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Article I DEFINITIONS |
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| Accounting Terms and Determinations | 15 | ||
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| References |
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Article II THE CREDITS |
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| SECTION 2.01. | Commitment to Lend | 16 | |
| SECTION 2.02. | Method of Borrowing | 16 | |
| SECTION 2.03. | Evidence of Loans | 17 | |
| SECTION 2.04. | Maturity of Loans; Termination of Commitment | 17 | |
| SECTION 2.05. | Interest Rates | 17 | |
| SECTION 2.06. | Fees | 18 | |
| SECTION 2.07. | Optional Termination or Reduction of Commitment | 19 | |
| SECTION 2.08. | Mandatory Prepayments | 19 | |
| SECTION 2.09. | Optional Prepayments | 19 | |
| SECTION 2.10. | Compensation after Prepayment or Conversion | 19 | |
| SECTION 2.11. | General Provisions as to Payments | 19 | |
| SECTION 2.12. | Computation of Interest and Fees | 20 | |
| SECTION 2.13. | Compensation, Additional Interest | 20 | |
| SECTION 2.14. | Taxes | 21 | |
| SECTION 2.15. | Interest Rate Determination | 22 | |
| SECTION 2.16. | Conversion of Loans | 23 | |
| SECTION 2.17. | Set-off | 24 | |
| SECTION 2.18. | Pro Rata Treatment | 25 | |
| SECTION 2.19. | Sharing of Payments | 25 | |
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Article III CONDITIONS TO BORROWINGS | 26 | |||
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| SECTION 3.01. | Conditions to Closing | 26 | |
| SECTION 3.02. | Conditions to All Borrowings | 27 | |
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Article IV REPRESENTATIONS AND WARRANTIES | 28 | |||
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| SECTION 4.01. | Corporate Existence and Power | 28 | |
| SECTION 4.02. | Corporate and Governmental Authorization; Contravention | 28 | |
| SECTION 4.03. | Binding Effect | 28 | |
| SECTION 4.04. | Financial Information | 29 | |
| SECTION 4.05. | Litigation | 29 | |
| SECTION 4.06. | Compliance with ERISA | 29 | |
| SECTION 4.07. | Taxes | 30 | |
| SECTION 4.08. | Ownership of Common Stock | 31 | |
| SECTION 4.09. | Not an Investment Company; Public Utility Holding Company Subsidiary |
31 | |
| SECTION 4.10. | Ownership of Property; Liens | 31 | |
| SECTION 4.11. | No Default. | 31 | |
| SECTION 4.12. | Full Disclosure | 31 | |
| SECTION 4.13. | Environmental Matters | 32 | |
| SECTION 4.14. | Compliance with Laws. | 32 | |
| SECTION 4.15. | Margin Stock | 32 | |
| SECTION 4.16. | Purpose of Loans | 32 | |
| SECTION 4.17. | Solvency | 32 | |
| SECTION 4.18. | Insurance | 32 | |
| SECTION 4.19. | Labor Matters | 33 | |
| SECTION 4.20. | Amendments to Organizational Documents | 33 | |
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Article V COVENANTS | 33 | |||
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| SECTION 5.01. | Information | 33 | |
| SECTION 5.02. | Inspection of Property, Books and Records | 35 | |
| SECTION 5.03. | Loans or Advances | 35 | |
| SECTION 5.04. | Investments | 36 | |
| SECTION 5.05. | Restrictions on Liens | 36 | |
| SECTION 5.06. | Maintenance of Existence | 37 | |
| SECTION 5.07. | Dissolution | 37 | |
| SECTION 5.08. | Consolidations, Mergers and Sales of Assets | 37 | |
| SECTION 5.09. | Use of Proceeds | 38 | |
| SECTION 5.10. | Compliance with Laws; Payment of Taxes | 38 | |
| SECTION 5.11. | Insurance | 38 | |
| SECTION 5.12. | Change in Fiscal Year | 38 | |
| SECTION 5.13. | Maintenance of Property | 38 | |
| SECTION 5.14. | Environmental Notices | 39 | |
| SECTION 5.15. | Environmental Matters | 39 | |
| SECTION 5.16. | Environmental Release | 39 | |
| SECTION 5.17. | Additional Shares of Common Stock | 39 | |
| SECTION 5.18. | No Significant Subsidiaries | 39 | |
| SECTION 5.19. | Debt to Total Capitalization | 39 | |
| SECTION 5.20. | Transactions with Affiliates | 39 | |
| SECTION 5.21. | Maintenance of Licenses, Permits and Registrations | 40 | |
| SECTION 5.22. | OFAC/PATRIOT ACT | 40 | |
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Article VI DEFAULTS | 40 | |||
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| SECTION 6.01. | Events of Default | 40 | |
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Article VII MISCELLANEOUS | 43 | |||
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| SECTION 7.01. | Notices | 43 | |
| SECTION 7.02. | No Waivers | 43 | |
| SECTION 7.03. | Expenses; Documentary Taxes; Indemnification | 43 | |
| SECTION 7.04. | Amendments, Waivers and Consents | 44 | |
| SECTION 7.05. | Benefit of Agreement | 45 | |
| SECTION 7.06. | Confidentiality. | 47 | |
| SECTION 7.07. | Representation by the Lender | 48 | |
| SECTION 7.08. | Governing Law | 48 | |
| SECTION 7.09. | Consent to Jurisdiction; Waiver of Jury Trial | 48 | |
| SECTION 7.10. | Interpretation | 48 | |
| SECTION 7.11. | Counterparts. | 49 | |
| SECTION 7.12. | Entire Agreement. | 49 | |
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Article VIII AGENCY PROVISIONS | 49 | |||
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| SECTION 8.01. | Appointment | 49 | |
| SECTION 8.02. | Delegation of Duties | 50 | |
| SECTION 8.03. | Exculpatory Provisions. | 50 | |
| SECTION 8.04. | Reliance on Communications | 51 | |
| SECTION 8.05. | Notice of Default | 51 | |
| SECTION 8.06. | Non-Reliance on the Agent and Other Lenders | 52 | |
| SECTION 8.07. | Indemnification | 52 | |
| SECTION 8.08. | The Agent in its Individual Capacity | 52 | |
| SECTION 8.09. | Successor Agent | 52 | |
| SECTION 8.10. | Other Agents | 53 | |
| SECTION 8.11. | Existing Credit Agreement | 53 |
Schedule 1 | Commitments of the Lenders | |
Schedule 4.05 Certain Litigation from the Disclosure Documents |
Exhibit A | Form of Note | |
Exhibit B-1 | Form of Opinion of Counsel to the Borrower | |
Exhibit B-2 | Form of Opinion of General Counsel to the Borrower | |
Exhibit C | Form of Assignment and Acceptance | |
Exhibit D-1 | Form of Notice of Borrowing | |
Exhibit D-2 | Form of Notice of Conversion | |
Exhibit E | Form of Compliance Certificate |
Senior Unsecured Debt Ratings (S&P/Moody’s) | Applicable LIBOR Margin | Applicable Facility Fee | Applicable Utilization Fee | |
Level 1 | At least A+/A1 | 0.190% | 0.060% | 0.100% |
Level 2 | Less than A+/A1; at least A/A2 | 0.230% | 0.070% | 0.100% |
Level 3 | Less than A/A2; at least A-/A3 | 0.270% | 0.080% | 0.100% |
Level 4 | Less than A-/A3; at least BBB+/Baa1 | 0.350% | 0.100% | 0.100% |
Level 5 | Less than BBB+/Baa1; at least BBB/Baa2 | 0.425% | 0.125% | 0.100% |
Level 6 | Less than BBB/Baa2; at least BBB-/Baa3 | 0.575% | 0.175% | 0.100% |
Level 7 | Less than BBB-/Baa3 | 0.775% | 0.250% | 0.100% |
PUBLIC SERVICE COMPANY OF NORTH | |
CAROLINA, INCORPORATED | |
By: | /s/ CathyY. Kirven |
Name: | Cathy Y. Kirven |
Title: | Treasurer |
WACHOVIA BANK, | |
NATIONAL ASSOCIATION, as Agent | |
and a Lender | |
By: | /s/Frederick W. Price |
Name: | Frederick W. Price |
Title: | Managing Director |
BANK OF AMERICA, N.A., as | |
Syndication Agent and a Lender | |
By: | /s/Michelle A. Schoenfeld |
Name: | Michelle A. Schoenfeld |
Title: | Senior Vice President |
THE BANK OF NEW YORK, as a | |
Documentation Agent and a Lender | |
By: | /s/David T. Sunderwirth |
Name: | David T. Sunderwirth |
Title: | Vice President |
BRANCH BANKING AND TRUST CO. | |
OF SOUTH CAROLINA, as a | |
Documentation Agent and a Lender | |
By: | /s/H. B. Armstrong, Jr. |
Name: | H. B. Armstrong, Jr. |
Title: | Senior Vice President |
UBS LOAN FINANCE LLC, as a Lender | |
By: | /s/Wilfred V. Saint |
Name: | Wilfred V. Saint |
Title: | Director, Banking Products Services, US |
By: | /s/Richard L. Tavrow |
Name: | Richard L. Tavrow |
Title: | Director, Banking Products Services, US |
SUNTRUST BANK, as a Lender | |
By: | /s/Kelley Brunson |
Name: | Kelley Brunson |
Title: | Vice President |
CREDIT SUISSE, CAYMAN ISLANDS | |
BRANCH,as a Lender | |
By: | /s/Vanessa Gomez |
Name: | Vanessa Gomez |
Title: | Vice President |
By: | /s/Rianka Mohan |
Name: | Rianka Mohan |
Title: | Associate |
CAROLINA FIRST BANK, as a Lender | |
By: | /s/Edward P. West, Jr. |
Name: | Edward P. West, Jr. |
Title: | Executive Vice President |
THE NATIONAL BANK OF SOUTH | |
CAROLINA, as a Lender | |
By: | /s/Jessie C. Ford |
Name: | Jessie C. Ford |
Title: | Senior Vice President |
SOUTH CAROLINA BANK AND | |
TRUST, N.A., as a Lender | |
By: | /s/James C. Hunter, Jr. |
Name: | James C. Hunter, Jr. |
Title: | EVP |
LENDING/LIBOR OFFICE Wachovia Bank, National Association One Wachovia Center 201 South College Street, CP-8 Charlotte, North Carolina 28288-0680 Attention: Syndication Agency Services Telephone: (704) 383-7698 Facsimile: (704) 383-0288 with a copy of Notices to: One Wachovia Center, DC-5 301 South College Street Charlotte, North Carolina 28288-0251 Attn: Frederick W. Price Telephone: (704)374-4062 Facsimile: (704) 374-3300 Email: rick.price@wachovia.com | Commitment $24,038,461.53 | Pro Rata Share 19.23% | ||||
LIBOR/LENDING OFFICE Bank of America, N.A. Shelly Schoenfeld 100 North Tryon Street NC1-007-13-13 Charlotte, North Carolina 28255 Telephone: (704) 386-1432 Facsimile: (704) 386-1319 Email: michelle.a.schoenfeld@bankofamerica.com with a copy of Notices to: Jackie Archuleta 901 Main Street TX1-492-14-12 Dallas, Texas 75202-3714 Telephone: (214) 209-2135 Facsimile: (214) 290-8372 Email: Jacqueline.archuleta@bankofamerica.com | Commitment $24,038,461.53 | Pro Rata Share 19.23% | ||||
LENDING/LIBOR OFFICE The Bank of New York David T. Sunderwrith, Vice President One Wall Street, 19th Floor New York, New York 10286 Telephone: 212-635-8804 Facsimile: (212) 635-7552 Email: dsunderwrith@bankofny.com with a copy of Notices to: Lisa Williams One Wall Street, 19th Floor New York, New York Telephone: (212) 685-7535 Facsimile: (212) 635-7552 Email:lwilliams@bankofny.com | Commitment $16,346,153.85 | Pro Rata Share 13.08% | ||||
LENDING/LIBOR OFFICE Branch Bank and Trust Co. of South Carolina H.B. Armstrong, Jr., Senior Vice President 1901 Assembly Street Columbia, South Carolina 29201 Telephone: (803) 251-1394 Facsimile: (803) 251-1776 Email: harmstrong@bbandt.com with a copy of Notices to: Joseph L Carag 1901 Assembly Street Columbia, South Carolina 29201 Telephone: (803) 251-1394 Facsimile: (803) 251-1776 Email:jcarag@bbandt.com | Commitment $16,346,153.85 | Pro Rata Share 13.08% | ||||
LENDING/LIBOR OFFICE UBS Loan Finance LLC Terry Donovan 677 Washington Boulevard Stamford, Connecticut 06901 Telephone: (203) 719-6100 Email: terry.donovan@ubs.com with a copy of Notices to: Christopher Aithin 677 Washington Boulevard Stamford, Connecticut 06901 Telephone: (203) 719-3845 Facsimile: (203) 719-3888 Email: Christopher.aithin@ubs.com | Commitment $12,500,000.00 | Pro Rata Share 10.00% | ||||
LENDING/LIBOR OFFICE SunTrust Bank Linda Stanley 303 Peachtree Street, 10th Floor Atlanta, GA 30308 Tel: 404-532-0989 Fax: 404-827-6270 Linda.stanley@suntrust.com with a copy of Notices to: Bonnie Langley 303 Peachtreet Street, NE, 10th Floor Atlanta, Georgia 30308 Telephone: (404) 284-4624 Email: bonnie.langley@suntrust.com | Commitment $9,615,384.62 | Pro Rata Share 7.69% | ||||
LENDING/LIBOR OFFICE Credit Suisse First Boston, Acting Through Its Cayman Island Branch Sarah Wu Eleven Madison Avenue New York, New York 10010 Telephone: (212) 325-5813 Facsimile: (212) 743-2042 Email: sarah.wu@csfb.com with a copy of Notices to: Ronald Davis One Madison Avenue New York, New York 10010 Telephone: (212) 325-0178 Facsimile: (917) 326-8428 Email: ronald.davis@csfb.com | Commitment $9,615,384.62 | Pro Rata Share 7.69% | ||||
LENDING/LIBOR OFFICE The National Bank of South Carolina Jessie Ford P.O. Box 1457 Columbia, South Carolina 29202 Telephone: (803) 929-2004 Facsimile: (803) 929-2009 Email: jessieford@nationalbanksc.com with a copy of Notices to: Jane B. Rich P.O. Box 1457 Columbia, South Carolina 29202 Telephone: (803) 929-2011 Facsimile: (803) 929-2031 Email: janerich@nationalbanksc.com | Commitment $6,730,769.23 | Pro Rata Share 5.38% | ||||
LENDING/LIBOR OFFICE Carolinas First Bank Charles D. Chamberlain 104 South Main Street, 10th Floor Greenville, South Carolina 29601 Telephone: (864) 255-8924 Facsimile: (864) 255-8991 Email: charles.chamberlain@carolinasfirst.com with a copy of Notices to: Meredith M. Whitt 104 South Main Street, 6th Floor Greenville, South Carolina 29601 Telephone: (864) 298-6092 Facsimile: (864) 255-8920 Email: Meredith.millender@carolinasfirst.com | Commitment $4,807,692.31 | Pro Rata Share 3.85% | ||||
LENDING/LIBOR OFFICE South Carolina Bank and Trust, N.A. Jim Hunter 3205 St. Matthews Road Orangeburg, South Carolina 29115 Telephone: (803) 531-0572 Facsimile: (803) 531-8753 with a copy of Notices to: Mavis Horger 950 John C. Calhoun Drive Orangeburg, South Carolina 29115 Telephone: (803) 531-0513 Facsimile: (803) 531-0518 | Commitment $961,538.46 | Pro Rata Share 0.77% |
PUBLIC SERVICE COMPANY OF NORTH | |
CAROLINA, INCORPORATED | |
By: | |
Name: | |
Title: | |
(SEAL) |
Date | Type of Loan | Interest Rate | Amount of Loan | Amount of Principal Prepaid | Length of Interest Period | Notation Made By |
(a) | the genuineness of all signatures and the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such latter documents; |
(b) | that each of the Loan Documents has been duly authorized, executed and delivered by each of the parties thereto other than the Borrower, and is a valid and binding obligation of each such party other than Borrower, enforceable against each such party in accordance with its terms; |
(c) | that good and adequate consideration was given for the execution and delivery of the Loan Documents; |
(d) | that the Loans provided for in the Credit Agreement are for commercial purposes; and |
(e) | that the Agents and the Lenders will exercise their rights and remedies under the Loan Documents in good faith and in a commercially reasonable manner. |
A. | We express no opinion as to compliance with law, or consents, approvals, authorizations, orders, registrations or qualifications with or from courts or governmental or regulatory authorities, with respect to the conduct of the Borrower’s ongoing business operations. |
B. | This opinion is based upon laws and regulations in effect on the date hereof, and administrative and judicial interpretations thereof, and we assume no obligation to update or supplement this opinion to reflect any events or state of facts that may hereafter come to our attention or any changes in laws, regulations or court decisions that may hereafter occur. |
C. | We are qualified to practice law in the State and we express no opinion as to any laws other than the laws of the State and of the United States of America. |
D. | We advise you that we previously have represented and currently are representing some of the Lenders and the Agents in unrelated matters. By your acceptance of this opinion letter, you waive any claim for conflicts of interest as a result of our representation of the Borrower in this transaction and our representation of the Lenders and the Agents in unrelated matters. |
E. | The obligations of the Borrower, and the rights of the Agents and the Lenders under the Loan Documents, are subject to (i) the United States Bankruptcy Code, 11 USC §101, et seq. (the “Bankruptcy Code”); (ii) bankruptcy, insolvency, fraudulent conveyance, marshalling, appraisal rights, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of creditors’ rights generally; (iii) general principles of equity limiting the availability of the remedy of specific performance and affecting the enforcement of creditors’ rights generally, regardless of whether such matters are considered in a proceeding at law or in equity; (iv) considerations of public policy including those limiting the enforceability of indemnities and remedies; (v) a requirement that remedies be exercised in good faith; and (vi) rights of any governmental authority or agency thereof arising under any applicable law or regulation. |
F. | This opinion is limited to the matters expressly set forth herein.We express no opinion with respect to any other matters or with respect to any federal or State antitying, antitrust, securities, intellectual property or tax laws, and no other opinions should be inferred beyond the matters expressly stated. |
G. | Delay on the part of a lender to exercise remedies under a loan document has, in some cases, been determined by the courts of the State to constitute a waiver of such remedies. We express no opinion as to whether provisions like those in the Loan Documents which purport to preclude such waivers will be deemed enforceable if considered by the courts of the State. |
H. | The waiver of rights, such as, without limitation, waivers of acceptance, presentment, demand, protest, notice, defenses, appraisement, valuation, stay, marshalling, rights of redemption, objections to jurisdiction, venue and inconvenient forum, jury trial rights and other similar rights are present waivers in advance of the existence of those rights and, as such, are of doubtful enforceability in the State. In addition, certain waivers may be unenforceable as against public policy, including but not limited to waivers of defenses based on lack of capacity or lack of consideration, and compulsory counterclaims may not be waived. Moreover, with respect to waivers of rights to jury trials, we must advise you that while there appears to be a basis of support in case law upholding such waivers, State courts have strictly construed such waivers. |
I. | We express no opinion as to the enforceability of provisions in the Loan Documents pursuant to which the Borrower agrees to waivers on behalf of third parties not a party to such Loan Documents. |
J. | We express no opinion as to the enforceability of remedial provisions of the Loan Documents which are dependent on licensure of or grant of other governmental authority to the Agents or the Lenders. |
K. | As noted in Mr. Mood’s opinion, further authorizations will be required in order for the Borrower to borrow under the Credit Agreement after April 15, 2006, and certain filings are required under the SEC Order and the NCUC Order. |
L. | We express no opinion as to the enforceability of any provision whereby the Agents or any Lender reserve the right to charge "default interest" or a higher rate of interest after default than the interest that would otherwise accrue under the documents, or any other charge or fee, however calculated, which would be deemed a penalty to the extent such interest, charge or fee is in violation of public policy. |
(a) | Date of Assignment: | |
(b) | Legal Name of Assignor: | |
(c) | Legal Name of Assignee: | |
(d) | Effective Date of Assignment*: | |
(e) | Pro Rata Percentage Assigned (expressed as a percentage set forth to at least 8 decimals) | % |
(f) | Pro Rata Percentage of Assignee after giving effect to this Assignment and Acceptance on the Effective Date (set forth to at least 8 decimals) | % |
(g) | Pro Rata Percentage of Assignor after giving effect to this Assignment and Acceptance on the Effective Date (set forth to at least 8 decimals) | % |
(h) | Outstanding Balance of Loans as of the Effective Date | $__________ |
(i) | Dollar Amount of Assignor’s portion of the Loans after giving effect to this Assignment and Acceptance on the Effective Date (the amount set forth in (h) multiplied by the percentage set forth in (g)) | $__________ |
(j) | Dollar Amount of Assignee’s portion of the Loans after giving effect to this Assignment and Acceptance on the Effective Date (the amount set forth in (h) multiplied by the percentage set forth in (f)) | $__________ |
Compliance with Section 5.19 - Debt Capitalization | ||||
A. | Debt | $ | ||
B. | Total Capitalization | $ | ||
1. | preferred stock | $ | ||
2. | Common Equity | $ | ||
3. | Debt (Line A) | $ | ||
4. | unamortized common stock expense | $ | ||
5. | Total Capitalization (Line B.1plus Line B.2 | |||
plus Line B.3minus Line B.4) | ||||
C. | Ratio of Debt to Total Capitalization (Line A to Line B.5) | to 1.0 | ||
(Not to exceed .70 to 1.0) |