Exhibit 10b(10)
EXECUTION COPY
AMENDMENT
Dated as of March 11, 2005
To the Lenders parties to the Credit Agreement
and the Administrative Agent referred to below
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of August 5, 2004 (the
"Credit Agreement"), among Progress Energy, Inc. (the "Borrower"), the lenders
parties thereto and Citibank, N.A., as Administrative Agent ("Administrative
Agent"). Capitalized terms used herein and not otherwise defined herein have the
meanings given such terms in the Credit Agreement. The Borrower hereby requests
that the Credit Agreement be amended as provided below.
Section 1. Amendments. The parties agree that, subject to the satisfaction
of the conditions precedent to effectiveness set forth below, the Credit
Agreement is, as of the date hereof, hereby amended as follows:
(a) Subsection (j) of Section 5.01 is amended and restated in its entirety
to read as follows:
"(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."
Section 2. Conditions to Effectiveness. Section 1 of this Amendment shall
be effective as of the date hereof when and if (i) the Borrower and the Majority
Lenders shall have executed and delivered to the Administrative Agent executed
counterparts of this Amendment, (ii) the Borrower shall have paid to the
Administrative Agent, for the account of each Lender that shall have executed
and delivered to the Administrative Agent a counterpart of this Amendment on or
before 5:00 pm (New York City time) on Friday, March 11, 2005, an amendment fee
of $3,500, and (iii) the representations and warranties of the Borrower set
forth in Section 3 below shall be true and correct on and as of such date of
effectiveness as though made on and as of such date.
Section 3. Representations and Warranties. The Borrower represents and
warrants that (i) the representations and warranties contained in Article IV of
the Credit Agreement, as amended hereby (with each reference therein to "this
Agreement", "hereunder" and words of like import referring to the Credit
Agreement being deemed to be a reference to this Amendment and the Credit
Agreement, as amended hereby), are true and correct on and as of the date hereof
as though made on and as of such date, and (ii) no event has occurred and is
continuing, or would result from the execution and delivery of this Amendment,
that constitutes a Default or an Event of Default.
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Section 4. Effect on the Credit Agreement. The execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of any right,
power or remedy of any Lender or the Administrative Agent under the Credit
Agreement, nor constitute a waiver of any provision of any of the Credit
Agreement. Except as expressly amended above, the Credit Agreement is and shall
continue to be in full force and effect and is hereby in all respects ratified
and confirmed. This Amendment shall be binding on the parties hereto and their
respective successors and permitted assigns under the Credit Agreement.
Section 5. Costs, Expenses and Taxes. The Borrower agrees to pay on demand
all costs and expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment and any other instruments
and documents to be delivered hereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent with respect thereto, and all costs and expenses (including, without
limitation, counsel fees and expenses), if any, in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Amendment or such other instruments and documents. In addition, the
Borrower agrees to pay any and all stamp and other taxes payable or determined
to be payable in connection with the execution and delivery of this Amendment
and any other instruments and documents to be delivered hereunder, and agree
jointly and severally to save the Lenders and the Administrative Agent harmless
from and against any and all liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes.
Section 6. Counterparts. This Amendment may be executed in any number of
counterparts and by any combination of the parties hereto in separate
counterparts, each of which counterparts shall constitute an original, and all
of which taken together shall constitute one and the same instrument.
Section 7. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
If you consent and agree to the foregoing, please evidence such consent and
agreement by executing and returning four (4) counterparts of this Amendment to
King & Spalding LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxxxx X. Xxxxxx (fax no. 000-000-0000) no later than 5:00 p.m.,
New York City time, on Friday, March 11, 2005.
Very truly yours,
PROGRESS ENERGY, INC.
By
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Name:
Title:
3
The undersigned hereby consent
and agree to the foregoing:
CITIBANK, N.A.
By
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Name:
Title:
4
JPMORGAN CHASE BANK
By
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Name:
Title:
5
SUNTRUST BANK
By
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Name:
Title:
6
BANK OF AMERICA, N.A.
By
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Name:
Title:
7
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
By
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Name:
Title:
8
BARCLAYS BANK PLC
By
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Name:
Title:
9
THE ROYAL BANK OF SCOTLAND PLC
By
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Name:
Title:
10
BNP PARIBAS
By
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Name:
Title:
By
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Name:
Title:
11
CALYON NEW YORK BRANCH
By
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Name:
Title:
By
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Name:
Title:
00
XXXXXXXX XXXX XX, XXX XXXX BRANCH
By
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Name:
Title:
By
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Name:
Title:
13
XXXXXX BROTHERS BANK, FSB
By
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Name:
Title:
14
UBS LOAN FINANCE LLC
By
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Name:
Title:
By
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Name:
Title:
15
WACHOVIA BANK, N.A.
By
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Name:
Title:
00
XXXXXXX XXXXXX COMMITMENT
CORPORATION
By
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Name:
Title:
17
SUMITOMO MITSUI BANKING
CORPORATION
By
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Name:
Title:
00
XXX XXXX XX XXX XXXX
By
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Name:
Title:
19
UFJ BANK
By
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Name:
Title:
20
MELLON BANK, N.A.
By
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Name:
Title:
