting the generality thereof, the parties agree that,
with respect to documents presented that appear on their face to be in
substantial compliance with the terms of a Letter of Credit, such Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice
or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of
such
Letter of Credit.
(j) Each
Letter of Credit (1) if a standby Letter of Credit, shall be subject to the
rules of the ISP, and (2) if a commercial Letter of Credit shall be subject
to
the Uniform Customs and Practices for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500, as the same may be
amended from time to time, and, to the extent not inconsistent therewith, the
governing law of this Agreement set forth in Section 8.09.
(k) Upon
the
satisfaction of the conditions precedent set forth in Sections 3.01 and 3.02,
and without any further action on the part of the Borrower or the applicable
Issuing Bank pursuant to Section 2.16(b) or (c), the letters of credit described
in Schedule II shall be deemed to be Letters of Credit for all purposes under
this Agreement.
ARTICLE
III
CONDITIONS
OF LENDING
SECTION
3.01. Conditions
Precedent to Closing.
The
obligation of each Lender to make its initial Advance and of each Issuing Bank
to issue its initial Letter of Credit shall not become effective unless and
until all fees due and payable by the Borrower in connection with this Agreement
have been paid and the Administrative Agent shall have received the
following:
(a) Promissory
notes, in a form acceptable to the Administrative Agent, payable to the order
of
each Lender that has requested such a note.
(b) Copies
of
the resolutions of the Board of Directors of the Borrower approving this
Agreement and all documents evidencing other necessary corporate action,
certified by the Secretary or an Assistant Secretary of the Borrower to be
true
and correct, and in full force and effect on and as of the date
hereof.
(c) A
certificate of the Secretary or an Assistant Secretary of the Borrower, dated
as
of the date hereof, certifying the names and true signatures of the officers
of
the Borrower authorized to sign this Agreement and the other documents to be
delivered hereunder.
(d) A
certificate of a Responsible Officer of the Borrower, 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 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.
(e) Certified
copies of all governmental approvals and authorizations required to be obtained
in connection with the execution, delivery and performance by the Borrower
of
this Agreement.
(f) Certified
copies of the Restated Charter and By-Laws of the Borrower.
(g) Favorable
opinions of Xxxxx X. Xxxxxxxx, General Counsel of Progress Energy Service
Company LLC, and of Hunton & Xxxxxxxx LLP, counsel for the Borrower,
substantially in the forms of Exhibit C-1 and C-2, respectively, hereto and
as
to such other matters as any Issuing Bank or any Lender through the
Administrative Agent may reasonably request.
(h) A
favorable opinion of King & Spalding LLP, counsel for the Administrative
Agent, substantially in the form of Exhibit D hereto.
(i) The
commitments under the Existing Credit Facility shall have been terminated (and
such termination may be conditioned on the satisfaction of the conditions
precedent set forth in Section 3.02 and the deemed issuance of certain Letters
of Credit pursuant to Section 2.16(k)) and all amounts outstanding and other
amounts payable thereunder shall have been paid in full.
SECTION
3.02. Conditions
Precedent to Each Borrowing and to the Issuance of Letters of
Credit.
The
obligation of each Lender to make an Advance on the occasion of each Borrowing
(including the initial Borrowing) and of each Issuing Bank to make any Extension
of Credit relating to a Letter of Credit shall be subject to the further
conditions precedent that (a)
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 (b)
on
the date of any Extension of Credit, the following statements shall be true
(and
the giving of the Notice of Borrowing or the giving of notice of a requested
Letter of Credit pursuant to Section 2.16(b) and the acceptance by the Borrower
of the proceeds of the Borrowing or the issuance of a requested Letter of Credit
related thereto shall constitute a representation and warranty by the Borrower
that on the date of such Borrowing or issuance of such Letter of Credit such
statements are true):
(i) The
representations and warranties contained in Section 4.01 (other than the
last sentence of Section 4.01(e) and Section 4.01(f)) are correct on and as
of
the date of such Extension of Credit before and after giving effect to such
Extension of Credit and to the application of the proceeds therefrom, as though
made on and as of such date; and
(ii) No
event
has occurred and is continuing, or would result from such Extension of Credit
or
from the application of the proceeds therefrom that would constitute an Event
of
Default but for the requirement that notice be given or time elapse, or both;
and
(c)
the Administrative Agent shall have received such other approvals, opinions
and
documents as any Issuing Bank or any Lender through the Administrative Agent
may
reasonably request.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
SECTION
4.01. Representations
and Warranties of the Borrower.
The
Borrower represents and warrants as follows:
(a) Each
of
the Borrower and each Significant Subsidiary is a corporation duly incorporated,
validly existing and in good standing under the laws of the jurisdiction in
which it is incorporated and is duly qualified to do business in and is in
good
standing under the laws of each other jurisdiction where the nature of its
business or the nature of property owned or used by it makes such qualification
necessary (except where failure to so qualify would not have a material adverse
affect on the financial condition, operations or properties of the Borrower
and
its Subsidiaries, taken as a whole).
(b) The
execution, delivery and performance by the Borrower of this Agreement are within
the Borrower’s corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) the Borrower’s charter or by-laws or
(ii) any law or contractual restriction binding on or affecting the Borrower
or
its properties.
(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 Borrower of this Agreement, other than
a
notification to the North Carolina Utilities Commission, which has been timely
made.
(d) This
Agreement has been duly executed and delivered by the Borrower and is, and
any
promissory note when delivered pursuant to Section 2.01(b) will be, the
legal, valid and binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms.
(e) The
Consolidated balance sheets of the Borrower and its Subsidiaries as of December
31, 2005, and the related Consolidated statements of income and retained
earnings of the Borrower and its Subsidiaries for the fiscal year then ended,
copies of which have been furnished to each Lender and each Issuing Bank, fairly
present the financial condition of the Borrower and its Subsidiaries as at
such
date and the results of the operations of the Borrower and its Subsidiaries
for
the period ended on such date, all in accordance with generally accepted
accounting principles consistently applied. Since December 31, 2005, there
has
been no material adverse change in the financial condition, operations or
properties of the Borrower and its Subsidiaries, taken as a whole.
(f) Except
as
described in the reports and registration statements that the Borrower,
CP&L, FPC and Florida Power have 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 Borrower or any Subsidiary 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.
(g) No
proceeds of any Extension of Credit will be used to acquire any security in
any
transaction that is subject to Sections 13 and 14 of the Exchange
Act.
(h) No
proceeds of any Extension of Credit will be used in connection with any Hostile
Acquisition.
(i) The
Borrower 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.
(j) Following
application of the proceeds of each Extension of Credit, not more than 5% of
the
value of the assets (either of the Borrower only or of the Borrower and the
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).
(k) No
Termination Event has occurred or is reasonably expected to occur with respect
to any Plan, which is reasonably likely to materially adversely affect the
financial condition, operation or properties of the Borrower and its
Subsidiaries, taken as a whole.
(l) The
Borrower 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.
(m) The
Borrower 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
Borrower, such compliance to include, without limitation, substantial compliance
with ERISA, 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.
(n) The
written information furnished by the Borrower to the Administrative Agent,
the
Issuing Banks and the Lenders in connection with this Agreement when taken
together with reports filed by the Borrower with the Securities and Exchange
Commission under Section 13 of the Exchange Act as of any date of determination,
does not (and all such information furnished in the future by the Borrower
to
the Administrative Agent, the Issuing Banks and the Lenders, when taken together
with such reports filed in the future by the Borrower will 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.
(o) The
Borrower is Solvent.
ARTICLE
V
COVENANTS
OF THE COMPANY
SECTION
5.01. Affirmative
Covenants.
So
long
as there shall be any Outstanding Credits, any amount payable by the Borrower
hereunder shall remain unpaid or any Lender shall have any Commitment hereunder,
the Borrower 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 to comply,
with all applicable laws, rules, regulations and orders (such compliance to
include, without limitation, ERISA and applicable environmental laws and 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 Borrower’s business or
credit.
(b) Preservation
of Corporate Existence, Etc.
Except
as provided in Section 5.02(d), preserve and maintain, and cause each
Significant Subsidiary to preserve and maintain, its corporate existence, rights
(charter and statutory) and franchises; provided,
however,
that
Borrower may cause FPC to be merged into Borrower.
(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 Borrower and any Subsidiary, and to discuss the affairs,
finances and accounts of the Borrower and any Subsidiary with any of their
respective officers or directors.
(d) Keeping
of Books.
Keep,
and cause each Subsidiary 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 Borrower and such Subsidiary in accordance with
GAAP.
(e) Maintenance
of Properties, Etc.
Maintain
and preserve, and cause each Subsidiary to maintain and preserve, all of its
properties that 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 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 Borrower or
such Subsidiary operates.
(g) Taxes.
File,
and
cause each Subsidiary 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 except,
in the
case of taxes, to the extent the Borrower or such Subsidiary is contesting
the
same in good faith and by appropriate proceedings and has set aside adequate
reserves for the payment thereof in accordance with generally accepted
accounting principles.
(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.
(i) Reporting
Requirements.
Furnish
to each Issuing Bank and 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 Borrower, a Consolidated balance
sheet
of the Borrower and the Subsidiaries as at the end of such quarter and
Consolidated statements of income and retained earnings of the Borrower and
the
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 Borrower, together with a certificate of the treasurer
or chief financial officer of the Borrower, setting forth in reasonable detail
the calculation of the Borrower’s compliance with Section 5.01(j) and stating
that no Event of Default and no event that, with the giving of notice or lapse
of time or both, would constitute an Event of Default has occurred and is
continuing, or if an Event of Default or such event has occurred and is
continuing, a statement setting forth details of such Event of Default or event
and the action that the Borrower has taken and proposes to take with respect
thereto;
(ii) as
soon
as available and in any event within 120 days after the end of each fiscal
year
of the Borrower, a copy of the annual report for such year for the Borrower
and
the Subsidiaries, containing Consolidated financial statements for such year
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 Borrower, substantially in the form of Exhibit
F hereto, setting forth in reasonable detail the calculation of the Borrower’s
compliance with Section 5.01(j) and stating that no Event of Default and no
event that, with the giving of notice or lapse of time or both, would constitute
an Event of Default has occurred and is continuing, or if an Event of Default
or
such event has occurred and is continuing, a statement setting forth details
of
such Event of Default or event and the action that the Borrower has taken and
proposes to take with respect thereto;
(iii) promptly
after the sending or filing thereof, copies of all reports that the Borrower
sends to any of its security holders and copies of all reports and registration
statements that the Borrower or any Subsidiary files with the Securities and
Exchange Commission or any national securities exchange, to the extent not
delivered by the Borrower 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
Event of Default or any event that, with the giving of notice or lapse of time,
or both, would constitute an Event of Default, a statement of the chief
financial officer or treasurer of the Borrower setting forth details of such
Event of Default or event and the action that the Borrower proposes to take
with
respect thereto;
(v) immediately
upon obtaining knowledge thereof, notice of any change in either the Xxxxx’x
Rating or the S&P Rating;
(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 Borrower’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;
(viii) from
time
to time upon the reasonable request of any Lender or any Issuing Bank through
the Administrative Agent, all information necessary for such Lender or Issuing
Bank to comply with the Patriot Act; and
(ix) such
other information respecting the condition or operations, financial or
otherwise, of the Borrower or any Subsidiary as any Lender or any Issuing Bank
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 Borrower
and
its Subsidiaries to Total Capitalization of not more than .68:1.0.
(k) Use
of Proceeds.
Use the
proceeds of each Advance solely for general corporate purposes (including,
in
each case, 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 and 14 of the Exchange
Act.
(l) Ownership
of Subsidiaries.
Own at
all times, directly or indirectly and free and clear of all liens and
encumbrances, 100% of the common stock of CP&L and Florida
Power.
SECTION
5.02. Negative
Covenants.
So
long
as there shall be any Outstanding Credits, any other amount payable by the
Borrower hereunder shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower will not, without the written consent of the Majority
Lenders:
(a) Liens,
Etc. Create,
incur, assume or suffer to exist, or permit any Subsidiary 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 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 and the Florida Power Mortgage,
(ii) liens and security interests against the fuel used by the Borrower in
its power generating operations in favor of the suppliers thereof and (iii)
liens, mortgages and security interests securing other Indebtedness of the
Borrower and its Subsidiaries not exceeding $500,000,000 in the
aggregate.
(b) Indebtedness.
Create,
incur, assume or suffer to exist, or permit any Subsidiary 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 subsection 5.02(a),
(iii) Indebtedness evidenced by the First Mortgage Bonds and the Florida
Power Mortgage Bonds and (iv) unsecured Indebtedness, including guarantees
issued in connection with the financing of pollution control facilities operated
by CP&L, FPC or Florida Power, guarantees of Indebtedness incurred by any
wholly-owned Subsidiary and guarantees of debt securities issued by any
financing Subsidiary established to secure debt financing in the offshore
markets.
(c) Lease
Obligations.
Create,
incur, assume or suffer to exist, or permit any Subsidiary 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
that would cause the direct or contingent Consolidated liabilities of the
Borrower and its Subsidiaries in respect of all such obligations payable in
any
calendar year to exceed 10% of the Consolidated operating revenues of the
Borrower 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 that
constitutes an Event of Default or an event that with the giving of notice
or
lapse of time, or both, would constitute an Event of Default, and (ii) in the
case of any such merger to which the Borrower is a party, such other Person
is a
utility company and the resulting or surviving corporation, if not the Borrower,
(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 Borrower contained in this Agreement.
(e) Sales,
Etc. of Assets.
Sell,
lease, transfer or otherwise dispose of, or permit any Subsidiary to sell,
lease, transfer or otherwise dispose of, any of its assets, other than the
following sales: (i) sales of generating capacity to the wholesale customers
of
the Borrower and the Subsidiaries, (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) the Portfolio Transaction, (vi) sales of
investments in securities with a maturity of less than one year, (vii) the
sale
of the 925 XX Xxxxx facility (or
the
equity interests of any Person the assets of which consist of the 925 XX Xxxxx
facility),
the 320
XX XxXxxx facility (or the equity interests of any Person the assets of which
consist of the 320 XX XxXxxx facility), all coal mines and assets used in their
operation and all river terminal facilities and assets used in their operation
and (viii) other sales not exceeding $250,000,000 in the aggregate in any fiscal
year of the Borrower.
(f) 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).
(g) Change
in Nature of Business.
Engage,
or cause or permit CP&L or Florida Power to engage, in a material manner in
businesses other than those in which they are engaged on the date hereof and
businesses reasonably related thereto.
(h) Hostile
Acquisitions.
Use any
proceeds of any Extension of Credit in connection with any Hostile
Acquisition.
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
Borrower shall fail to pay any principal of any Advance or LC Disbursement
when
due, or shall fail to pay any interest on the principal amount of any Advance
or
LC Disbursement or any fees or other amount payable hereunder within five
Business Days after such interest or fees or other amount shall become due;
or
(b) Any
representation or warranty made by the Borrower herein or by the Borrower (or
any of its officers) in any document delivered pursuant to this Agreement shall
prove to have been incorrect in any material respect when made or deemed made;
or
(c) The
Borrower shall fail to perform or observe any other term, covenant or agreement
contained in Section 5.01(b), 5.01(i)(iv), 5.01(j), 5.01(l) or 5.02 on its
part
to be performed or observed; or the Borrower 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 Borrower by
the
Administrative Agent or any Lender; or
(d) The
Borrower or any Significant Subsidiary shall fail to pay any amount in respect
of any Indebtedness in excess of $50,000,000 (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 $50,000,000 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
(g) Any
Termination Event with respect to a Plan shall have occurred, and, 30 days
after
the occurrence thereof, (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
Borrower 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 Borrower, (i) declare
the
Commitments and the obligation of each Lender and each Issuing Bank to make
Extensions of Credit to be terminated, whereupon the same shall forthwith
terminate, (ii) declare the Outstanding Credits, all interest thereon and all
other amounts payable under this Agreement to be forthwith due and payable,
whereupon such principal amount, 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
Borrower, and (iii) exercise the remedies specified in Section 2.16(g);
provided,
however,
that in
the event of an actual or deemed entry of an order for relief with respect
to
the Borrower or any Subsidiary under the Federal Bankruptcy Code, (A) the
obligation of each Lender and each Issuing Bank to make Extensions of Credit
shall automatically be terminated and (B) Outstanding Credits, all such interest
and all such other 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 Borrower.
ARTICLE
VII
THE
ADMINISTRATIVE AGENT
AND
THE ISSUING BANKS
SECTION
7.01. Authorization
and Action.
(a) Each
Issuing Bank and each Lender hereby appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Administrative Agent by the terms
hereof, together with such powers as are reasonably provided for by this
Agreement (including, without limitation, enforcement or collection of the
Advances), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Majority Lenders, and such instructions shall
be
binding upon every Issuing Bank and all Lenders; provided,
however,
that
the Administrative Agent shall not be required to take any action that exposes
the Administrative Agent to personal liability or that is contrary to this
Agreement or applicable law.
(b) Each
Issuing Bank shall act on behalf of the Lenders with respect to any Letters
of
Credit issued by it and the documents associated therewith until such time
and
except for so long as the Administrative Agent may agree at the request of
the
Majority Lenders to act for such Issuing Bank with respect thereto; provided,
that
such Issuing Bank shall have all the benefits and immunities (i) provided to
the
Administrative Agent in this Article VII with respect to any acts taken or
omissions suffered by each Issuing Bank in connection with Letters of Credit
issued by it or proposed to be issued by it and the application and agreements
for letters of credit pertaining to the Letters of Credit as fully as if the
term “Administrative Agent” as used in this Article VII included such Issuing
Bank with respect to such acts or omissions and (ii) as additionally provided
in
this Agreement with respect to such Issuing Bank.
(c) In
the
event that Citibank or any of its Affiliates shall be or become an indenture
trustee under the Trust Indenture Act of 1939 (as amended, the “Trust
Indenture Act”)
in
respect of any securities issued or guaranteed by the Borrower, the parties
hereto acknowledge and agree that any payment or property received in
satisfaction of or in respect of any obligation of the Borrower hereunder by
or
on behalf of Citibank in its capacity as the Administrative Agent for the
benefit of any Lender or Issuing Bank (other than Citibank or an Affiliate
of
Citibank) and that is applied in accordance with this Agreement shall be deemed
to be exempt from the requirements of Section 311 of the Trust Indenture Act
pursuant to Section 311(b)(3) of the Trust Indenture Act.
SECTION
7.02. The
Administrative Agent’s Reliance, Etc.
Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by each or any
of
them under or in connection with this Agreement, except for their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (i) may
consult with legal counsel (including counsel for the Borrower), independent
public accountants and other experts selected by it and shall not be liable
for
any action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts; (ii) makes no warranty
or
representation to any Issuing Bank or any Lender and shall not be responsible
to
any Issuing Bank or any Lender for any statements, warranties or representations
made in or in connection with this Agreement; (iii) shall not have any duty
to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of this Agreement on the part of the Borrower or to
inspect the property (including the books and records) of the Borrower; (iv)
shall not be responsible to any Issuing Bank or any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or
value
of this Agreement or any other instrument or document furnished pursuant hereto;
and (v) shall incur no liability under or in respect of this Agreement by acting
upon any notice, consent, certificate or other instrument or writing (which
may
be by telegram, telecopy or e-mail) believed by it to be genuine and signed
or
sent by the proper party or parties.
SECTION
7.03. The
Administrative Agent and its Affiliates.
With
respect to its Commitments and, the Advances made by it, the Administrative
Agent shall have the same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not an Administrative Agent;
and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated,
include each Agent in its individual capacity, as applicable. The Administrative
Agent and its Affiliates may accept deposits from, lend money to, act as trustee
under indentures of, and generally engage in any kind of business with, the
Borrower, any Subsidiary and any Person who may do business with or own
securities of the Borrower or any Subsidiary, all as if the Administrative
Agent
were not the Administrative Agent and without any duty to account therefor
to
the Lenders.
SECTION
7.04. Lender
Credit Decision.
Each
Issuing Bank and each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent, any other Issuing Bank or any other
Lender (as applicable) and based on the financial statements referred to in
Section 4.01(e) and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Issuing Bank and each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent, any other
Issuing Bank 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.
SECTION
7.05. Indemnification.
The
Lenders agree to indemnify the Administrative Agent (to the extent not
reimbursed by the Borrower) and each Issuing Bank, ratably according to the
respective principal amounts of the Outstanding Credits then held by each of
them (or if there are no Outstanding Credits at the time, ratably according
to
the respective amounts of their Commitments), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may
be
imposed on, incurred by, or asserted against the Administrative Agent and such
Issuing Bank in any way relating to or arising out of this Agreement or any
action taken or omitted by the Administrative Agent or such Issuing Bank (as
the
case may be) under this Agreement; provided
that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent’s or such Issuing Bank’s gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Administrative Agent or such Issuing Bank (as
the
case may be) promptly upon demand for its ratable share of any out-of-pocket
expenses (including reasonable counsel fees) incurred by the Administrative
Agent or such Issuing Bank (as the case may be) in connection with the
preparation, execution, administration, or enforcement of, or legal advice
in
respect of rights or responsibility under, this Agreement, to the extent that
the Administrative Agent or such Issuing Bank (as the case may be) is not
reimbursed for such expenses by the Borrower.
SECTION
7.06. Successor
Administrative Agent.
The
Administrative Agent may resign at any time by giving written notice thereof
to
the Lenders, each Issuing Bank and the Borrower and may be removed at any time
with or without cause by the Majority Lenders. Upon any such resignation or
removal, the Majority Lenders shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been
so
appointed by the Majority Lenders, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent’s giving of notice of
resignation or the Majority Lenders’ removal of the retiring Administrative
Agent, the Administrative Agent may appoint a successor Administrative Agent,
which shall be a commercial bank organized under the laws of the United States
of America or of any State thereof and having a combined capital and surplus
of
at least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all
the
rights, powers, privileges and duties of the retiring Administrative Agent,
and
the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Administrative Agent’s
resignation or removal hereunder as Administrative Agent, the provisions of
this
Article VII shall inure to its benefit as to any actions taken or omitted to
be
taken by it while it was Administrative Agent under this Agreement.
SECTION
7.07. Appointment
and Resignation of Issuing Banks.
The
Borrower may, from time to time, appoint one or more Lenders (or Affiliates
thereof) to act as additional Issuing Banks under this Agreement. Any such
appointment shall be evidenced by a written agreement between the Borrower
and
any such Issuing Bank, setting forth such Issuing Bank’s agreement to act in
such capacity, the LC Commitment of such Issuing Bank and information required
for delivery of notices to such LC Issuing Bank pursuant to Section 8.02. Upon
the delivery of a duly executed copy of such agreement to the Administrative
Agent, such Issuing Bank shall become vested with all the rights, powers,
privileges and duties of an “Issuing Bank” under this Agreement. In addition,
any Issuing Bank may resign as an Issuing Bank under this Agreement, with the
written consent of the Borrower and upon notice of such resignation to the
Administrative Agent, at any time that no Letters of Credit issued by such
Issuing Bank and no LC Disbursements payable to such Issuing Bank are
outstanding. The Administrative Agent shall give prompt notice to each Lender
of
the appointment or resignation of any Issuing Bank pursuant to this Section
7.07.
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 Borrower therefrom, shall in any event be effective unless
the
same shall be in writing and signed by the Majority Lenders, in the case of
any
such amendment, waiver or consent of or in respect of this Agreement, 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: (i) waive any of the conditions specified
in Section 3.01 or 3.02, (ii) increase the Commitment of any Lender or
subject any Lender to any additional obligations, (iii) reduce, or waive
the payment of, the principal of, or interest on, the Advances, reimbursement
obligations in respect of LC Disbursements, or any fees or other amounts payable
to the Lenders ratably hereunder, (iv) postpone any date fixed for any
payment of principal of, or interest on, the Advances, reimbursement obligations
in respect of LC Disbursements, or any fees or other amounts payable to the
Lenders ratably hereunder, (v) 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, or (vi) amend, waive, or in any way modify or
suspend any provision requiring the pro rata application of payments or of
Section 2.15 or of this Section 8.01; provided
further,
that no
amendment, waiver or consent shall, unless in writing and signed by each Lender
affected thereby, reduce, waive or postpone the date of payment of any amount
payable to such Lender; and provided,
further,
that
(A) no amendment, waiver or consent shall, unless in writing and signed by
the Administrative Agent and each Issuing Bank in addition to the Lenders
required hereinabove to take such action, affect the rights or duties of such
Administrative Agent or each Issuing Bank under this Agreement, (B) this
Agreement may be amended and restated without the consent of any Lender, the
Administrative Agent or any Issuing Bank if, upon giving effect to such
amendment and restatement, such Lender, Administrative Agent or such Issuing
Bank, as the case may be, shall no longer be a party to this Agreement (as
so
amended and restated) or have any Commitment or other obligation hereunder
and
shall have been paid in full all amounts payable hereunder to such Lender,
the
Administrative Agent or such Issuing Bank, as the case may be, and (C) any
Issuing Bank may be appointed and may resign pursuant to Section 7.07, and
the
LC Commitment of any Issuing Bank may be increased or decreased pursuant to
a
written agreement between the Borrower and such Issuing Bank, a copy of which
shall be delivered to the Administrative Agent, in each case, without the
consent of any Lender.
SECTION
8.02. Notices,
Etc.
All
notices and other communications provided for hereunder shall, unless otherwise
stated herein, be in writing (including telegraphic communication) and mailed,
telecopied, e-mailed or delivered, if to the Borrower, at its address at
410
S.
Wilmington Street, PEB 19A3, Xxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Assistant
Treasurer, Treasury Department, Facsimile no.: (000) 000-0000, e-mail:
xxxxxx.xxxxxxxxxxx@xxxxxxx.xxx; if to any Lender, at its Domestic Lending Office
set forth opposite its name on Schedule I hereto; if to SunTrust Bank, as
Issuing Bank, at its address at 00
Xxxx
Xxxxx, 00xx
Xxxxx,
Xxxxxxx, Xxxxxxx, 00000, Attention: International Operations, SunTrust Bank,
Facsimile no.: (000) 000-0000;
and if
to the Administrative Agent, at its address at Xxx Xxxxx Xxx, Xxxxx 000, Xxx
Xxxxxx, Xxxxxxxx 00000, Attention: Bank Loan Syndications, Facsimile no.: (000)
000-0000; or, as to each party, at such other address as shall be designated
by
such party in a written notice to the other parties or, in the case of any
Lender, to the Administrative Agent, each Issuing Bank and the Borrower. All
such notices and communications shall be effective when received by the
addressee thereof.
SECTION
8.03. No
Waiver; Remedies.
No
failure on the part of any Lender, any Issuing Bank or the Administrative Agent
to exercise, and no delay in exercising, any right hereunder shall operate
as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION
8.04. Costs,
Expenses, Taxes and Indemnification.
(a) The
Borrower agrees to pay on demand all costs and expenses of the Administrative
Agent (and as described in clause (iv) below, the Lenders and each Issuing
Bank)
in connection with (i)
the
preparation, execution, negotiation, syndication and delivery of this Agreement
and the other documents to be delivered hereunder, (ii) the first Borrowing
under this Agreement, (iii) any modification, amendment or supplement to this
Agreement and the other documents to be delivered hereunder and (iv) the
enforcement of the rights and remedies of the Lenders, each Issuing Bank and
the
Administrative Agent under this Agreement and the other documents to be
delivered hereunder (whether through negotiations or legal proceedings), all
the
above costs and expenses to include, without limitation, the reasonable fees
and
out-of-pocket expenses of counsel for the Administrative Agent, each Issuing
Bank and each of the Lenders with respect thereto. In addition, the Borrower
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, each Issuing Bank 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
(i)
due to payments made by the Borrower due to the 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, or (ii) due to any Conversion of Eurodollar Advance other than on
the
last day of an Interest Period pursuant to Section 2.12, the Borrower 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 that 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. In
addition, if the Borrower fails to prepay any Advance on the date for which
notice of prepayment has been given, the Borrower shall, upon demand by any
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 losses, costs or expenses (including loss of
anticipated profits) that it may reasonably incur as a result of such prepayment
not having been made on the date specified by the Borrower for such
prepayment.
(c) Any
and
all payments by the Borrower hereunder shall be made, in accordance with Section
2.13, free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding,
in the
case of each Lender, each Issuing Bank and the Administrative Agent, taxes
imposed on its income, and franchise taxes imposed on it, by the jurisdiction
under the laws of which such Lender, such Issuing Bank 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 its income, and franchise
taxes imposed on it, 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
Borrower shall be required by law to deduct any Taxes from or in respect of
any
sum payable hereunder to any Lender, any Issuing Bank 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, such Issuing Bank 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 Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law.
(d) The
Borrower will indemnify each Lender, each Issuing Bank 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, such Issuing Bank 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
asserted. This indemnification shall be made within 30 days from the date such
Lender, such Issuing Bank or the Administrative Agent (as the case may be)
makes
written demand therefor.
(e) Prior
to
the date of the initial Borrowing or on the date of the Assignment and
Acceptance 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 Acceptance, or
on
the date that any Eligible Assignee becomes an Additional Lender pursuant to
Section 2.04(b) and from time to time thereafter if requested by the Borrower
or
the Administrative Agent, each Lender organized under the laws of a jurisdiction
outside the United States shall provide the Administrative Agent and the
Borrower 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 Borrower in writing to that
effect. Unless the Borrower and the Administrative Agent have received forms
or
other documents satisfactory to them indicating that payments hereunder are
not
subject to United States withholding tax, the Borrower 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 Section 8.04(c)
or
(d) 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 the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue 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).
(g) If
the
Borrower makes any additional payment to any Issuing Bank or any Lender pursuant
to Sections 8.04(c) and (d) in respect of any Taxes, and such Issuing Bank
or
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 Issuing Bank or 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 Borrower such amount as such Issuing Bank
or
such Lender shall have determined to be attributable to the deduction or
withholding of such Taxes. If such Issuing Bank or 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 Borrower shall upon demand of such Issuing Bank or such
Lender promptly repay the amount of such overpayment. Any determination made
by
such Issuing Bank or 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 Issuing Bank or 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 Issuing Bank or any Lender.
(h) The
Borrower hereby agrees to indemnify and hold harmless each Lender, each Issuing
Bank, the Arrangers, the Syndication Agent, the Administrative Agent, counsel
to
the Administrative Agent and their respective officers, directors, partners,
employees, Affiliates and advisors (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 the execution, delivery, or performance
of
this Agreement, or the use by the Borrower of the proceeds of any Extension
of
Credit (including any refusal by any Issuing Bank to honor a demand for payment
under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), except
to the extent that such claims, damages, losses, liabilities, costs, or expenses
are determined in a final non-appealable judgment by a court of competent
jurisdiction to have resulted solely from the gross negligence or willful
misconduct of the party seeking indemnification. The Borrower also agrees not
to
assert any claim against any Indemnified Party on any theory of liability for
special or punitive damages arising out of or otherwise relating to this
Agreement, any of the transactions contemplated herein or the actual or proposed
use of the proceeds of any Extension of Credit.
(i) Without
prejudice to the survival of any other agreement of the Borrower hereunder,
the
agreements and obligations of the Borrower contained in this Section 8.04 shall
survive the payment in full of principal and interest hereunder and the
termination of the 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 Outstanding Credits due
and
payable pursuant to the provisions of Section 6.01, each Lender and each Issuing
Bank are 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 or such Issuing Bank to or for
the
credit or the account of the Borrower now or hereafter existing under this
Agreement, irrespective of whether or not such Lender or such Issuing Bank
shall
have made any demand under this Agreement and although such obligations may
be
unmatured. Each Lender and each Issuing Bank agree promptly to notify the
Borrower after any such set-off and application made by such Lender or such
Issuing Bank; provided
that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender and each Issuing Bank under this Section
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) that such Lender or such Issuing Bank may
have.
SECTION
8.06. Binding
Effect.
This
Agreement shall become effective when it shall have been executed by the
Borrower and the Administrative Agent and when the Administrative Agent shall
have been notified by each Lender and each Issuing Bank that such Lender or
such
Issuing Bank has executed it and thereafter shall be binding upon and inure
to
the benefit of the Borrower, the Administrative Agent, each Issuing Bank and
each Lender and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights hereunder or any interest
herein without the prior written consent of each Issuing Bank and each
Lender.
SECTION
8.07. Assignments
and Participations.
(a) Each
Lender may, with the consent of the Administrative Agent, each Issuing Bank
and
the Borrower (each such consent not to be unreasonably withheld or delayed
and,
in the case of the Borrower, such consent shall not be required if an Event
of
Default has occurred and is continuing), assign to one or more banks or other
entities 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
(i) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement, (ii) the
amount of the Commitment of the assigning Lender being assigned pursuant to
each
such assignment (determined as of the date of the Assignment and Acceptance
with
respect to such assignment) shall in no event be less than the lesser of
(A) $10,000,000 and (B) all of such Lender’s rights and obligations
and, if the preceding clause (A) is applicable, shall be an integral multiple
of
$1,000,000, (iii) each such assignment shall be to an Eligible Assignee,
and (iv) 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 Acceptance and such parties (other than when Citibank is an
assigning party) shall also deliver to the Administrative Agent a processing
and
recordation fee of $3,500. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, (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 Acceptance, 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 Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance 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).
(b) By
executing and delivering an Assignment and Acceptance, 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 Acceptance, 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
Borrower or the performance or observance by the Borrower 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 financial statements referred to
in
Section 4.01(e) 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 Acceptance; (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; (vi) such assignee appoints and authorizes the Administrative Agent
to
take such action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all of
the
obligations that by the terms of this Agreement are required to be performed
by
it as a Lender.
(c) The
Administrative Agent shall maintain at its address referred to in Section 8.02
a
copy of each Assignment and Acceptance (and copies of the related consents
of
the Borrower 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 Borrower, 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. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time
to
time upon reasonable prior notice.
(d) Upon
its
receipt of an Assignment and Acceptance executed by an assigning Lender and
an
assignee representing that it is an Eligible Assignee, the Administrative Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit B hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower.
(e) Each
Lender may assign to one or more banks or other entities any Advance made by
it.
(f) Each
Lender may sell participations to one or more banks or other entities 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, the Advances owing
to
it); provided,
however,
that (i)
such Lender’s obligations under this Agreement (including, without limitation,
its Commitment to the Borrower 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 promissory note held pursuant to Section 2.01(b) for all purposes of
this Agreement, (iv) the Borrower, each Issuing Bank, 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) the holder of any such participation, other than an Affiliate
of such Lender, shall not be entitled to require such Lender to take or omit
to
take any action hereunder, except action (A) extending the time for payment
of
interest on, or the final maturity of any portion of the principal amount of,
the Advances or (B) reducing the principal amount of or the rate of interest
payable on the Advances. 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 2.07, 2.11 and 8.04(b) 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; 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.
(g) If
(x)
any Lender shall be a Declining Lender or (y) any Lender (or any bank, financial
institution, or other entity to which such Lender has sold a participation)
shall make any demand for payment under Section 2.11(b), then within the time
period specified in Section 2.15(b) or within 30 days after any such demand
(if,
but only if, such demanded payment has been made by the Borrower) (as
applicable), the Borrower may, with the approval of the Administrative Agent
(which approval shall not be unreasonably withheld) demand that such Lender
assign in accordance with this Section 8.07 to one or more Eligible Assignees
designated by the Borrower 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 Event of Default or event that, with the passage of time or the giving of
notice, or both, would constitute an Event of Default shall then have occurred
and be continuing, (ii) the Borrower shall have satisfied all its presently
due
obligations to such Lender under this Agreement, and (iii) if such Eligible
Assignee designated by the Borrower is not an existing Lender on the date of
such demand, the Borrower shall have delivered to the Administrative Agent
an
administrative fee of $3,500 and (iv) in the case of any assignment by a
Declining Lender, such Declining Lender shall have consented to such assignment.
If any such Eligible Assignee designated by the Borrower shall fail to
consummate such assignment on terms acceptable to such Lender, or if the
Borrower shall fail to designate any such Eligible Assignees for all or part
of
such Lender’s Commitment or Advances, then such demand by the Borrower shall
become ineffective; it being understood for purposes of this subsection (g)
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 Borrower, if such Eligible Assignee (i)
shall agree to such assignment by entering into an Assignment and Acceptance
in
substantially the form of Exhibit B hereto with such Lender and (ii) shall
offer
compensation to such Lender in an amount equal to all amounts then owing by
the
Borrower to such Lender hereunder made by the Borrower to such Lender, whether
for principal, interest, fees, costs or expenses (other than the demanded
payment referred to above and payable by the Borrower as a condition to the
Borrower’s right to demand such assignment), or otherwise.
(h) 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 Borrower furnished to such Lender by or on behalf of the
Borrower; provided
that,
prior to any such disclosure, the assignee or participant or proposed assignee
or participant shall agree to preserve the confidentiality of any confidential
information relating to the Borrower received by it from such
Lender.
(i) Anything
in this Section 8.07 to the contrary notwithstanding, any Lender may
(i) 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;
provided,
that no
such assignment shall release the assigning Lender from its obligations
hereunder; or (ii) assign its Commitments, Advances and other rights and
obligations hereunder to any of its Affiliates upon notice to, but without
the
consent of, the Borrower and the Administrative Agent.
(j) 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, each Issuing Bank and the Borrower,
the option to provide to the Borrower all or any part of any Advance that such
Granting Lender would otherwise be obligated to make to the Borrower 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 and
(iii) no SPC or Granting Lender shall be entitled to receive any greater
amount pursuant to Section 2.07 or 2.11 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 Borrower. 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 Borrower, the Administrative Agent,
each
Issuing Bank 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
Borrower, the Administrative Agent, such Issuing Bank 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. Waiver
of Consequential Damages.
To
the
fullest extent permitted by applicable law, the Borrower 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, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any
Extension of Credit or the use of proceeds thereof. No Indemnified Person
referred to in Section 8.04(h) 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 other Loan Documents or the
transactions contemplated hereby or thereby.
SECTION
8.09. USA
PATRIOT Act Notice.
Each
Lender that is subject to the Patriot Act, each Issuing Bank and the
Administration Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrower pursuant to the requirements of the Patriot Act that
it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow such Lender, such Issuing Bank or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the Patriot
Act.
SECTION
8.10. Tax
Disclosure.
Notwithstanding
any agreement between the parties hereto to the contrary, the Borrower (and
each
employee, representative, or other agent of the Borrower) may disclose to any
and all other Persons, without limitation of any kind, the tax treatment and
tax
structure of this Agreement and all materials of any kind (including opinions
or
other tax analyses) that are provided to the Borrower relating to such tax
treatment and tax structure; provided,
however,
that
such disclosure may not be made to the extent required to be kept confidential
to comply with any applicable federal or state securities laws.
SECTION
8.11. Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York. The Borrower (i)
irrevocably submits to the non-exclusive jurisdiction of any New York State
court or Federal court sitting in New York City in any action arising out of
this Agreement, (ii) agrees that all claims in such action may be decided in
such court, (iii) waives, to the fullest extent it may effectively do so, the
defense of an inconvenient forum and (iv) consents to the service of process
by
mail. A final judgment in any such action shall be conclusive and may be
enforced in other jurisdictions. Nothing herein shall affect the right of any
party to serve legal process in any manner permitted by law or affect its right
to bring any action in any other court.
SECTION
8.12. WAIVER
OF JURY TRIAL.
THE
BORROWER, THE ADMINISTRATIVE AGENT, EACH ISSUING BANK AND EACH LENDER EACH
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY AND LAWFULLY
DO SO, ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING TO THIS AGREEMENT
IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER INSTRUMENT OR DOCUMENT DELIVERED HEREUNDER OR
THEREUNDER.
SECTION
8.13. 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
8.14. Severability.
Any
provision of this Agreement that 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
8.15. 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
8.16. 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.
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.
PROGRESS
ENERGY, INC.
By
/s/
Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Treasurer
CITIBANK,
N.A., as Administrative Agent
and
Lender
By
/s/
Xxxxxx X. Xxxx
Xxxxxx J. Xxxx
Director
JPMORGAN
CHASE BANK, N.A.
By
/s/
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Vice
President
SUNTRUST
BANK,
as
Initial Issuing Bank and Lender
By
/s/
Xxxxxx X. Xxxxxxxxxxx
Xxxxxx
X.
Xxxxxxxxxxx
Vice
President
THE
BANK
OF TOKYO-MITSUBISHI
UFJ,
LTD., NEW YORK BRANCH
By
/s/
Xxxxx Xxx
Xxxxx Xxx
Authorized
Signatory
BARCLAYS
BANK PLC
By
/s/
Sydney X. Xxxxxx
Sydney
X.
Xxxxxx
Director
BANK
OF
AMERICA, N.A.
By
/s/
Xxxxxxxx Xxxxxxxx
Xxxxxxxx
Xxxxxxxx
Senior
Vice
President
SIGNATURE
PAGE TO 2006 PROGRESS ENERGY CREDIT AGREEMENT
THE
ROYAL
BANK OF SCOTLAND PLC
By
/s/
Xxxxx Xxxxxxxx
Xxxxx
Xxxxxxxx
Vice President
SIGNATURE
PAGE TO 2006 PROGRESS ENERGY CREDIT AGREEMENT
WACHOVIA
BANK, N.A.
By
/s/
Xxxxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxx
Assistant
Vice
President
SIGNATURE
PAGE TO 2006 PROGRESS ENERGY CREDIT AGREEMENT
BNP
PARIBAS
By
/s/
Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Managing Director
By
/s/
Xxxxxx Xxxxx
Xxxxxx Xxxxx
Director
SIGNATURE
PAGE TO 2006 PROGRESS ENERGY CREDIT AGREEMENT
CALYON
NEW YORK BRANCH
By
/s/
Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
Managing Director
By
/s/
Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Vice
President
SIGNATURE
PAGE TO 2006 PROGRESS ENERGY CREDIT AGREEMENT
DEUTSCHE
BANK AG
NEW
YORK
BRANCH
By
/s/
Xxxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxxxxx
Director
By
/s/
Xxxxxx Xxxxx
Xxxxxx Xxxxx
Vice President
SIGNATURE
PAGE TO 2006 PROGRESS ENERGY CREDIT AGREEMENT
XXXXXX
BROTHERS BANK, FSB
By
/s/
Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Senior
Vice
President
SIGNATURE
PAGE TO 2006 PROGRESS ENERGY CREDIT AGREEMENT
UBS
LOAN
FINANCE LLC
By
/s/
Xxxxxxx X. Xxxxxx
Xxxxxxx
X.
Xxxxxx
Director
By
/s/
Xxxx X. Xxxx
Xxxx X. Xxxx
Associate Director
SIGNATURE
PAGE TO 2006 PROGRESS ENERGY CREDIT AGREEMENT
XXXXXXX STREET COMMITMENT
CORPORATION
By
/s/
Xxxx Xxxxxx
Xxxx
Xxxxxx
Assistant
Vice
President
SIGNATURE
PAGE TO 2006 PROGRESS ENERGY CREDIT AGREEMENT
THE
BANK
OF NEW YORK
By
/s/
Xxxxx Xxxxxxxxxxx
Xxxxx Xxxxxxxxxxx
Vice
President
SIGNATURE
PAGE TO 2006 PROGRESS ENERGY CREDIT AGREEMENT
S-
MELLON
BANK, N.A.
By
/s/
Xxxxxx X. Xxxxxxxxxx, Xx.
Xxxxxx X. Xxxxxxxxxx, Xx.
Assistant
Vice
President
SIGNATURE
PAGE TO 2006 PROGRESS ENERGY CREDIT AGREEMENT
SCHEDULE
I
LIST
OF COMMITMENTS AND APPLICABLE LENDING OFFICES
|
Name
of Bank
|
Eurodollar
Lending
Office
|
Domestic
Lending
Office
|
Commitment
|
|
Citibank,
N.A.
|
Xxx
Xxxxx Xxx, Xxx. 000
Xxx
Xxxxxx, Xxxxxxxx 00000
Attention:
Bank Loan Syndications
|
Same
as Eurodollar Lending Office
|
$141,000,000
|
|
JPMorgan
Chase Bank, N.A.
|
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 Eurodollar Lending Office
|
$141,000,000
|
|
The
Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch
|
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 Eurodollar Lending Office
|
$120,000,000
|
|
Barclays
Bank PLC
|
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
|
Same
as Eurodollar Lending Office
|
$100,000,000
|
|
Bank
of America, N.A.
|
000
X. Xxxxx Xx.
XX0-000-00-00
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxxxxxx Xxxxxxxxx
|
Same
as Eurodollar Lending Office
|
$98,000,000
|
|
The
Royal Bank of Scotland plc
|
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 Eurodollar Lending Office
|
$92,000,000
|
|
Wachovia
Bank, N.A.
|
Wachovia
Bank
0
Xxxxxxx Xxxx
Xxxxxx
XX0X-0000
XXX
|
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.rigge xxxxx@xxxxxxxx.xxx
|
$53,000,000
|
|
SunTrust
Bank
|
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 Eurodollar Lending Office
|
$50,000,000
|
|
BNP
Paribas
|
000
Xxxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
|
Same
as Eurodollar Lending Office
|
$50,000,000
|
|
Calyon
New York Branch
|
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxx Xxxxx
|
Same
as Eurodollar Lending Office
|
$50,000,000
|
|
Deutsche
Bank AG New York Branch
|
00
Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
|
Same
as Eurodollar Lending Office
|
$50,000,000
|
|
Xxxxxx
Brothers Bank, FSB
|
000
0xx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
|
Same
as Eurodollar Lending Office
|
$50,000,000
|
|
UBS
Loan Finance LLC
|
000
Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx,
XX 00000
Attention:
Xxxxx Xxxxxx
|
Same
as Eurodollar Lending Office
|
$50,000,000
|
|
Xxxxxxx
Street Commitment Corporation
|
00
Xxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx, XX
Attention:
Xxxxxx X. Xxxxx
|
Same
as Eurodollar Lending Office
|
$50,000,000
|
|
The
Bank of New York
|
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 Eurodollar Lending Office
|
$25,000,000
|
|
Mellon
Bank, N.A.
|
One
Mellon Center 151-4530
Xxxxxxxxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxxxxx
|
Same
as Eurodollar Lending Office
|
$10,000,000
|
SCHEDULE
II
ADOPTED
LETTERS OF CREDIT
|
ISSUING
BANK: SUNTRUST
BANK
|
||
|
BORROWER:
PROGRESS
ENERGY, INC.
|
||
|
Letter
of Credit Reference
|
Letter
of Credit Face Amount
|
Expiry
Date
|
|
F840430
|
$16,300,000.00
|
1/31/2007
|
|
F840892
|
$395,000.00
|
2/25/2007
|
|
F840893
|
$80,000.00
|
1/12/2007
|
|
F841182
|
$1,350,000.00
|
5/1/2007
|
|
F841469
|
$250,000.00
|
6/24/2007
|
|
F841643
|
$500,000.00
|
7/31/2006
|
|
F841697
|
$1,000,000.00
|
7/31/2006
|
|
F841863
|
$1,250,000.00
|
9/1/2006
|
|
F841910
|
$1,800,000.00
|
9/15/2006
|
|
F841916
|
$1,800,000.00
|
9/15/2006
|
|
F842084
|
$175,000.00
|
10/31/2006
|
|
F842190
|
$50,000.00
|
11/21/2006
|
|
F842197
|
$750,000.00
|
11/13/2006
|
|
F842246
|
$100,000.00
|
11/8/2006
|
|
F842334
|
$2,800,000.00
|
11/8/2006
|
|
F842336
|
$3,072,930.00
|
11/8/2006
|
|
F843042
|
$318,000.00
|
11/8/2006
|
|
F843225
|
$175,000.00
|
11/8/2006
|
|
F844059
|
$575,966.00
|
11/1/2006
|
|
F844115
|
$378,978.00
|
12/1/2006
|
|
F848138
|
$11,325,000.00
|
10/1/2007
|
|
F848139
|
$11,287,500.00
|
10/1/2007
|
|
F848307
|
$16,350,000.00
|
10/1/2007
|
EXHIBIT
A-1
Form
of Notice of Borrowing
NOTICE
OF
BORROWING
[Date]
Citibank,
N.A., as Administrative Agent
for
the
Lenders parties to the
Agreement
referred to below
Xxx
Xxxxx
Xxx, Xxxxx 000
Xxx
Xxxxxx, Xxxxxxxx 00000
Attention:
Bank Loan Syndications
Ladies
and Gentlemen:
The
undersigned, Progress Energy, Inc., refers to the Credit Agreement, dated as
of
May 3, 2006 (the “Credit
Agreement”,
the
terms defined therein being used herein as therein defined), among the
undersigned, the Lenders thereunder, Citibank, N.A., as Administrative Agent
for
the Lenders, and the Issuing Banks thereunder, 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 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.
The
undersigned hereby certifies that the following statements are true on the
date
hereof, and will be true on the date of the Proposed Borrowing:
(v) the
representations and warranties contained in Section 4.01 (other than the last
sentence of Section 4.01(e) and Section 4.01(f)) of the Credit Agreement are
correct, before and after giving effect to the Proposed Borrowing and to the
application of the proceeds therefrom, as though made on and as of such date;
and (ii) no event has occurred and is continuing, or would result from such
Proposed Borrowing or from the application of the proceeds therefrom, that
constitutes an Event of Default or would constitute an Event of Default but
for
the requirement that notice be given or time elapse or both.
Very
truly yours,
PROGRESS
ENERGY, INC.
By
Name:
Title:
-
EXHIBIT
A-2
Form
of Notice of Conversion
NOTICE
OF
CONVERSION
[Date]
Citibank,
N.A., as Administrative Agent
for
the
Lenders parties to the
Agreement
referred to below
Xxx
Xxxxx
Xxx, Xxxxx 000
Xxx
Xxxxxx, Xxxxxxxx 00000
Attention:
Bank Loan Syndications
Ladies
and Gentlemen:
The
undersigned, Progress Energy, Inc., refers to the Credit Agreement, dated as
of
May 3, 2006 (the “Credit
Agreement”,
the
terms defined therein being used herein as therein defined), among the
undersigned, the Lenders thereunder, Citibank, N.A., as Administrative Agent
for
the Lenders, and SunTrust Bank, and the Issuing Banks thereunder, and hereby
gives you notice pursuant to Section 2.09 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 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, that constitutes an Event of
Default.
Very
truly yours,
PROGRESS
ENERGY, INC.
By
Name:
Title:
EXHIBIT
B
Form
of Assignment and Acceptance
ASSIGNMENT
AND ACCEPTANCE
Dated
,
20___
Reference
is made to the Credit Agreement, dated as of May 3, 2006 (as amended, modified
and supplemented from time to time, the “Credit
Agreement”,
the
terms defined therein being used herein as therein defined), among Progress
Energy, Inc., the Lenders (as defined in the Credit Agreement) thereunder,
Citibank, N.A., as Administrative Agent for the Lenders thereunder (the
“Administrative
Agent”)
and
the Issuing Banks thereunder.
(the
“Assignor”)
and
(the
“Assignee”)
agree
as follows:
1. The
Assignor hereby sells and assigns to the Assignee, and the Assignee hereby
purchases and assumes from the Assignor, that interest in and to all of the
Assignor’s rights and obligations under the Credit Agreement as of the date
hereof that represents the percentage interest specified on Schedule 1 of all
outstanding rights and obligations under the Credit Agreement, including,
without limitation, such interest in the Assignor’s Commitment (to the extent it
has not been terminated), the Advances owing to the Assignor and,
to
the extent permitted by 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
transactions governed thereby, 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
hereby.
After
giving effect to such sale and assignment, the Assignee’s Commitment (if any)
and the amount of the Advances owing to the Assignee will be as set forth in
Section 2 of Schedule 1.
2. The
Assignor (i) represents and warrants that it is the legal and beneficial owner
of the interest being assigned by it hereunder and that such interest is free
and clear of any adverse claim; (ii) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value
of the Credit Agreement or any other instrument or document furnished pursuant
thereto; and (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant
thereto.
3. The
Assignee (i) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements referred to in Section 4.01(e)
thereof 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
Acceptance; (ii) agrees that it will, independently and without reliance upon
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; (iii) confirms that it is an Eligible Assignee; (iv) appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under the Credit Agreement as are delegated to
the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender; [and] (vi) specifies
as its Domestic Lending Office (and address for notices) and Eurodollar Lending
Office the offices set forth beneath its name on the signature pages hereof
[and
(vii) attaches the forms prescribed by the Internal Revenue Service of the
United States certifying as to the Assignee’s status for purposes of determining
exemption from United States withholding taxes with respect to all payments
to
be made to the Assignee under the Credit Agreement or such other documents
as
are necessary to indicate that all such payments are subject to such rates
at a
rate reduced by an applicable tax treaty].1
4. Following
the execution of this Assignment and Acceptance by the Assignor and the
Assignee, it will be delivered to the Administrative Agent for acceptance and
recording by the Administrative Agent. The effective date of this Assignment
and
Acceptance shall be the date of acceptance thereof by the Administrative Agent,
unless otherwise specified on Schedule 1 hereto (the “Effective
Date”).
5. Upon
such
acceptance and recording by the Administrative Agent, as of the Effective Date,
(i) the Assignee shall be a party to the Credit Agreement and, to the extent
provided in this Assignment and Acceptance, have the rights and obligations
of a
Lender thereunder and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
6. Upon
such
acceptance and recording by the Administrative Agent, from and after the
Effective Date, the Administrative Agent shall make all payments under the
Credit Agreement in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and commitment fees with respect
thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement for periods prior to the
Effective Date directly between themselves.
7. This
Assignment and Acceptance shall be governed by, and construed in accordance
with, the laws of the State of New York.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK.]
1If
the
Assignee is organized under the laws of a jurisdiction outside the United
States.
IN
WITNESS WHEREOF, the parties hereto have caused this Assignment and Acceptance
to be executed by their respective officers thereunto duly authorized, as of
the
date first above written, such execution being made on Schedule 1
hereto.
[NAME
OF
ASSIGNOR] [NAME
OF
ASSIGNEE]
By______________________ By______________________
Name: Name:
Title:
Title:
Domestic
Lending Office (and
address
for notices):
[Address]
Eurodollar
Lending Office:
[Address]
Accepted
this
day
of
,
20__
CITIBANK,
N.A., as Administrative Agent
By_________________________
Name:
Title:
SUNTRUST
BANK, as Issuing Bank
By_________________________
Name:
Title:
PROGRESS
ENERGY, INC.2
By__________________________
Name:
Title:
2 If
required.
SCHEDULE
1
TO
ASSIGNMENT
AND ACCEPTANCE
Dated
,
20____
Section
1
Percentage
Interest Assigned:
%
Section
2
Assignee’s
Commitment: $
Aggregate
Outstanding Principal Amount of
Advances
owing to Assignee: $
Section
3
Effective
Date3
3
This
date
should be no earlier than the date of acceptance by the Administrative
Agent.
EXHIBIT
C-1
Form
of Opinion of General Counsel to
Progress
Energy Service Company, LLC
[DATE]
To
each
of the Lenders parties to the Credit
Agreement
referred to below, Citibank, N.A.,
as
Administrative Agent, and the Issuing
Banks
thereunder
Re: Progress
Energy, Inc.
Ladies
and Gentlemen:
This
opinion is furnished to you by me as General Counsel to Progress Energy Service
Company, LLC pursuant to Section 3.01(g) of the Credit Agreement, dated as
of
May 3, 2006 (the “Credit
Agreement”,
the
terms defined therein being used herein as therein defined), among Progress
Energy, Inc. (the “Borrower”),
certain lenders thereunder (the “Lenders”),
Citibank, N.A., as Administrative Agent for the Lenders, and the Issuing Banks
thereunder.
In
connection with the preparation, execution and delivery of the Credit Agreement,
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
Amended and Restated Articles of Incorporation of the Borrower (the
“Charter”).
(4) 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 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
States of North Carolina and Florida, and the opinions expressed herein are
limited to the law of the States of North Carolina and Florida, 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. Each
of
the Borrower and CP&L is a corporation duly organized, validly existing and
in good standing under the laws of the State of North Carolina, and CP&L is
duly qualified to do business and in good standing in the State of South
Carolina. Each of Florida Power and FPC is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida. Progress
Capital 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 Credit
Agreement.
2. The
execution, delivery and performance of the Credit Agreement by the Borrower
have
been duly authorized by all necessary corporate action on the part of the
Borrower and the Credit Agreement has been duly executed and delivered by the
Borrower.
3. The
execution, delivery and performance of the Credit Agreement by the Borrower
will
not (i) violate 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 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 Credit Agreement, other than
a
notification to the North Carolina Utilities Commission, which has been timely
made, and a filing of certain financing orders previously issued by the U.S.
Securities and Exchange Commission with the Federal Energy Regulatory
Commission, which has been timely made.
5. To
my
knowledge, except as described in the reports and registration statements that
the Borrower, CP&L, FPC and Florida Power have filed with the Securities and
Exchange Commission, there are no pending or overtly threatened actions or
proceedings against the Borrower or any of such 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 (i) any other Person that may become a Lender or Issuing
Bank under the Credit Agreement after the date hereof and (ii) Hunton &
Xxxxxxxx LLP and King & Spalding LLP, in connection with their respective
opinions delivered on the date hereof under Section 3.01 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
C-2
Form
of Opinion of Special Counsel for the Borrower
[DATE]
To
each
of the Lenders parties to the Credit
Agreement
referred to below, Citibank, N.A.,
as
Administrative Agent, and the Issuing
Banks
thereunder
Re: Progress
Energy, Inc.
Ladies
and Gentlemen:
This
opinion is furnished to you by us as counsel for Progress Energy, Inc. (the
“Borrower”)
pursuant to Section 3.01(g) of the Credit Agreement, dated as of May 3, 2006
(the “Credit
Agreement”,
the
terms defined therein being used herein as therein defined), among Progress
Energy, Inc., certain lenders thereunder (the “Lenders”),
Citibank, N.A., as Administrative Agent for the Lenders, and the Issuing Banks
thereunder.
In
connection with the preparation, execution and delivery of the Credit Agreement,
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
opinion letter of even date herewith, addressed to you by Xxxxx X. Xxxxxxxx,
counsel to the Borrower and delivered in connection with the transactions
contemplated by the Credit 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 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, Florida and New
York,
and the opinions expressed herein are limited to the law of the States of North
Carolina, 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 Credit 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 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 or Issuing
Bank 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
C-3
FORM
OF OPINION OF GENERAL COUNSEL TO PROGRESS ENERGY
SERVICE
COMPANY, LLC UPON EXTENSION OF THE TERMINATION DATE
___________
___, 20__
To
each
of the Lenders and Issuing Banks parties
to
the
Credit Agreement referred to below and
to
Citibank, N.A., as Administrative Agent
Re:
Progress Energy, Inc.
Ladies
and Gentlemen:
This
opinion is furnished to you by me as General Counsel to Progress Energy Service
Company, LLC in connection with the extension of the Termination Date until
________ __, _____ under Section 2.15 (the “Extension”)
of the
Credit Agreement, dated as of May 3, 2006 (the “Credit
Agreement”,
the
terms defined therein being used herein as therein defined), among Progress
Energy, Inc. (the “Borrower”),
certain lenders from time to time parties thereto (the “Lenders”),
Citibank, N.A., as Administrative Agent for the Lenders, and the Issuing Banks
thereunder.
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
Amended and Restated Articles of Incorporation of the Borrower (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 the 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
States of North Carolina and Florida, and the opinions expressed herein are
limited to the law of the States of North Carolina and Florida, 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, and a filing of certain financing orders previously issued by the U.S.
Securities and Exchange Commission with the Federal Energy Regulatory
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 or Issuing
Bank under the Credit Agreement after the date hereof and Hunton & Xxxxxxxx
LLP, in connection with their opinion delivered on the date hereof under Section
2.15(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
C-4
FORM
OF OPINION OF SPECIAL COUNSEL TO THE BORROWER UPON
EXTENSION
OF THE TERMINATION DATE
___________
___, 20__
To
each
of the Lenders and Issuing Banks parties to the Credit Agreement referred to
below and to Citibank, N.A., as Administrative Agent
Re:
Progress Energy, Inc.
Ladies
and Gentlemen:
This
opinion is furnished to you by us as counsel for Progress Energy, Inc. (the
“Borrower”)
in
connection with the extension of the Termination Date until May [ ], 2012
under Section 2.15 (the “Extension”)
of the
Credit Agreement, dated as of May 3, 2006 (the “Credit
Agreement”,
the
terms defined therein being used herein as therein defined), among Progress
Energy, Inc., certain lenders from time to time parties thereto (the
“Lenders”),
Citibank, N.A., as Administrative Agent for the Lenders and the Issuing Banks
thereunder.
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, Florida and New
York,
and the opinions expressed herein are limited to the law of the States of North
Carolina, Florida 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 or Issuing
Bank 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
D
FORM
OF OPINION OF COUNSEL
TO
THE ADMINISTRATIVE AGENT
May
3,
2006
To
Citibank, N.A. (“Citibank”),
as
Administrative Agent for the Lenders referred to below, and to each of the
Lenders and Issuing Banks parties to the Credit Agreement referred to
below
Re: Progress
Energy, Inc.
Ladies
and Gentlemen:
We
have
acted as counsel to the Administrative Agent in connection with the preparation,
execution and delivery of the Credit Agreement, dated as of May 3, 2006 (the
“Credit
Agreement”,
the
terms defined therein being used herein as therein defined), among Progress
Energy, Inc., certain Lenders from time to time parties thereto, Citibank,
N.A.,
as Administrative Agent for the Lenders, and SunTrust Bank, as initial Issuing
Bank thereunder.
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 Borrower pursuant to subsections
(b)
through (g) of Section 3.01 of the Credit Agreement, including, without
limitation, the opinion of Hunton & Xxxxxxxx LLP (the “Borrower
Opinion”).
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 Borrower and the business terms reflected in the
Credit Agreement. We have relied, as to factual matters, on the documents we
have examined. We note that we do not represent the Borrower and, accordingly,
are not privy to the nature or character of its business. Accordingly, we have
assumed that the borrower is subject only to statutes, rules, regulations,
judgments, orders and other requirements of law general applicability to
corporations doing business in the State of New York.
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 Borrower Opinion 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
Borrower Opinion.
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 Borrower, enforceable against the Borrower in
accordance with its terms.
Our
opinion is subject to the following qualifications:
(a) The
enforceability of the Borrower’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 Borrower’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, other than any Person that may become a Lender or
Issuing Bank after the date hereof.
Very
truly yours,
EXHIBIT
E
FORM
OF REQUEST FOR EXTENSION OF
THE
TERMINATION DATE
CREDIT
AGREEMENT
dated
as
of May 3, 2006
___________________________________
PROGRESS
ENERGY, INC.
(Borrower)
AND
THE
BANKS
LISTED ON THE SIGNATURE PAGES HEREOF
(Banks)
and
CITIBANK,
N.A.
(Administrative
Agent)
and
SUNTRUST
BANK
(Issuing
Bank)
Request
for Extension of Termination Date
I,
[______________], [_________________] of Progress Energy, Inc., do hereby
request that the Termination Date of the Credit Agreement, dated as of May
3,
2006 (the “Credit
Agreement”,
the
terms defined therein being used herein as therein defined), among Progress
Energy, Inc., certain Lenders from time to time parties thereto, Citibank,
N.A.,
as Administrative Agent for the Lenders, and the Issuing Banks thereunder,
be
extended for a one-year period (hereinafter the “Proposed
Extension”)
pursuant to Section 2.15 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 _________, ____.
________________________
[________________]
EXHIBIT
F
FORM
OF COMPLIANCE CERTIFICATE
[Letterhead
of Progress Energy, Inc.]
[Date]
To
each
of the Lenders and Issuing Banks parties to the Credit Agreement referred to
below, Citibank, N.A., as Administrative Agent
Progress
Energy, Inc.
Ladies
and Gentlemen:
This
compliance certificate is furnished to you pursuant to Section 5.01(i)(ii)
of
the Credit Agreement, dated as of May 3, 2006 (the “Credit
Agreement”),
among
Progress
Energy, Inc., a North Carolina corporation (the “Borrower”),
the
lenders parties thereto (the “Lenders”),
Citibank, N.A. (“Citibank”),
as
administrative agent (the “Administrative
Agent”)
for the
Lenders, and the letter of credit issuing banks parties thereto.
Terms
defined in the Credit Agreement are used herein as therein defined.
1. As
of
[_______], 20__, the ratio of Consolidated Indebtedness of the Borrower and
its
Subsidiaries to Total Capitalization was _____ to 1.0, calculated, in accordance
with Section 5.01(j) of the Credit Agreement, as follows:
A. Indebtedness
as of such date was $________, calculated as follows:
|
Current
Indebtedness:
[List
all forms of current Debt]
|
Amount
|
|
|
__________________________________
|
$
|
|
|
__________________________________
|
||
|
__________________________________
|
||
|
__________________________________
|
__________
|
|
|
Total
current Indebtedness
|
$__________
|
|
|
Long-term
Indebtedness :
[list
all forms of long-term Indebtedness ]
|
Amount
|
|
|
__________________________________
|
$
|
|
|
__________________________________
|
||
|
__________________________________
|
||
|
__________________________________
|
||
|
Total
long-term Indebtedness
|
$__________
|
|
|
Total
Indebtedness (current Indebtedness plus
long-term Indebtedness )
|
$__________
|
B. Total
Capitalization as of such date was $_____, calculated as follows:
|
Consolidated
Indebtedness
|
$
|
|
|
Preferred
Stock
|
$
|
|
|
Common
Stock
|
$
|
|
|
Retained
Earnings
|
$__________
|
2. As
of
[_______], 20__, and as of the date hereof, no Event of Default and no event
that, with the giving of notice or lapse of time or both, will constitute an
Event of Default, has occurred and in continuing.
I
hereby
certify that the calculations set forth in paragraph 1 hereof were prepared
in
accordance with GAAP.
Very
truly yours,
PROGRESS
ENERGY, INC.
By______________________________________
Name:
Title:
