Exhibit 10.(a)(2)
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FLORIDA POWER CORPORATION
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT B
Dated as of November 17, 1998
This Agreement amends and restates
Credit Agreement B Dated as of November 26, 1991
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THE CHASE MANHATTAN BANK
as Agent
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is attached
but is inserted for convenience only.
Page
Section 1. Definitions and Accounting Matters................................1
1.01 Certain Defined Terms...........................1
1.02 Accounting Terms and Determinations ...........11
1.03 Classes and Types of Loans.....................11
Section 2. Commitments .....................................................12
2.01 Syndicated Loans ..............................12
2.02 Borrowings of Syndicated Loans ................12
2.03 Money Market Loans ............................12
2.04 Changes of Commitments ........................16
2.05 Facility Fee ..................................16
2.06 Lending Offices ...............................16
2.07 Several Obligations; Remedies Independent .....17
2.08 Notes .........................................17
2.09 Prepayments and Conversions on Continuations
of Loans.......................................17
Section 3. Payments of Principal and Interest ..............................17
3.01 Repayment of Loans ...........................17
3.02 Interest ......................................18
Section 4. Payments; Pro Rata Treatment; Computations; Etc. ................19
4.01 Payments ......................................19
4.02 Pro Rata Treatment ............................19
4.03 Computations ..................................20
4.04 Minimum Amounts ..............................20
4.05 Certain Notices ...............................20
4.06 Non-Receipt of Funds by the Agent .............21
4.07 Sharing of Payments, Etc ......................22
Section 5. Yield Protection and Illegality .................................23
5.01 Additional Costs ..............................23
5.02 Limitation on Types of Loans ..................25
5.03 Illegality ....................................26
5.04 Treatment of Affected Loans ...................26
5.05 Compensation ..................................27
Section 6. Conditions Precedent ............................................27
6.01 Initial Loan ..................................27
6.02 Initial and Subsequent Loans ..................28
Section 7. Representations and Warranties ..................................28
7.01 Corporate Existence ...........................29
7.02 Financial Condition ...........................29
7.03 Litigation ....................................29
7.04 No Breach .....................................29
7.05 Corporate Action ..............................30
7.06 Approvals .....................................30
7.07 Use of Loans ..................................30
7.08 ERISA .........................................30
7.09 Taxes .........................................30
7.10 Investment Company Act .......................31
7.11 Public Utility Holding Company Act ............31
Section 8. Covenants of the Company ........................................31
8.01 Financial Statements ..........................31
8.02 Litigation ....................................33
8.03 Corporate Existence, Etc ......................34
8.04 Prohibition of Fundamental Changes ............34
8.05 Use of Proceeds ...............................34
8.06 Indebtedness to Capitalization Ratio...........34
8.07 Negative Pledge ...............................34
Section 9. Events of Default ...............................................35
Section 10. The Agent .......................................................38
10.01 Appointment, Powers and Immunities ............38
10.02 Reliance by Agent .............................39
10.03 Defaults ......................................39
10.04 Rights as a Lender ............................39
10.05 Indemnification ...............................39
10.06 Non-Reliance on Agent and Other Lenders........40
10.07 Failure to Act ................................40
10.08 Resignation or Removal of Agent ...............40
10.09 Agency Fee ....................................41
Section 11. Miscellaneous ...................................................41
11.01 Waiver.........................................41
11.02 Notices........................................41
11.03 Expenses, Etc..................................41
11.04 Amendments, Etc ...............................42
11.05 Successors and Assigns ........................42
11.06 Assignments and Participations ................42
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11.07 Survival.......................................44
11.08 Captions.......................................44
11.09 Counterparts...................................44
11.10 Governing Law; Submission to Jurisdiction......44
11.11 Waiver of Jury Trial...........................45
EXHIBIT A-1 - Form of Note for Syndicated Loans
EXHIBIT A-2 - Form of Note for Money Market Loans
EXHIBIT B - Form of Opinion of Counsel to the Parent
EXHIBIT C - Form of Money Market Quote Request
EXHIBIT D - Form of Money Market Quote
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THIS THIRD AMENDED AND RESTATED CREDIT AGREEMENT B dated as of
November 17, 1998 between: FLORIDA POWER CORPORATION, a corporation duly
organized and validly existing under the laws of the State of Florida (the
"Company"); each of the lenders that is a signatory hereto or which, pursuant to
Section 11.06(b) hereof, shall become a "Lender" hereunder (individually, a
"Lender" and, collectively, the "Lenders"); and THE CHASE MANHATTAN BANK, as
agent for the Lenders (in such capacity, together with its successors in such
capacity, the "Agent"); amends and restates the Credit Agreement B dated as of
November 26, 1991, between the Company, each of the Lenders and the Agent.
The Company has requested that the Lenders make loans to it in an
aggregate principal amount not exceeding $200,000,000 at any one time
outstanding and the Lenders are prepared to make such loans upon the terms
hereof. Accordingly, the parties hereto agree as follows:
Section 1. Definitions and Accounting Matters.
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1.01 Certain Defined Terms. As used herein, the following terms shall
have the following meanings (all terms defined in this Section 1.01 or in other
provisions of this Agreement in the singular to have the same meanings when used
in the plural and vice versa):
"Applicable Lending Office" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or of an affiliate of such
Lender) designated for such Type of Loan on the signature pages hereof or such
other office of such Lender (or of an affiliate of such Lender) as such Lender
may from time to time specify to the Agent and the Company as the office by
which its Loans of such Type are to be made and maintained.
"Applicable Margin" shall mean:
(i) during each Class 1 Rating Period,
(A) with respect to Base Rate Loans, zero,
(B) with respect to Eurodollar Loans, 0.17%, and
(C) with respect to CD Loans, 0.295%,
(ii) during each Class 2 Rating Period,
(A) with respect to Base Rate Loans, zero,
(B) with respect to Eurodollar Loans, 0.225%,
(C) with respect to CD Loans, 0.35%, and
(iii) during each Class 3 Rating Period,
(A) with respect to Base Rate Loans, zero,
(B) with respect to Eurodollar Loans, 0.40%, and
(C) with respect to CD Loans, 0.525%.
"Applicable Facility Fee Rate" shall mean, a rate per annum equal to
(a) during each Class 1 Rating Period, 0.08%; (b) during each Class 2 Rating
Period, 0.15%; and (c) during each Class 3 Rating Period, 0.20%.
"Assessment Rate" shall mean, for any Interest Period for any CD Loan,
the effective annual assessment rate (rounded upwards, if necessary, to the
nearest 1/100 of 1%) payable by Chase to the Federal Deposit Insurance
Corporation (or any successor) for deposit insurance for Dollar time deposits
with Chase at the Principal Office during such Interest Period, as reasonably
estimated by the Agent.
"Base Rate" shall mean, for any day, the higher of (a) the Federal
Funds Rate for such day plus 1/2 of 1% per annum and (b) the Prime Rate for such
day. Each change in any interest rate provided for herein based upon the Base
Rate resulting from a change in the Base Rate shall take effect at the time of
such change in the Base Rate.
"Base Rate Loans" shall mean Syndicated Loans which bear interest at
rates based upon the Base Rate.
"Business Day" shall mean any day on which commercial banks are not
authorized or required to close in New York City and, if such day relates to the
giving of notices or quotes in connection with a LIBOR Auction or to a borrowing
of, a payment or prepayment of principal of or interest on,, or an Interest
Period for, a Eurodollar Loan or a LIBOR Market Loan or a notice by the Company
with respect to any such borrowing, payment, prepayment or Interest Period,
which is also a day on which dealings in Dollar deposits are carried out in the
London interbank market.
"Capital Lease Obligations" shall mean, as to any Person, the
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real and/or personal property which
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP (including Statement of Financial
Accounting Standards No. 13 of the Financial Accounting Standards Board) and,
for purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP (including such
Statement No. 13).
"CD Loans" shall mean Syndicated Loans the interest rates on which are
determined on the basis of rates referred to in clause (b) of the definition of
"Fixed Base Rate" in this Section 1.01.
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"Chase" shall mean The Chase Manhattan Bank.
"Class" shall have the meaning given to that term in Section 1.03
hereof.
"Class 1 Rating Period" shall mean any period during which the rating
of the First Mortgage Bonds (a) by Moody's equals or exceeds "A3" and (b) by S&P
equals or exceeds "A-".
"Class 2 Rating Period" shall mean any period during which the rating
of the First Mortgage Bonds (a) by Moody's equals or exceeds "Baa3" and (b) by
S&P equals or exceeds "BBB-", and which is not a Class 1 Rating Period.
"Class 3 Rating Period" shall mean any period that is neither a Class
1 Rating Period nor a Class 2 Rating Period.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment" shall mean, with respect to each Lender, the obligation
of such Lender to make Syndicated Loans pursuant to Section 2.01 hereof in an
aggregate amount at any one time outstanding up to but not exceeding the amount
set opposite such Lender's name on the signature pages hereof under the caption
"Commitment" (as the same may be reduced at any time or from time to time
pursuant to Section 2.04 hereof). The original aggregate amount of the
Commitments is $200,000,000.
"Commitment Termination Date" shall mean, with respect to each Lender,
November 30, 2003; provided that
(a) if, (i) not later than 39 months, but no more than 40 months,
prior to the Commitment Termination Date, determined after giving effect to
all previous extensions thereof pursuant to this definition (the "Existing
Commitment Termination Date"), the Company requests that the Lenders agree
to extend the Commitment Termination Date to the December 31 falling two
years after the Existing Commitment Termination Date (the "Proposed
Commitment Termination Date") and (ii) each of the Lenders so agrees in
writing prior to the Existing Commitment Termination Date, then the
"Commitment Termination Date" shall be extended, with respect to each
Lender, to the Proposed Commitment Termination Date;
(b) if, pursuant to any such request, some, but not all, of the
Lenders agree to so extend the Existing Commitment Termination Date to the
Proposed Commitment Termination Date (the Lenders that so agree, the
"Consenting Lenders"), the "Commitment Termination Date" shall mean (i)
with respect to the Consenting Lenders, the Proposed Commitment Termination
Date and (ii) with respect to the Lenders that are not Consenting Lenders,
the Existing Commitment Termination Date; and
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(c) if the Commitment Termination Date as determined above is not a
Business Day, the Termination Date shall be the next preceding Business
Day.
"Consolidated Subsidiary" shall mean, as to any Person, each
Subsidiary of such Person (whether now existing or hereafter created or
acquired) the financial statements of which shall be (or should have been)
consolidated with the financial statements of such Person in accordance with
GAAP.
"Continue", "Continuation" and "Continued" shall refer to the
continuation pursuant to Section 2.09 hereof of a Fixed Rate Loan of one Type as
a Fixed Rate Loan of the same Type from one Interest Period to the next Interest
Period.
"Convert", "Conversion" and "Converted" shall refer to a conversion
pursuant to Section 2.09 hereof of Base Rate Loans into CD Loans or Eurodollar
Loans, of CD Loans into Base Rate Loans or Eurodollar Loans, or of Eurodollar
Loans into Base Rate Loans or CD Loans, which may be accompanied by the transfer
by a Lender (at its sole discretion) of a Loan from one Applicable Lending
Office to another.
"Default" shall mean an Event of Default or an event which with notice
or lapse of time or both would become an Event of Default.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or business
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as the Company or is under common control
(within the meaning of Section 414(c) of the Code) with the Company.
"Eurodollar Loans" shall mean Syndicated Loans the interest rates on
which are determined on the basis of rates referred to in clause (a) of the
definition of "Fixed Base Rate" in this Section 1.01.
"Event of Default" shall have the meaning assigned to such term in
Section 9 hereof.
"Existing Indenture" shall mean the Indenture dated as of January 1,
1944 between the Company and First Chicago Trust Company of New York, successor
Trustee, as amended and supplemented and in effect from time to time.
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"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (i) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
rate charged to Chase on such day on such transactions as determined by the
Agent.
"First Mortgage Bonds" shall mean the Company's First Mortgage Bonds
issued under the Existing Indenture.
"Fixed Base Rate" shall mean, with respect to any Fixed Rate Loan for
any Interest Period therefor:
(a) if such Loan is a Eurodollar Loan or a LIBOR Market Loan, the
arithmetic mean (rounded upwards, if necessary, to the nearest 1/16 of 1%),
as determined by the Agent, of the rates per annum quoted by the respective
Reference Lenders at approximately 11:00 a.m.London time (or as soon
thereafter as practicable) on the date two Business Days prior to the first
day of such Interest Period for the offering by the respective Reference
Lenders to leading banks in the London interbank market of Dollar deposits
having a term comparable to such Interest Period and in an amount
comparable to the principal amount of the Eurodollar Loan or LIBOR Market
Loan to be made by the respective Reference Lenders for such Interest
Period; and
(b) if such Loan is a CD Loan, the arithmetic mean (rounded upwards,
if necessary, to the nearest 1/20 of 1%), as determined by the Agent, of
the rates per annum determined by the respective Reference Lenders to be
the average of the bid rates quoted to the respective Reference Lenders at
approximately 10:00 a.m. New York time (or as soon thereafter as
practicable) on the first day of such Interest Period by at least two
certificate of deposit dealers of recognized national standing selected by
the respective Reference Lenders for the purchase at face value of
certificates of deposit of the respective Reference Lenders having a term
comparable to such Interest Period and in an amount comparable to the
principal amount of the CD Loan to be made by the respective Reference
Lenders for such Interest Period.
If any Reference Lender is not participating in any Fixed Rate Loan during any
Interest Period therefor, the Fixed Base Rate for such Loan shall be determined
by reference to the amount of the Loan which such Reference Lender would have
made had it been participating in such Loan; provided that in the case of any
LIBOR Market Loan, the Fixed Base Rate for such Loan shall be determined with
reference to deposits of $10,000,000. If any Reference Lender does not timely
furnish such information for determination of any Fixed Base Rate, the Agent
shall determine such Fixed Base Rate on the basis of information timely
furnished by the remaining Reference Lenders.
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"Fixed Rate" shall mean, for any Fixed Rate Loan for any Interest
Period therefor, a rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Agent to be equal to the sum of (a) the Fixed
Base Rate for such Interest Period divided by 1 minus the Reserve Requirement
for such Loan for such Interest Period plus (b) if such Loan is a CD Loan, the
Assessment Rate for such Interest Period.
"Fixed Rate Loans" shall mean CD Loans, Eurodollar Loans and, for the
purposes of the definition of "Fixed Base Rate" in this Section 1.01 and in
Section 5 hereof, LIBOR Market Loans.
"GAAP" shall mean generally accepted accounting principles as in
effect from time to time.
"Guarantee" shall mean any guarantee, endorsement, contingent
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to,
Indebtedness, other obligations, net worth, working capital or earnings of any
Person, or a guarantee of the payment of dividends or other distributions upon
the stock of any Person, or any agreement to purchase, sell or lease (as lessee
or lessor) property, products, materials, supplies or services primarily for the
purpose of enabling any Person to make payment of its obligations or any
agreement to assure a creditor against loss, and including without limitation,
causing a bank to open a letter of credit for the benefit of another Person, but
excluding endorsements for collection or deposit in the ordinary course of
business. The terms "Guarantee" and "Guaranteed" used as a verb shall have a
correlative meaning.
"Indebtedness" shall mean, as to any Person: (a) indebtedness created,
issued or incurred by such Person for borrowed money (whether by loan or the
issuance and sale of debt securities); (b) obligations of such Person to pay the
deferred purchase or acquisition price of property, other than trade accounts
payable (other than for borrowed money) arising, and accrued expenses incurred,
in the ordinary course of business so long as such trade accounts payable are
paid within 90 days of the date the respective goods are delivered; (c)
obligations of such Person in respect of letters of credit or similar
instruments issued or accepted by banks and other financial institutions for the
account of such Person; (d) Capital Lease Obligations of such Person; and (e)
Indebtedness of others Guaranteed by such Person.
"Interest Period" shall mean:
(a) with respect to any Eurodollar Loan, each period commencing on the
date such Eurodollar Loan is made or Converted from a Loan of another Type
or the last day of the next preceding Interest Period for such Loan and
ending on the numerically corresponding day in the first, second, third or
sixth calendar month thereafter, as the Company may select as provided in
Section 4.05 hereof, except that each Interest Period which commences on
the last Business Day of a calendar month (or on any day for which there is
no numerically corresponding day in the appropriate subsequent calendar
month) shall end on the last Business Day of the appropriate subsequent
calendar month;
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(b) with respect to any CD Loan, each period commencing on the date
such CD Loan is made or Converted from a Loan of another Type or the last
day of the next preceding Interest Period for such Loan and ending on the
day 30, 60, 90 or 180 days thereafter, as the Company may select as
provided in Section 4.05 hereof;
(c) With respect to any Set Rate Loan, the period commencing on the
date such Set Rate Loan is made and ending on any Business Day up to 180
days thereafter, as the Company may select as provided in Section 2.03(b)
hereof; and
(d) With respect to any LIBOR Market Loan, the period commencing on
the date such LIBOR Market Loan is made and ending on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, as the Company may select as provided in Section 2.03(b)
hereof, except that each Interest Period which commences on the last
Business Day of a calendar month (or any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar
month.
Notwithstanding the foregoing: (i) no Interest Period with respect to Loans to
be made by any Lender may end after such Lender's Commitment Termination Date
(as in effect on the first day of such Interest Period); (ii) each Interest
Period which would otherwise end on a day which is not A Business Day shall end
on the next succeeding Business Day (or, in the case of an Interest Period for
Eurodollar Loans or LIBOR Market Loans, if such next succeeding Business Day
falls in the next succeeding calendar month, on the next preceding Business
Day); and (iii) notwithstanding clause (i) above, no Interest Period for any
Fixed Rate Loans or LIBOR Market Loans shall have a duration of less than one
month (in the case of Eurodollar Loans and LIBOR Market Loans) or 30 days (in
the case of CD Loans) and, if the Interest Period for any Fixed Rate Loans or
LIBOR Market Loans would otherwise be a shorter period, such Loans shall not be
available hereunder.
"LIBO Rate" shall mean, for any LIBOR Market Loan, a rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by the
Agent to be equal to the rate of interest specified in clause (a) of the
definition of "Fixed Base Rate" in this Section 1.01 for the Interest Period for
such Loan divided by 1 minus the Reserve Requirement for such Loan for such
Interest Period.
"LIBOR Auction" shall mean a solicitation of Money Market Quotes
setting forth Money Market Margins based on the LIBO Rate pursuant to Section
2.03 hereof.
"LIBOR Market Loans" shall mean Money Market Loans the interest rates
on which are determined on the basis of LIBO Rates pursuant to a LIBOR Auction.
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"Lien" shall mean, with respect to any asset, any mortgage, lien,
pledge, hypothecation, charge, security interest or encumbrance of any kind in
respect of such asset. For purposes of this Agreement, the Parent or any of its
Subsidiaries shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset.
"Loans" shall mean Money Market Loans and Syndicated Loans.
"Majority Lenders" shall mean Lenders having at least 66-2/3% of the
aggregate amount of the Commitments; provided that, if all of the Commitments
shall have terminated, Majority Lenders shall mean Lenders holding at least
66-2/3% of the aggregate unpaid principal amount of the Loans.
"Margin Stock" shall mean margin stock within the meaning of
Regulations U and X.
"Money Market Borrowing" shall have the meaning assigned to such term
in Section 2.03(b) hereof.
"Money Market Loans" shall mean the loans provided for by Section 2.03
hereof.
"Money Market Margin" shall have the meaning assigned to such term in
Section 2.03(c)(ii)(C) hereof.
"Money Market Quote" shall mean an offer in accordance with Section
2.03(c) hereof by a Lender to make a Money Market Loan with one single specified
interest rate.
"Money Market Quote Request" shall have the meaning assigned to such
term in Section 2.03(b) hereof.
"Money Market Rate" shall have the meaning assigned to such term in
Section 2.03(c)(ii)(D) hereof.
"Moody's" shall mean Moody's Investors Services, Inc.
"Multiemployer Plan" shall mean a Multiemployer plan defined as such
in Section 3(37) of ERISA to which contributions have been made by the Company,
the Parent or any ERISA Affiliate and which is covered by Title IV of ERISA.
"1935 Act" shall have the meaning given to that term in Section 7.11
hereof.
"1934 Act Reports" shall mean all periodic reports filed with the
Securities and Exchange Commission pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended.
8
"Notes" shall mean the promissory notes provided for by Section 2.08
hereof.
"Other FPC Agreement" shall mean the Third Amended and Restated Credit
Agreement A dated as of November 17, 1998 between the Company, the Lenders and
Chase, as agent for the Lenders thereunder, as the same may be amended and
supplemented and in effect from time to time.
"Parent" shall mean Florida Progress Corporation, a Florida
corporation.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"PCH Agreements" shall mean, collectively, (a) the Third Amended and
Restated Credit Agreement A dated as of November 17, 1998 between Progress
Capital Holdings, Inc., the Lenders and Chase, as agent for the Lenders
thereunder and (b) the Third Amended and Restated Credit Agreement B dated as of
November 17, 1998 between Progress Capital Holdings, Inc., the Lenders and
Chase, as agent for the Lenders thereunder, as each of said agreements may be
amended and supplemented and in effect from time to time.
"Person" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, trust, unincorporated organization or
government (or any agency, instrumentality or political subdivision thereof).
"Plan" shall mean an employee benefit or other plan established or
maintained by the Company, the Parent or any ERISA Affiliate and which is
covered by Title IV of ERISA, other than (a) a Multiemployer Plan and (b) any
such plan established or maintained by the Company or any ERISA Affiliate that
has assets and actuarial liabilities of less than $50,000,000 (a "Small Plan")
unless the aggregate assets or aggregate actuarial liabilities of all Small
Plans is in excess of $50,000,000.
"Post-Default Rate" shall mean, in respect of any principal of any
Loan or any other amount payable by the Company under this Agreement or any Note
that is not paid when due (whether at stated maturity, by acceleration or
otherwise), a rate per annum during the period from and including the due date
to but excluding the date on which such amount is paid in full equal to 1% above
the Base Rate as in effect from time to time (provided that, if the amount so in
default is principal of a Fixed Rate Loan or a Money Market Loan and the due
date thereof is a day other than the last day of an Interest Period therefor,
the "Post-Default Rate" for such principal shall be, for the period from and
including such due date to but excluding the last day of such Interest Period,
1% above the interest rate for such Loan as provided in Section 3.02 hereof and,
thereafter,'the rate provided for above in this definition).
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"Prime Rate" shall mean the rate of interest from time to time
announced by Chase at the Principal Office as its prime commercial lending rate.
"Principal Office" shall mean the principal office of the Agent and
Chase, presently located at 270 Park Avenue, New York, New York 10017.
"Quarterly Dates" shall mean the first day of January, April, July and
October in each year, the first of which shall be the first such day after the
date of this Agreement; provided that if any such day is not a Business Day,
then such Quarterly Date shall be the next succeeding Business Day.
"Reference Lenders" shall mean Chase and Morgan Guaranty Trust Company
of New York (or their Applicable Lending offices, as the case may be).
"Regulation D", "Regulation U " and "Regulation X" shall mean,
respectively, Regulation D, Regulation U and Regulation X of the Board of
Governors of the Federal Reserve System (or any successor), as the same may be
amended or supplemented from time to time.
"Regulatory Change" shall mean, with respect to any Lender, any change
after the date of this Agreement in United States Federal, state or foreign law
or regulations (including, without limitation, Regulation D) or the adoption or
making after such date of any interpretation, directive or request applying to a
class of banks including such Lender of or under any United States Federal,
state or foreign law or regulations (whether or not having the force of law) by
any court or governmental or monetary authority charged with the interpretation
or administration thereof.
"Reserve Requirement" shall mean, for any Interest Period for any
Fixed Rate Loan or LIBOR Market Loan, the average maximum rate at which reserves
(including any marginal, supplemental or emergency reserves) are required to be
maintained during such Interest Period under Regulation D by member banks of the
Federal Reserve System in New York City with deposits exceeding one billion
Dollars against (a) in the case of Eurodollar Loans or LIBOR Market Loans,
"Eurocurrency liabilities" (as such term is used in Regulation D) or (b) in the
case of CD Loans, non-personal Dollar time deposits in an amount of $100,000 or
more. Without limiting the effect of the foregoing, the Reserve Requirement
shall include any other reserves required to be maintained by such member banks
by reason of any Regulatory Change against (i) any category of liabilities which
includes deposits by reference to which the Fixed Base Rate for Eurodollar
Loans, LIBOR Market Loans or CD Loans (as the case may be) is to be determined
as provided in the definition of "Fixed Base Rate" in this Section 1.01 or (ii)
any category of extensions of credit or other assets which includes Eurodollar
Loans, CD Loans or LIBOR Market Loans.
"S&P" shall mean Standard & Poor's Corporation.
"Set Rate Auction" shall mean a solicitation of Money Market Quotes
setting forth Money Market Rates pursuant to Section 2.03 hereof.
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"Set Rate Loans" shall mean Money Market Loans the interest rates on
which are determined on the basis of Money Market Rates pursuant to a Set Rate
Auction.
"Subsidiary" shall mean, as to any Person, any corporation of which at
least a majority of the outstanding shares of stock having by the terms thereof
ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether or not at the time stock of any other class
or classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time directly or indirectly owned
or controlled by such Person or one or more Subsidiaries of such Person or by
such Person and one or more Subsidiaries of such Person. "Wholly-owned
Subsidiary" shall mean any such corporation of which all of such shares, other
than directors' qualifying shares, are so owned or controlled.
"Syndicated Loans" shall mean the loans provided for by Section 2.01
hereof.
"Syndicated Notes" shall mean the promissory notes provided for by
Section 2.08(a) hereof.
"Total Capitalization" shall mean, with respect to any Person, the sum
of the value of the common stock, retained earnings, and preferred and
preference stock of such Person (in each case, determined in accordance with
GAAP) plus all Indebtedness of such Person.
"Type" shall have the meaning given to that term in Section 1.03
hereof.
1.02 Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to the
Lenders hereunder shall (unless otherwise disclosed to the Lenders in writing)
be prepared, in accordance with generally accepted accounting principles applied
on a basis consistent with that used in the preparation of the latest financial
statements furnished to the Lenders hereunder after the date hereof.
(b) The Company will not change the last day of its fiscal year from
December 31 of each year, or the last days of the first three fiscal quarters in
each of its fiscal years from March 31, June 30 and September 30 of each year,
respectively.
1.03 Classes and Types of Loans. Loans hereunder are distinguished by
"Class" and by "Type". The "Class" of a Loan (or of a Commitment to make a Loan)
refers to whether such Loan is a Money Market Loan or a Syndicated Loan, each of
which constitutes a Class. The "Type" of a Loan refers to whether such Loan is a
Base Rate Loan, a CD Loan, a Eurodollar Loan, a Set Rate Loan, or a LIBOR Market
Loan, each of which constitutes a Type. Loans may be identified by both Class
and Type.
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Section 2. Commitments.
2.01 Syndicated Loans. Each Lender severally agrees, on the terms of
this Agreement, to make loans to the Company in Dollars during the period from
and including the first Business Day of 1992 to but not including such Lender's
Commitment Termination Date in an aggregate principal amount at any one time
outstanding up to but not exceeding the amount of such Lender's Commitment as
then in effect. Subject to the terms of this Agreement, during such period the
Company may borrow, repay and reborrow the amount of the Commitments by means of
Base Rate Loans, CD Loans and Eurodollar Loans and may Convert Syndicated Loans
of one Type into Syndicated Loans of another Type (as provided in Section 2.09
hereof) or Continue Syndicated Loans of one Type as Syndicated Loans of the same
Type; provided that there may be no more than 15 different Interest Periods for
Syndicated Loans outstanding at the same time.
2.02 Borrowings of Syndicated Loans. The Company shall give the Agent
(which shall promptly notify the Lenders) notice of each borrowing hereunder of
Syndicated Loans as provided in Section 4.05 hereof. Not later than noon New
York time on the date specified for each borrowing of Syndicated Loans
hereunder, each Lender shall make available the amount of the Syndicated Loan to
be made by it on such date to the Agent, at account number NYAO-DI-900-9-000002
maintained by the Agent with Chase at the Principal Office, in immediately
available funds. The amount so received by the Agent shall, subject to the terms
and conditions of this Agreement, be made available to the Company by depositing
the same, in immediately available funds, in an account of, and designated by,
the Company maintained at a bank in New York City.
2.03 Money Market Loans.
(a) In addition to borrowings of Syndicated Loans, the Company may, on
or after the first Business Day of 1992, as set forth in this Section 2.03,
request the Lenders to make offers to make Money Market Loans to the Company in
Dollars. The Lenders may, but shall have no obligation to, make such offers and
the Company may, but shall have no obligation to, accept any such offers in the
manner set forth in this Section 2.03. Money Market Loans may be LIBOR Market
Loans or Set Rate Loans, provided that:
(i) there may be no more than 15 different Interest Periods for
both Syndicated Loans and Money Market Loans outstanding at the same
time (for which purpose Interest Periods described in different
lettered clauses of the definition of the term "Interest Period" shall
be deemed to be different Interest Periods even if they are
coterminous);
(ii) the aggregate principal amount of all Money Market Loans,
together with the aggregate principal amount of all Syndicated Loans,
at any one time outstanding shall not exceed the aggregate amount of
the Commitments at such time.
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(b) When the Company wishes to request offers to make Money Market
Loans, it shall give the Agent (which shall promptly notify the Lenders) notice
(a "Money Market Quote Request") so as to be received no later than 11:00 a.m.
New York time on (x) the fourth Business Day prior to the date of borrowing
proposed therein" in the case of a LIBOR Auction or (y) the Business Day next
preceding the date of borrowing proposed therein, in the case of a Set Rate
Auction (or, in any such case, such other time and date as the Company and the
Agent, with the consent of the Majority Lenders (and with notice to each Lender
prior to the Money Market Quote Request for which such change is to be
effective), may agree). The Company may request offers to make Money Market
Loans for up to five different Interest Periods in a single notice (for which
purpose Interest Periods in different lettered clauses of the definition of the
term "Interest Period" shall be deemed to be different Interest Periods even if
they are coterminous); provided that the request for each separate Interest
Period shall be deemed to be a separate Money Market Quote Request for a
separate borrowing (a "Money Market Borrowing"). Each such notice shall be
substantially in the form of Exhibit C hereto and shall specify as to each Money
Market Borrowing:
(i) the proposed date of such borrowing, which shall be a
Business Day;
(ii) the aggregate amount of such Money Market Borrowing, which
shall be at least $10,000,000 (or in larger multiples of $1,000,000)
but shall not cause the limits specified in Section 2.03(a) hereof to
be violated;
(iii) the duration of the Interest Period applicable thereto;
(iv) whether the Money Market Quotes requested for a particular
Interest Period are seeking quotes for LIBOR Market Loans or Set Rate
Loans; and
(v) if the Money Market Quotes requested are seeking quotes for
Set Rate Loans, the date on which the Money Market Quotes are to be
submitted if it is before the proposed date of borrowing (the date on
which such Money Market Quotes are to be submitted is called the
"Quotation Date").
Except as otherwise provided in this Section 2.03(b), no Money Market Quote
Request shall be given within five Business Days (or such other number of days
as the Company and the Agent, with the consent of the Majority Lenders (and with
notice to each Lender prior to the effectiveness of such consent), may agree) of
any other Money Market Quote Request.
(c) (i) Each Lender may submit one or more Money Market Quotes, each
containing an offer to make a Money Market Loan in response to any Money Market
Quote Request; provided that, if the Company's request under Section 2.03(b)
hereof specified more than one Interest Period, such Lender may make a single
submission containing one or more Money Market Quotes for each such Interest
Period. Each Money Market Quote must be submitted to the Agent not later than
(x) 2:00 p.m. New York time on the fourth Business Day prior to the proposed
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date of borrowing, in the case of a LIBOR Auction or (y) 10:00 a.m. New York
time on the Quotation Date, in the case of a Set Rate Auction (or, in any such
case, such other time and date as the Company and the Agent, with the consent of
the Majority Lenders (and with notice to each Lender prior to the Money Market
Quote Request for which such change is to be effective), may agree); provided
that any Money Market Quote submitted by Chase (or its Applicable Lending
Office) may be submitted, and may only be submitted, if Chase (or such
Applicable Lending Office) notifies the Company of the terms of the offer
contained therein not later than (x) 1:00 p.m. New York time on the fourth
Business Day prior to the proposed date of borrowing, in the case of a LIBOR
Auction or (y) 9:45 a.m. New York time on the Quotation Date, in the case of a
Set Rate Auction. Subject to Sections 5.02(b), 5.03, 6.02 and 9 hereof, any
Money Market Quote so made shall be irrevocable except with the written consent
of the Agent given on the instructions of the Company.
(ii) Each Money Market Quote shall be substantially in the form of
Exhibit D hereto and shall specify:
(A) the proposed date of borrowing and the Interest Period
therefor;
(B) the principal amount of the Money Market Loan for which each
such offer is being made, which principal amount shall be at least
$5,000,000 or a larger multiple of $1,000,000; provided that the
aggregate principal amount of all Money Market Loans for which a
Lender submits Money Market Quotes (x) may be greater or less than the
aggregate Commitments of such Lender but (y) may not exceed the
principal amount of the Money Market Borrowing for a particular
Interest Period for which offers were requested;
(C) in the case of a LIBOR Auction, the margin above or below the
applicable LIBO Rate (the "Money Market Margin") offered for each such
Money Market Loan, expressed as a percentage (rounded upwards, if
necessary, to the nearest 1/10,000th of 1%) to be added to or
subtracted from the applicable LIBO Rate;
(D) in the case of a Set Rate Auction, the rate of interest per
annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%)
offered for each such Money Market Loan (the "Money Market Rate");
(E) the identity of the quoting Lender; and
(F) the maximum aggregate principal amount of all Money Market
Loans for which such offer is being made.
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Unless otherwise agreed by the Agent and the Company, no Money Market Quote
shall contain qualifying, conditional or similar language or propose terms other
than or in addition to those set forth in the applicable Money Market Quote
Request and, in particular, no Money Market Quote may be conditioned upon
acceptance by the Company of all (or some specified minimum) of the principal
amount of the Money Market Loan for which such Money Market Quote is being made.
(d) The Agent shall (x) in the case of a Set Rate Auction, as promptly
as practicable after the Money Market Quote is submitted (but in any event not
later than 10:15 a.m. New York time on the Quotation Date) or (y) in the case of
a LIBOR Auction, by 4:00 p.m. New York time on the day a Money Market Quote is
submitted, notify the Company of the terms (i) of any Money Market Quote
submitted by a Lender that is in accordance with Section 2.03(c) hereof and (ii)
of any Money Market Quote that amends, modifies or is otherwise inconsistent
with a previous Money Market Quote submitted by such Lender with respect to the
same Money Market Quote Request. Any such subsequent Money Market Quote shall be
disregarded by the Agent unless such subsequent Money Market Quote is submitted
solely to correct a manifest error in such former Money Market Quote. The
Agent's notice to the Company shall specify (A) the aggregate principal amount
of the Money Market Borrowing for which offers have been received and (B) the
respective principal amounts and Money Market Margins or Money Market Rates, as
the case may be, so offered by each Lender (identifying the Lender that made
each Money Market Quote).
(e) Not later than 11:00 a.m. New York time on (x) the third Business
Day prior to the proposed date of borrowing, in the case of a LIBOR Auction or
(y) the Quotation Date, in the case of a Set Rate Auction (or, in any such case,
such other time and date as the Company and the Agent, with the consent of the
Majority Lenders (and with notice to each Lender prior to the Money Market Quote
Request for which such change is to be effective), may agree), the Company shall
notify the Agent of its acceptance or nonacceptance of the offers so notified to
it pursuant to Section 2.03(d) hereof (and the failure of the Company to give
such notice by such time shall constitute nonacceptance) and the Agent shall
promptly notify each affected Lender. In the case of acceptance, such notice
shall specify the aggregate principal amount of offers for each Interest Period
that are accepted. The Company may accept any Money Market Quote in whole or in
part (provided that any Money Market Quote accepted in part shall be at least
$5,000,000 or in larger multiples of $1,000,000); provided that:
(i) the aggregate principal amount of each Money Market Borrowing may
not exceed the applicable amount set forth in the related Money Market
Quote Request;
(ii) the aggregate principal amount of each Money Market Borrowing
shall be at least $10,000,000 (or in larger multiples of $1,000,000) but
shall not cause the limits specified in Section 2.03(a) hereof to be
violated; and
(iii) the Company may not accept any offer where the Agent has advised
the Company that such offer fails to comply with Section 2.03(c)(ii) hereof
or otherwise fails to comply with the requirements of this Agreement
(including, without limitation, Section 2.03(a) hereof).
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(f) Any Lender whose offer to make any Money Market Loan has been
accepted shall, not later than noon New York time on the date specified for the
making of such Loan, make the amount of such Loan available to the Agent at
account number NYAO-DI-900-9-000002 maintained by the Agent with Chase at the
Principal Office in immediately available funds, for account of the Company. The
amount so received by the Agent shall, subject to the terms and conditions of
this Agreement, be made available to the Company on such date by depositing the
same, in immediately available funds, in an account of the Company maintained
with a bank in New York City designated by the Company.
(g) Except for the purpose and to the extent expressly stated in
Section 2.04(b) hereof, the amount of any Money Market Loan made by any Lender
shall not constitute a utilization of such Lender's Commitment.
2.04 Changes of Commitments.
(a) The amount of each Lender's Commitment shall be automatically
reduced to zero on such Lender's Commitment Termination Date.
(b) The Company shall have the right at any time or from time to time
(i) so long as no Syndicated Loans or Money Market Loans are outstanding, to
terminate the Commitments and (ii) to reduce the aggregate unused amount of the
Commitments (for which purpose use of the Commitments shall be deemed to include
the aggregate principal amount of all Money Market Loans); provided that (x) the
Company shall give notice of each such termination or reduction as provided in
Section 4.05 hereof, and (y) each partial reduction shall be in aggregate amount
at least equal to $10,000,000 and in multiples of $1,000,000 in excess thereof.
(c) The Commitments once terminated or reduced may not be reinstated.
2.05 Facility Fee. The Company shall pay to the Agent for account of
each Lender a facility fee on the amount of such Lender's Commitment, for the
period from and including January 1, 1992 to but not including the earlier of
the date such Commitment is terminated or such Lender's Commitment Termination
Date, at a rate per annum equal to the Applicable Facility Fee Rate. Accrued
facility fees payable to any Lender shall be payable on each Quarterly Date and
on the earlier of the date the Commitments are terminated and such Lender's
Commitment Termination Date.
2.06 Lending Offices. The Loans of each Type made by each Lender shall
be made and maintained at such Lender's Applicable Lending Office for Loans of
such Type.
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2.07 Several Obligations; Remedies Independent. The failure of any
Lender to make any Loan to be made by it on the date specified therefor shall
not relieve any other Lender of its obligation to make its Loan on such date,
but neither any Lender nor the Agent shall be responsible for the failure of any
other Lender to make a Loan to be made by such other Lender. The amounts payable
by the Company at any time hereunder and under the Notes to each Lender shall be
a separate and independent debt and each Lender shall be entitled to protect and
enforce its rights arising out of this Agreement and the Notes, and it shall not
be necessary for any other Lender or the Agent to consent to, or be joined as an
additional party in, any proceedings for such purposes.
2.08 Notes.
(a) The Company's obligation to repay the Syndicated Loans made by
each Lender, together with interest thereon, shall be evidenced by a single
promissory note of the Company substantially in the form of Exhibit A-1 hereto,
dated the date of delivery thereof, payable to such Lender in a principal amount
equal to the aggregate amount of its Commitments as originally in effect and
otherwise duly completed. The date, amount, Type, interest rate and duration of
Interest Period (if applicable) of each Syndicated Loan made by each Lender to
the Company, and each payment made on account of the principal thereof, shall be
recorded by such Lender on its books. Any such recording of loans on a Lender's
books shall be conclusive evidence of the amounts payable by the Company under
such Note, absent manifest error.
(b) The Company's obligation to repay the Money Market Loans made by
any Lender, together with interest thereon, shall be evidenced by a single
promissory note of the Company substantially in the form of Exhibit A-2 hereto,
dated the date of delivery thereof, payable to such Lender and otherwise duly
completed. The date, amount, Type, interest rate and duration of Interest Period
(if applicable) of each Money Market Loan made by each Lender to the Company,
and each payment made on account of the principal thereof, shall be recorded by
such Lender on its books. Any such recording of loans on a Lender's books shall
be conclusive evidence of the amounts payable by the Company under such Note,
absent manifest error.
2.09 Prepayments and Conversions or Continuations of Loans. Subject to
Section 4.04 hereof, the Company shall have the right to prepay Syndicated
Loans, or to Convert Syndicated Loans of one Type into Syndicated Loans of
another Type or Continue Syndicated Loans of one Type as Syndicated Loans of the
same Type, at any time or from time to time, provided that: (i) the Company
shall give the Agent notice of each such prepayment, Conversion or Continuation
as provided in Section 4.05 hereof; and (ii) Fixed Rate Loans may be prepaid or
Converted only on the last day of an Interest Period for such Loans.
Section 3. Payments of Principal and Interest.
3.01 Repayment of Loans.
(a) The Company hereby promises to pay to the Agent for account of
each Lender the principal of each Syndicated Loan made by such Lender, and each
Syndicated Loan made by such Lender shall mature, on such Lender's Commitment
Termination Date.
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(b) The Company hereby promises to pay to the Agent for account of
each Lender that makes any Money Market Loan the principal amount of such Money
Market Loan on the last day of the Interest Period for such Money Market Loan.
3.02 Interest. The Company hereby promises to pay to the Agent for
account of each Lender interest on the unpaid principal amount of each Loan made
by such Lender for the period from and including the date of such Loan to but
excluding the date such Loan shall be paid in full, at the following rates per
annum:
(a) during such periods as such Loan-is a Base Rate Loan, the Base
Rate (as in effect from time to time) plus the Applicable Margin (if any);
(b) during such periods as such Loan is a Fixed Rate Loan, for each
Interest Period relating thereto, the Fixed Rate for such Loan for such
Interest Period plus the Applicable Margin;
(c) if such Loan is a LIBOR Market Loan, the LIBO Rate for such Loan
for the Interest Period therefor plus (or minus) the Money Market Margin
quoted by the Lender making such Loan in accordance with Section 2.03
hereof; and
(d) if such Loan is a Set Rate Loan, the Set Rate for such Loan for
the Interest Period therefor quoted by the Lender making such Loan in
accordance with Section 2.03 hereof.
Notwithstanding the foregoing, the Company hereby promises to pay to the Agent
for account of each Lender interest at the applicable Post-Default Rate on any
principal of any Loan made by such Lender, and on any other amount payable by
the Company hereunder or under the Notes held by such Lender to or for account
of such Lender, which shall not be paid in full when due (whether at stated
maturity, by acceleration or otherwise), for the period from and including the
due date thereof to but excluding the date the same is paid in full. Accrued
interest on each Loan shall be payable (i) in the case of a Base Rate Loan,
quarterly on the Quarterly Dates, (ii) in the case of a Fixed Rate Loan or a
Money Market Loan, on the last day of each Interest Period therefor and, if such
Interest Period is longer than 90 days (in the case of a CD Loan or a Set Rate
Loan) or three months (in the case of a Eurodollar Loan or a LIBOR Market Loan),
at 90-day or three-month intervals, respectively, following the first day of
such Interest Period, and (iii) in the case of any Loan, upon the payment or
prepayment thereof or the Conversion of such Loan to a Loan of another Type (but
only on the principal amount so paid, prepaid or Converted), except that
interest payable at the Post-Default Rate shall be payable from time to time on
demand. Promptly after the determination of any interest rate provided for
herein or any change therein, the Agent shall give notice thereof to the Lenders
to which such interest is payable and to the Company.
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Section 4. Payments; Pro Rata Treatment; Computations; Etc.
4.01 Payments.
(a) Except to the extent otherwise provided herein, all payments of
principal, interest and other amounts to be made by the Company under this
Agreement and the Notes shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to the Agent at account
number NYAO-DI-900-9-000002 maintained by the Agent with Chase at the Principal
Office, not later than 2:00 p.m. New York time on the date on which such payment
shall become due (each such payment made after such time on such due date to be
deemed to have been made on the next succeeding Business Day).
(b) Any Lender for whose account any such payment is to be made, may
(but shall not be obligated to) debit the amount of any such payment which is
not made by such time to any ordinary deposit account of the Company (for
purposes of this Section 4.01(b), "ordinary deposit account of the Company"
shall not include any account in the name of a Person other than the Company)
with such Lender (with notice to the Company).
(c) The Company shall, at the time of making each payment under this
Agreement or any Note, specify to the Agent (which shall promptly notify the
intended recipients) thereof) the Loans or other amounts payable by the Company
hereunder to which such payment is to be applied (and in the event that it fails
to so specify, or if an Event of Default has occurred and is continuing, such
Lender may apply the amount of such payment received by it from the Agent in
such manner as such Lender may determine to be appropriate).
(d) Each payment received by the Agent under this Agreement or any
Note for account of a Lender shall be paid promptly to such Lender, in
immediately available funds, for account of such Lender's Applicable Lending
office for the Loan in respect of which such payment is made.
(e) If the due date of any payment under this Agreement or any Note
would otherwise fall on a day which is not a Business Day such date shall be
extended to the next succeeding Business Day and interest shall be payable for
any principal so extended for the period of such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise provided
herein: (a) each borrowing from the Lenders under Section 2.01 hereof shall be
made from the Lenders, each payment of facility fee under Section 2.05 hereof
shall be made for account of the Lenders, and each termination or reduction of
the amount of the Commitments under Section 2.04 hereof shall be applied to the
Commitments of the Lenders, pro rata according to the amounts of their
respective Commitments; (b) the making, Conversion and Continuation of
Syndicated Loans of a particular Type (other than Conversion provided for by
Section 5.04 hereof) shall be made pro rata among the Lenders according to the
amounts of their respective Commitments (in the case of making of Loans) or
Syndicated Loans (in the case of Conversion and Continuation of Loans) and the
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then current Interest Period for such Syndicated Loan of such Type shall be
coterminous; (c) each payment of principal of Syndicated Loans by the Company
shall be made for account of the Lenders pro rata in accordance with the
respective unpaid principal amounts of the Syndicated Loans held by the Lenders;
and (d) each payment or prepayment of interest on Syndicated Loans by the
Company shall be made for account of the Lenders pro rata in accordance with the
amounts of interest on Syndicated Loans due and payable to the respective
Lenders.
4.03 Computations. Interest on Loans shall be computed on the basis of
a year of 360 days and actual days elapsed (including the first day but
excluding the last day) occurring in the period for which payable and facility
fee shall be computed on the basis of a year of 365 or 366 days (as the case may
be) and actual days elapsed (including the first day but excluding the last day)
occurring in the period for which payable.
4.04 Minimum Amounts. Except for Conversions or prepayments made
pursuant to Section 5.04 hereof, each borrowing, Conversion and prepayment of
principal of Loans shall be in an amount at least equal to $10,000,000 and in
multiples of $1,000,000 in excess thereof (borrowings, Conversions or
prepayments of or into Loans of different Types or, in the case of Fixed Rate
Loans, having different Interest Periods at the same time hereunder to be deemed
separate borrowings, Conversions and prepayments for purposes of the foregoing,
one for each Type or Interest Period). Anything in this Agreement to the
contrary notwithstanding, the aggregate principal amount of Fixed Rate Loans of
each Type having the same Interest Period shall be in an amount at least equal
to $10,000,000 and in multiples of $1,000,000 in excess thereof and, if any
Fixed Rate Loans would otherwise be in a lesser principal amount for any period,
such Loans shall be Base Rate Loans during such period.
4.05 Certain Notices. Except as otherwise provided in Section 2.03
hereof with respect to Money Market Loans, notices by the Company to the Agent
of terminations or reductions of the Commitments, of borrowings, Conversions,
Continuations and optional prepayments of Loans and of Types of Loans and of the
duration of Interest Periods shall be irrevocable and shall be effective only if
received by the Agent not later than 10:00 a.m. New York time on the number of
Business Days prior to the date of the relevant termination, reduction,
borrowing, Conversion, Continuation or prepayment or the first day of such
Interest Period specified below:
20
Number of
Business
Notice Days Prior
Termination or reduction
of the Commitments five
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans same day
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans three
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, CD Loans two
Each such notice of termination or reduction shall specify the amount of the
Commitments to be terminated or reduced. Each such notice of borrowing,
Conversion, Continuation or optional prepayment shall specify the amount
(subject to Section 4.04 hereof) and Type of each Loan to be borrowed,
Converted, Continued or prepaid (and, in the case of a Conversion, the Type of
Loan to result from such Conversion) and the date of borrowing, Conversion,
Continuation or optional prepayment (which shall be a Business Day). Each such
notice of the duration of an Interest Period shall specify the Loans to which
such Interest Period is to relate. The Agent-shall promptly notify the Lenders
of the contents of each such notice. In the event that the Company fails to
select the Type of Loan, or the duration of any Interest Period, for any Fixed
Rate Loan within the time period and otherwise as provided in this Section 4.05,
such Loan (if outstanding as a Fixed Rate Loan) will be automatically Converted
into a Base Rate Loan on the last day of the then current Interest Period for
such Loan or (if outstanding as a Base Rate Loan) will remain as, or (if not
then outstanding) will be made as, a Base Rate Loan.
4.06 Non-Receipt of Funds by the Agent. Unless the Agent shall have
been notified by a Lender or the Company (the "Payor") prior to the date on
which the Payor is to make payment to the Agent of (in the case of a Lender) the
proceeds of a Loan to be made by it hereunder or (in the case of the Company) a
payment to the Agent for account of one or more of the Lenders hereunder (such
payment being herein called the "Required Payment"), which notice shall be
effective upon receipt, that the Payor does not intend to make the Required
Payment to the Agent, the Agent may assume that the Required Payment has been
21
made and may, in reliance upon such assumption (but shall not be required to),
make the amount thereof available to the intended recipient(s) on such date and,
if the Payor has not in fact made the Required Payment to the Agent, the
recipient(s) of such payment shall, on demand, repay to the Agent the amount so
made available together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by the Agent
until the date the Agent recovers such amount at a rate per annum equal to the
Federal Funds Rate for such day and, if such recipient(s) shall fail promptly to
make such payment, the Agent shall be entitled to recover such amount, on
demand, from the Payor, together with interest as aforesaid.
4.07 Sharing of Payments, Etc.
(a) The Company agrees that, in addition to (and without limitation
of) any right of set-off, banker's lien or counterclaim a Lender may otherwise
have, each Lender shall be entitled, at its option, to offset balances held by
it for account of the Company (for purposes of this Section 4.07(a), "balances
held for account of the Company" shall not include any balances held in an
account in the name of a Person other than the Company) at any of its offices,
in Dollars or in any other currency, against any principal of or interest on any
of such Lender's Loans, or any other amount payable to such Lender hereunder,
which is not paid when due (regardless of whether such balances are then due to
the Company), in which case it shall promptly notify the Company and the Agent
thereof, provided that such Lender's failure to give such notice shall not
affect the validity of such offset.
(b) If any Lender shall obtain payment of any principal of or interest
on any Loan made by it to the Company under this Agreement through the exercise
of any right of set-off, banker's lien or counterclaim or similar right or
otherwise, and, as a result of such payment, such Lender shall have received a
greater percentage of the principal or interest then due hereunder by the
Company to such Lender than the percentage received by any other Lenders, it
shall promptly purchase from such other Lenders participations in (or, if and to
the extent specified by such Lender, direct interests in) the Loans owing to
such other Lenders (or in interest due thereon, as the case may be) in such
amounts, and make such other adjustments from time to time as shall be
equitable, to the end that all the Lenders shall share the benefit of such
excess payment (net of any expenses which may be incurred by such Lender in
obtaining or preserving such excess payment) pro rata in accordance with the
unpaid principal of and/or interest on the Loans owing to each of the Lenders.
To such end all the Lenders shall make appropriate adjustments among themselves
(by the resale of participations sold or otherwise) if such payment is rescinded
or must otherwise be restored.
(c) The Company agrees that any Lender so purchasing a participation
(or direct interest) in the Loans made by other Lenders (or in interest due
thereon, as the case may be) may exercise all rights of set-off, banker's lien,
counterclaim or similar rights with respect to such participation as fully as if
such Lender were a direct holder of Loans in the amount of such participation.
22
(d) Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of the Company.
(e) If, under any applicable bankruptcy, insolvency or other similar
law, any Lender receives a secured claim in lieu of a set-off to which this
Section 4.07 applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights
of the Lenders entitled under this Section 4.07 to share in the benefits of any
recovery on such secured claim.
Section 5. Yield Protection and Illegality.
5.01 Additional Costs.
(a) The Company shall pay directly to each Lender from time to time
such amounts as such Lender may determine to be necessary to compensate it for
any costs which such Lender determines are attributable to its making or
maintaining of any Fixed Rate Loans or its obligation to make any Fixed Rate
Loans hereunder, or any reduction in any amount receivable by such Lender
hereunder in respect of any of such Loans or such obligation (such increases in
costs and reductions in amounts receivable being herein called "Additional
Costs"), resulting from any Regulatory Change which:
(i) subjects any Lender to taxation on, or changes the basis of
taxation of, any amounts payable to such Lender under this Agreement
or its Notes in respect of any of such Loans (other than taxes imposed
on or measured by the overall net income of such Lender or of its
Applicable Lending Office for any of such Loans by the jurisdiction in
which such Lender has its principal office or such Applicable Lending
Office); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than the Reserve Requirement utilized in the
determination of the Fixed Rate or LIBO Rate, as the case may be, for
such Loan) relating to any extensions of credit or other assets of, or
any deposits with or other liabilities of, such Lender (including any
of such Loans or any deposits referred to in the definition of "Fixed
Base Rate" in Section 1.01 hereof), or any commitment of such Lender
(including the Commitments of such Lender hereunder); or
(iii) imposes any other condition affecting this Agreement or its
Notes (or any of such extensions of credit or liabilities) or its
Commitments.
If any Lender requests compensation from the Company under this Section 5.01(a),
the Company may, by notice to such Lender (with a copy to the Agent), suspend
the obligation of such Lender to make or Continue Loans of the Type with respect
to which such compensation is requested-until the Regulatory Change giving rise
to such request ceases to be in effect (in which case the provisions of Section
5.04 hereof shall be applicable).
23
(b) Without limiting the effect of the provisions of paragraph (a) of
this Section 5.01, in the event that, by reason of any Regulatory Change, any
Lender either (i) incurs Additional Costs based on or measured by the excess
above a specified level of the amount of a category of deposits or other
liabilities of such Lender which includes deposits by reference to which the
interest rate on Eurodollar Loans or CD Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets of such Lender
which includes Eurodollar Loans or CD Loans or (ii) becomes subject to
restrictions on the amount of such a category of liabilities or assets which it
may hold, then, if such Lender so elects by notice to the Company (with a copy
..to the Agent), the obligation of such Lender to make or Continue Loans of such
Type hereunder shall be suspended until such Regulatory Change ceases to be in
effect (in which case the provisions of Section 5.04 hereof shall be
applicable).
(c) Without limiting the effect of the foregoing provisions of this
Section 5.01 (but without duplication), the Company shall pay directly to each
Lender from time to time on request such amounts as such Lender may determine to
be necessary to compensate such Lender (or, without duplication, the bank
holding company of which such Lender is a subsidiary) for any costs which it
determines are attributable to the maintenance by such Lender (or any Applicable
Lending Office or such bank holding company), pursuant to any law or regulation
or any interpretation, directive or request (whether or not having the force of
law) of any court or governmental or monetary authority
(i) following any Regulatory Change, or
(ii) implementing any risk-based capital guideline or requirement
(whether or not having the force of law and whether or not the failure
to comply therewith would be unlawful) heretofore or hereafter issued
by any government or governmental or supervisory authority
implementing at the national level the Basle Accord (including,
without limitation, the Final Risk-Based Capital Guidelines of the
Board of Governors of the Federal Reserve System (12 CFR Part 208 '
Appendix A; 12 CFR Part 225, Appendix A) and the Final Risk-Based
Capital Guidelines of the Office of the Comptroller of the Currency
(12 CFR Part 3, Appendix A)),
of capital in respect of its Commitment or Loans (such Compensation to include,
without limitation, an amount equal to any reduction of the rate of return on
assets or equity of such Lender (or any Applicable Lending Office or such bank
holding company) to a level below that which such Lender (or any Applicable
Lending office or such bank holding company) could have achieved with respect to
such Lender's Commitment or Loans hereunder but for such law, regulation,
interpretation, directive or request). For purposes of this Section 5.01(c),
"Basle Accord" shall mean the proposals for risk-based capital framework
described by the Basle Committee on Banking Regulations and Supervisory
Practices in its paper entitled "International Convergence of Capital
Measurement and Capital Standards" dated July 1988, as amended, modified and
supplemented and in effect from time to time or any replacement thereof.
24
(d) Each Lender will notify the Company of any event occurring after
the date of this Agreement that will entitle such Lender to compensation under
paragraph (a) or (c) of this Section 5.01 as promptly as practicable, but in any
event within 45 days, after such Lender obtains actual knowledge thereof;
provided, however, that if any Lender fails to give such notice within 45 days
after it obtains actual knowledge of such an event, such Lender shall, with
respect to compensation payable pursuant to this Section 5.01 in respect of any
costs resulting from such event, only be entitled to payment under this Section
5.01 for costs incurred from and after the date 45 days prior to the date that
such Lender does give such notice; and provided, further, that each Lender will
designate a different Applicable Lending Office for the Loans of such Lender
affected by such event if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the sole opinion of such
Lender, be disadvantageous to such Lender, except that such Lender shall have no
obligation to designate an Applicable Lending Office located in the United
States of America. Each Lender will furnish to the Company a certificate setting
forth the basis and amount of each request by such Lender for compensation under
paragraph (a) or (c) of this Section 5.01. Determinations and allocations by any
Lender for purposes of this Section 5.01 of the effect of any Regulatory Change
pursuant to paragraph (a) or (b) of this Section 5.01, or of the effect of
capital maintained pursuant to paragraph (c) of this Section 5.01, on its costs
or rate of return of maintaining Loans or its obligation to make Loans, or on
amounts receivable by it in respect of Loans, and of the amounts required to
compensate such Lender under this Section 5.01, shall be conclusive, provided
that such determinations and allocations are made on a reasonable basis and in a
manner consistent with the determinations and allocations made by such Lender
with respect to its other commitments and extensions of credit similarly
affected.
5.02 Limitation on Types of Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any Fixed Base Rate for
any Interest Period:
(a) the Agent determines, which determination shall be conclusive
provided that it is made on a reasonable basis, that quotations of
interest rates for the relevant deposits referred to in the definition
of "Fixed Base Rate" in Section 1.01 hereof are not being provided in
the relevant amounts or for the relevant maturities for purposes of
determining rates of interest for any Type of Fixed Rate Loans as
provided herein; or
(b) Lenders having more than 50% of the aggregate amount of the
Commitments determine (or any Lender that has outstanding a Money
Market Quote with respect to a LIBOR Market Loan determines), which
determination shall be conclusive provided that it is made on a
reasonable basis, and notify (or notifies, as the case may be) the
Agent that the relevant rates of interest referred to in the
definition of "Fixed Base Rate" in Section 1.01 hereof upon the basis
of which the rate of interest for Eurodollar Loans or CD Loans (or
LIBOR Market Loans, as the case may be) for such Interest Period is to
be determined are not likely adequately to cover the cost to such
Lenders (or to such quoting Lender) of making or maintaining such Type
of Loans for such Interest Period;
25
then the Agent shall give the Company and each Lender prompt notice thereof, and
so long as such condition remains in effect, the Lenders (or such quoting
Lender) shall be under no obligation to make additional Loans of such Type, to
Continue Loans of such Type or to Convert Loans of any other Type into Loans of
such Type and the Company shall, on the last day(s) of the then current Interest
Period for the outstanding Loans of such Type, either prepay such Loans or
Convert such Loans into another Type of Loan in accordance with Section 2.09
hereof.
5.03 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain Eurodollar
Loans or LIBOR Market Loans hereunder, then such Lender shall promptly notify
the Company thereof (with a copy to the Agent) and such Lender's obligation to
make Eurodollar Loans shall be suspended until such time as such Lender may
again make and maintain Eurodollar Loans (in which case the provisions of
Section 5.04 hereof shall be applicable), and such Lender shall no longer be
obligated to make any LIBOR Market Loan that it has offered to make.
5.04 Treatment of Affected Loans. If the obligation of any Lender to
make a particular Type of Fixed Rate Loans shall be suspended pursuant to
Section 5.01 or 5.03 hereof (Loans of such Type being herein called "Affected
Loans" and such Type being herein called the "Affected Type"), such Lender's
Affected Loans shall be automatically Converted into Base Rate Loans on the last
day(s) of the then current Interest Period(s) for Affected Loans (or, in the
case of a Conversion required by Section 5.01(b) or 5.03 hereof, on such earlier
date as such Lender may specify to the Company with a copy to the Agent) and,
unless and until such Lender gives notice as provided below that the
circumstances specified in Section 5.01 or 5.03 hereof which gave rise to such
Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been so
Converted, all payments and prepayments of principal which would otherwise
be applied to such Lender's Affected Loans shall be applied instead to its
Base Rate Loans;
(b) all Loans which would otherwise be made or Continued by such
Lender as Loans of the Affected Type shall be made or Continued instead as
Base Rate Loans and all Loans of such Lender which would otherwise be
Converted into Loans of the Affected Type shall be Converted instead (or
shall remain as) Base Rate Loans; and
(c) if Loans of other Lenders of the-Affected Type are subsequently
Converted into Loans of another Type (other than Base Rate Loans), such
Lender's Base Rate Loans shall be automatically Converted an the Conversion
date for such Loans of the other Lenders into Loans of such other Type to
the extent necessary so that, after giving effect thereto, all Loans held
by such Lender and the Lenders whose Loans are so Converted are held pro
rata (as to principal amounts, Types and Interest Periods) in accordance
with their respective Commitments.
26
5.05 Compensation. The Company shall pay to the Agent for account of
each Lender, upon the request of such Lender through the Agent, such amount or
amounts as shall be sufficient (in the reasonable opinion of such Lender) to
compensate it for any loss, cost or expense which such Lender determines is
attributable to:
(a) any payment or conversion of a Fixed Rate Loan or a Set Rate Loan
made by such Lender for any reason (including, without limitation, the
acceleration of the Loans pursuant to Section 9 hereof or the conversion of
Loans pursuant to Section 5.04 hereof) on a date other than the last day of
the Interest Period for such Loan; or
(b) any failure by the Company for any reason (including, without
limitation, the failure of any of the conditions precedent specified in
Section 6 hereof to be satisfied) to borrow a Fixed Rate Loan or a Set Rate
Loan (with respect to which, in the case of a Money Market Loan, the
Company has accepted a Money Market Quote) from such Lender on the date for
such borrowing specified in the relevant notice of borrowing given pursuant
to Section 2.02 or 2.03(b) hereof.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
which otherwise would have accrued on the principal amount so paid or converted
or not borrowed for the period from the date of such payment, conversion or
failure to borrow to the last day of the Interest Period for such Loan (or, in
the case of a failure to borrow, the Interest Period for such Loan which would
have commenced on the date specified for such borrowing) at the applicable rate
of interest for such Loan provided for herein over (ii) the interest component
of the amount such Lender would have bid in the London interbank market (if such
Loan is a Eurodollar Loan or a LIBOR Market Loan) or the United States secondary
certificate of deposit market (if such Loan is a CD Loan or a Set Rate Loan) for
Dollar deposits of leading banks in amounts comparable to such principal amount
and with maturities comparable to such period (as reasonably determined by such
Lender).
Section 6. Conditions Precedent.
6.01 Initial Loan. The obligation of any Lender to make its initial
Loan hereunder is subject to the receipt by the Agent of the following
documents, each of which shall be satisfactory to the Agent in form and
substance:
(a) Corporate Action. Certified copies of the articles of
incorporation and by-laws of the Company and all corporate action taken by
the Company approving this Agreement and the Notes and borrowings by the
Company hereunder (including, without limitation, a certificate setting
forth the resolutions of the Board of Directors of the Company adopted in
respect of the transactions contemplated hereby).
27
(b) Incumbency. A certificate of the Company in respect of each of the
officers (i) who is authorized to sign on its behalf this Agreement or the
Notes and (ii) who will, until replaced by another officer or officers duly
authorized for that purpose, act as its representative for the purposes of
signing documents and giving notices and other communications in connection
with this Agreement and the transactions contemplated hereby (and the Agent
and each Lender may conclusively rely on such certificate until it receives
notice in writing from the Company to the contrary).
(c) Officer's Certificate. A certificate of a vice president or
treasurer or assistant treasurer of the Company to the effect set forth in
the first sentence of Section 6.02 hereof.
(d) Notes. The Notes, duly completed and executed and delivered.
(e) Opinion of Counsel to the Company. An opinion of Kenneth E.
Armstrong, Esq., Vice President and General Counsel of the Company,
substantially in the form of Exhibit B hereto.
(f) PSC Approval. A copy of the order of the Florida Public Service
Commission authorizing the execution and delivery by the Company of the
Notes and its borrowings hereunder.
(g) Other Documents. Such other documents as the Agent or any Lender
may reasonably request.
6.02 Initial and Subsequent Loans. The obligation of any Lender to
make any Loan (including any Money Market Loan and such Lender's initial
Syndicated Loan) to the Company upon the occasion of each borrowing hereunder is
subject to the further conditions precedent that, both immediately prior to such
Loan and also after giving effect thereto: (i) no Default shall have occurred
and be continuing; and (ii) the representations and warranties made by the
Company in Section 7 hereof shall be true and complete on and as of the date of
the making of such Loan with the same force and effect as if made on and as of
such date. Each notice of borrowing by the Company hereunder shall constitute a
certification by the Company to the effect set forth in the preceding sentence
(both as of the date of such notice and, unless the Company otherwise notifies
the Agent prior to the date of such borrowing, as of the date of such
borrowing).
28
Section 7. Representations and Warranties. The Company represents and
warrants to the Lenders that:
7.01 Corporate Existence. The Company: (a) is a corporation duly
organized and validly existing under the laws of the State of Florida; (b) has
all requisite corporate power, and has all material governmental licenses,
authorizations, consents and approvals necessary to own its assets and carry on
its business as now being or as proposed to be conducted; and (c) is qualified
to do business in all jurisdictions in which the nature of the business
conducted by it makes such qualification necessary and where failure so to
qualify would have a material adverse effect on the consolidated financial
condition, operations or business taken as a whole of the Company and its
Consolidated Subsidiaries.
7.02 Financial Condition. The audited consolidated balance sheet of
the Company and its Consolidated Subsidiaries as at December 31, 1997 and the
related consolidated statements of income, shareholders' equity and cash flow of
the Company and its Consolidated Subsidiaries for the fiscal year ended on said
date, with the opinion thereon of KPMG Peat Marwick LLP, and the unaudited
consolidated balance sheet of the Company and its Consolidated Subsidiaries as
at September 30, 1998 and the related consolidated statements of income and cash
flow of the Company and its Consolidated Subsidiaries for the nine-month period
ended on such date, heretofore furnished to each of the Lenders, are complete
and correct and fairly present the consolidated financial condition of the
Company and its Consolidated Subsidiaries as at said dates and the consolidated
results of their operations for the fiscal year and nine-month period ended on
said dates (subject, in the case of such financial statements as at September
30, 1998, to normal year-end audit adjustments), all in accordance with
generally accepted accounting principles and practices applied on a consistent
basis (provided that such financial statements may contain condensed footnotes
prepared in accordance with Rule 10-01(a)(5) of Securities and Exchange
Commission Regulation S-X). Neither the Company nor any of its Subsidiaries had
on said dates any contingent liabilities, liabilities for taxes, unusual forward
or long-term commitments or unrealized or anticipated losses from any
unfavorable commitments, in each case material to the Company and its
Consolidated Subsidiaries taken as a whole, except as referred to or reflected
or provided for in said balance sheets as at said dates. Since September 30,
1998, there has been no material adverse change in the consolidated financial
condition, operations or business taken as a whole of the Company and its
Consolidated Subsidiaries from that set forth in said financial statements as at
said date.
7.03 Litigation. Except for the matters disclosed in the Company's
Annual Report on Form 10-K for the year ended December 31, 1997, and the
Company's Quarterly Reports on Form 10-Q for the quarters ended March 31, June
30, and September 30, 1998, there are no legal or arbitral proceedings or any
proceedings by or before any governmental or regulatory authority or agency, now
pending or (to the knowledge of the Company) threatened against the Company or
any of the Company's Subsidiaries which, if adversely determined, could have a
material adverse effect on the consolidated financial condition, operations or
business taken as a whole of the Company and its Consolidated Subsidiaries.
29
7.04 No Breach. None of the execution and delivery of this Agreement
and the Notes, the consummation of the transactions herein contemplated and
compliance with the terms and provisions hereof and thereof will conflict with
or result in a breach of, or require any consent under, the articles of
incorporation or by-laws of the Company, or any applicable law or regulation, or
any order, writ, injunction or decree of any court or governmental authority or
agency, or any agreement or instrument to which the Company or any of the
Company's Subsidiaries is a party or by which any of them is bound or to which
any of them is subject, or constitute a default under any such agreement or
instrument, or result in the creation or imposition of any Lien upon any of the
revenues or assets of the Company or any of the Company's Subsidiaries pursuant
to the terms of any such agreement or instrument.
7.05 Corporate Action. The Company has all necessary corporate power
and authority to execute, deliver and perform its obligations under this
Agreement and the Notes; the execution, delivery and performance by the Company
of this Agreement and the Notes have been duly authorized by all necessary
corporate action on the part of the Company; and this Agreement has been duly
and validly executed and delivered by the Company and each such document
constitutes, and each of the Notes when executed by the Company and delivered
for value will constitute, the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms, except to the extent that
enforcement may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally.
7.06 Approvals. Other than the approval of the Florida Public Service
Commission, no authorizations, approvals or consents of, and no filings or
registrations with, any governmental or regulatory authority or agency are
necessary for the execution, delivery or performance by the Company of this
Agreement or the Notes, or for the validity or enforceability of any thereof.
7.07 Use of Loans. The Company is not engaged principally, or as one
of its important activities, in the business of extending credit for the
purpose, whether immediate, incidental or ultimate, of buying or carrying Margin
Stock and no part of the proceeds of any Loan hereunder will be used to buy or
carry any Margin Stock.
7.08 ERISA. The Company and the ERISA Affiliates have fulfilled their
respective obligations under the minimum funding standards of ERISA and the Code
with respect to each Plan and are in compliance in all material respects with
the presently applicable provisions of ERISA and the Code, and have not incurred
any liability to the PBGC or any Plan or Multiemployer Plan (other than to make
contributions in the ordinary course of business).
30
7.09 Taxes. United States Federal income tax returns of the Parent and
its Subsidiaries have been examined and closed through the fiscal year of the
Parent ended December 31, 1985. The Parent and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Parent or any of its
Subsidiaries. The charges, accruals and reserves on the books of the Parent and
its Subsidiaries in respect of taxes and other governmental charges are, in the
opinion of the Company, adequate. If the Parent is a member of an affiliated
group of corporations filing consolidated returns for United States Federal
income tax purposes, it is the "common parent" of such group.
7.10 Investment Company Act. The Company 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.
7.11 Public Utility Holding Company Act. The Company is a "public
utility company" within the meaning of Section 2(a)(5) of the Public Utility
Holding Company Act of 1935 (the "1935 Act"). The Company is not a "holding
company" within the meaning of Section 2(a)(7) of the 1935 Act. The Company is
an "affiliate" within the meaning of Section 2(a)(11) of the 1935 Act of the
Parent and is a "subsidiary company" of the Parent within the meaning of Section
2(a)(8) of the 1935 Act. The Parent is a "holding company" within the meaning of
Section 2(a)(7) of the 1935 Act, but is entitled to and currently claims the
benefits of an exemption from the requirements of the 1935 Act (other than
Section 9(a)(2) thereof) pursuant to Rule 2 under Section 3(a)(1) of the 1935
Act. The Parent has filed with the Securities and Exchange Commission all
documents that are necessary to maintain such exemption in full force and effect
and such exemption is in full force and effect. Such exemption also provides the
Company with an exemption from all requirements of the 1935 Act relating to the
Company's status as a "subsidiary company" of the Parent. Neither the Company
nor the Parent has received any notification from the Securities and Exchange
Commission under Rule 6 under the 1935 Act with respect to its status under the
1935 Act. Except for proceedings that may arise should the Securities and
Exchange Commission adopt proposed Rule 17 under the 1935 Act, neither the
Company nor the Parent has any knowledge of any fact or other circumstance that
would provide the Securities and Exchange Commission with a basis for seeking to
regulate the Company as a holding company under the 1935 Act or for seeking to
revoke the exemption under the 1935 Act presently claimed by the Parent. No Loan
will be made in violation of the provisions of the 1935 Act or any rule or
regulation thereunder, for purposes of Section 26(c) thereof.
Section 8. Covenants of the Company. The Company agrees that, so long
as any of the Commitments are in effect and until payment in full of all Loans
hereunder, all interest thereon and all other amounts payable by the Company
hereunder:
8.01 Financial Statements. The Company shall deliver to each of the
Lenders:
(a) as soon as available and in any event within 60 days after the end
of each quarterly fiscal period of each fiscal year of the Company,
consolidated statements of income and cash flow of the Company and its
Consolidated Subsidiaries for such period and for the period from the
beginning of the respective fiscal year to the end of such period, and the
related consolidated balance sheet as at the end of such period, setting
forth in each case in comparative form the corresponding consolidated
figures for the corresponding period in the preceding fiscal year,
accompanied by a certificate of the Treasurer, an Assistant Treasurer, the
Chief Financial officer or the Controller of the Company, which certificate
shall state that said financial statements fairly present the consolidated
financial condition and results of operations of the Company and its
31
Consolidated Subsidiaries in accordance with generally accepted accounting
principles, consistently applied, as at the end of, and for, such period
(subject to normal year-end audit adjustments and provided that such
financial statements may contain condensed footnotes prepared in accordance
with Rule 10-01(a)(5) of Securities and Exchange Commission Regulation
S-X);
(b) as soon as available and in any event within 120 days after the
end of each fiscal year of the Company, consolidated statements of income,
shareholders' equity and cash flow of the Company and its Consolidated
Subsidiaries for such year and the related consolidated balance sheet as at
the end of such year, setting forth in each case in comparative form the
corresponding consolidated figures for the preceding fiscal year, and
accompanied, in the case of said consolidated statements and balance sheet,
by an opinion thereon of independent certified public accountants of
recognized national standing, which opinion shall state that said
consolidated financial statements fairly present the consolidated financial
condition and results of operations of the Company and its Consolidated
Subsidiaries as at the end of, and for, such fiscal year;
(c) promptly upon their becoming available, copies of all registration
statements and regular periodic reports, if any, which the Company shall
have filed with the Securities and Exchange Commission (or any governmental
agency substituted therefor) or any national securities exchange;
(d) promptly upon the mailing thereof to the shareholders of the
Parent generally, copies of all financial statements, reports and proxy
statements so mailed;
(e) if any of the events or conditions specified below with respect to
any Plan or Multiemployer Plan shall have occurred or exist, promptly upon
filing any required notice thereof with PBGC, a copy of such notice or
other report to PBGC and a statement signed by a senior financial officer
of the Company setting forth details respecting such event or condition and
the action, if any, which the Company or an ERISA Affiliate proposes to
take with respect thereto:
(i) any reportable event, as defined in Section 4043(b) of ERISA
and the regulations issued thereunder, with respect to a Plan, as to
which PBGC has not by regulation waived the requirement of Section
4043(a) of ERISA that it be notified within 30 days of the occurrence
of such event (provided that a failure to meet the minimum funding
standard of Section 412 of the Code or Section 302 of ERISA shall be a
reportable event regardless of the issuance of any waivers in
accordance with Section 412(d) of the Code);
(ii) the filing under Section 4041 of ERISA of a notice of intent
to terminate any Plan or the termination of any Plan;
32
(iii) the institution by PBGC of proceedings under Section 4042
of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by the Company or any ERISA
Affiliate of a notice from a Multiemployer Plan that such action has
been taken by PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal by the Company, the
Parent or any ERISA Affiliate under Section 4201 or 4204 of ERISA from
a Multiemployer Plan, or the receipt by the Company or any ERISA
Affiliate of notice from a Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA
or that it intends to terminate or has terminated under Section 4041A
of ERISA; and
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Company or any ERISA Affiliate to
enforce Section 515 of ERISA, which proceeding is not dismissed within
30 days;
(f) promptly after the Company knows or has reason to know that any
Default has occurred, a notice of such Default describing the same in reasonable
detail, specifying that such notice is a "Notice of Default" and, together with
such notice or as soon thereafter as possible, a description of the action that
the Company has taken and proposes to take with respect thereto; and
(g) from time to time such other information regarding the business,
affairs or financial condition of the Company or any of the Company's
Subsidiaries (including, without limitation, any Plan or Multiemployer Plan and
any reports or other information required to be filed under ERISA) as any Lender
or the Agent may reasonably request.
The Company will furnish to each Lender, at the time it furnishes each set of
financial statements pursuant to paragraph (a) or (b) above, a certificate of
the Treasurer, an Assistant Treasurer, the Chief Financial Officer or the
Controller of the Company to the effect that no Default has occurred and is
continuing (or, if any Default has occurred and is continuing, describing the
same in reasonable detail and describing the action that the Company has taken
and proposes to take with respect thereto).
8.02 Litigation. The Company will promptly give to each Lender notice
(which notice may be given by the Company through the Parent and may be in the
form of the Company's or the Parent's 1934 Act Reports) of all legal or arbitral
proceedings, and of all proceedings by or before any governmental or regulatory
authority or agency, and any material development in respect of such legal or
other proceedings, affecting the Company or any of the Company's Subsidiaries,
except proceedings which, if adversely determined, would not have a material
adverse effect on the consolidated financial condition, operations or business
taken as a whole of the Company and its Consolidated Subsidiaries.
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8.03 Corporate Existence, Etc. The Company will: preserve and maintain
its corporate existence and all of its material rights, privileges and
franchises; comply with the requirements of all applicable laws, rules,
regulations and orders of governmental or regulatory authorities if failure to
comply with such requirements would materially and adversely affect the
consolidated financial condition, operations or business taken as a whole of the
Company and its Consolidated Subsidiaries, except for any such laws, rules,
regulations or orders that the Company is contesting in good faith and by proper
proceedings; pay and discharge all taxes, assessments and governmental charges
or levies imposed on it or on its income or profits or on any of its property
prior to the date on which penalties attach thereto, except for any such tax,
assessment, charge or levy the payment of which is being contested in good faith
and by proper proceedings and against which adequate reserves are being
maintained; maintain all of its properties used or useful in its business in
good working order and condition, ordinary wear and tear excepted; and permit
representatives of any Lender or the Agent, during normal business hours, to
examine, copy and make extracts from its books and records, to inspect its
properties, and to discuss its business and affairs with its officers, all to
the extent reasonably requested by such Lender or the Agent (as the case may
be).
8.04 Prohibition of Fundamental Changes. The Company will not enter
into any transaction of merger or consolidation or amalgamation, or liquidate,
wind up or dissolve itself (or suffer any liquidation or dissolution), except
that the Company may merge into the Parent so long as the Parent is the
surviving corporation and assumes all of the Company's obligations under this
Agreement and the Notes and so long as both prior to such merger and after
giving effect thereto no Default shall have occurred and be continuing. The
Company will not convey, sell, lease, transfer or otherwise dispose of, in one
transaction or a series of transactions, all or any substantial part of its
business or assets, whether now owned or hereafter acquired.
8.05 Use of Proceeds. The Company will use the proceeds of the Loans
hereunder for its general corporate purposes (in compliance with all applicable
legal and regulatory requirements); provided that neither the Agent nor any
Lender shall have any responsibility as to the use of any of such proceeds.
8.06 Indebtedness to Capitalization Ratio. The Company will not permit
the ratio of (a) all Indebtedness of the Company and its Consolidated
Subsidiaries to (b) the Total Capitalization of the Company and its Consolidated
Subsidiaries to exceed .65 to 1 at any time.
8.07 Negative Pledge. The Company will not, and will not permit any
Subsidiary to, create, assume or suffer to exist any Lien on any of its
property, assets or revenues, whether now owned or hereafter acquired, except
for:
(a) Liens existing on the date hereof securing Indebtedness, other
than Indebtedness secured by the Existing Indenture, outstanding on
November 17, 1998 in an aggregate principal amount not in excess of
$240,865,000;
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(b) any Lien existing on any asset of any corporation at the time such
corporation becomes a Subsidiary of the Company and not created in
contemplation of such event;
(c) any Lien on any asset securing Indebtedness incurred or assumed
for the purpose of financing all or any part of the cost of acquiring such
asset, provided that such Lien attaches to such asset concurrently with or
within 90 days after the acquisition thereof;
(d) any Lien on any asset of any corporation existing at the time such
corporation is merged into or is consolidated with the Company or one of
its Subsidiaries and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof by
the Company or one of its Subsidiaries and not created in contemplation of
such acquisition;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that such Indebtedness is not
increased and is not secured by any additional assets;
(g) any Lien arising pursuant to any order of attachment, distraint or
similar legal process arising in connection with court proceedings so long
as the execution or other enforcement thereof is effectively stayed and the
claims secured thereby are being contested in good faith by appropriate
proceedings;
(h) Liens incidental to conduct of its business or the ownership of
its assets which (i) do not secure Indebtedness and (ii) do not in the
aggregate materially detract from the value of its assets or materially
impair the use thereof in the operation of its business;
(i) the Liens created by the Existing Indenture; and
(j) Liens upon rights-of-way for transmission or distribution line
purposes; provided that the Company or one of its Consolidated
Subsidiaries, as the case may be has, in the opinion of counsel for the
Company, power under eminent domain or similar statutes to condemn and
acquire easements or rights-of-way sufficient for its purposes over the
land covered by the rights-of-way in question or other lands adjacent
thereto.
Section 9. Events of Default. If one or more of the following events
(herein called "Events of Default") shall occur and be continuing:
(a) The Company shall default in the payment when due of any principal
of or interest on any Loan or any other amount payable by it hereunder; or
35
(b) The Company or any of its Subsidiaries shall default in the
payment when due of any principal of or interest on any of its other
indebtedness aggregating $10,000,000 or more; or any event specified in any
note, agreement, indenture or other document evidencing or relating to any
such indebtedness in the aggregate amount set forth above in this clause
(b) shall occur if the effect of such event is to cause, or (with the
giving of any notice or the lapse of time or both) to permit the holder or
holders of such indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause, such indebtedness to become due, or to be
prepaid in full (whether by redemption, purchase or otherwise), prior to
its stated maturity; or
(c) Any representation, warranty or certification made or deemed made
herein (or in any modification or supplement hereto) by the Company, or any
certificate furnished to any Lender or the Agent pursuant to the provisions
hereof (or thereof), shall prove to have been false or misleading as of the
time made or furnished in any material respect; or
(d) The Company shall default in the performance of any of its
obligations under any of Sections 8.01(f) or 8.04 hereof; or the Company
shall default in the performance of any of its other obligations in this
Agreement and such default shall continue unremedied for a period of 30
days after notice thereof to the Company by the Agent or any Lender
(through the Agent); or any "Event of Default" under and as defined in the
Other FPC Agreement shall be continuing; or
(e) The Company or any of the Company's Subsidiaries shall admit in
writing its inability to, or be generally unable to, pay its debts as such
debts become due; or
(f) The Company or any of the Company's Subsidiaries shall (i) apply
for or consent to the appointment of, or the taking of possession by, a
receiver, custodian, trustee or liquidator of itself or of all or a
substantial part of its property, (ii) make a general assignment for the
benefit of its creditors, (iii) commence a voluntary case under the
Bankruptcy Code (as now or hereafter in effect), (iv) file a petition
seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or readjustment of
debts, (v) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an involuntary
case under the Bankruptcy Code (as now or hereafter in effect), or (vi)
take any corporate action for the purpose of effecting any of the
foregoing; or
(g) A proceeding or case shall be commenced, without the application
or consent of the Company or any of the Company's Subsidiaries, in any
court of competent jurisdiction seeking (i) its liquidation,
reorganization, dissolution or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like of the Company or such Subsidiary or of
36
all or any substantial part of its assets, or (iii) similar relief in
respect of the Company or such Subsidiary under any law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any of
the foregoing shall be entered and continue unstayed and in effect, for a
period of 60 or more days; or an order for relief against the Company or
such Subsidiary shall be entered in an involuntary case under the
Bankruptcy Code (as now or hereafter in effect); or
(h) A final judgment or judgments for the payment of money in excess
of $10,000,000 in the aggregate shall be rendered by a court or courts
against the Company and/or any of the Company's Subsidiaries and the same
shall not be discharged (or provision shall not be made for such
discharge), or a stay of execution thereof shall not be procured, within 30
days from the date of entry thereof and the Company or the relevant
Subsidiary shall not, within said period of 30 days, or such longer period
during which execution of the same shall have been stayed, appeal therefrom
and cause the execution thereof to be stayed during such appeal; or
(i) An event or condition specified in Section 8.01(e) hereof shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a
result of such event or condition, together with all other such events or
conditions, the Company, the Parent or any ERISA Affiliate shall incur or
in the opinion of the Majority Lenders shall be reasonably likely to incur
a liability to a Plan, a Multiemployer Plan or PBGC (or any combination of
the foregoing) which is, in the determination of the Majority Lenders,
material in relation to the consolidated financial condition, operations or
business taken as a whole of the Company and its Consolidated Subsidiaries
or of the Parent and its Consolidated Subsidiaries; or
(j) Any authorization, approval or consent of any Governmental or
regulatory authority or agency necessary for the execution, delivery or
performance by the Company of this Agreement or the Notes, or for the
validity or enforceability thereof, shall, after the date of the receipt by
the Agent of the order referred to in Section 6.01(g) hereof, cease to be
in full force and effect; or
(k) The Company shall cease to be a Wholly-owned Subsidiary of the
Parent;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (f) or (g) of this Section 9 with respect to the Company, (A) the Agent
may and, upon request of the Majority Lenders, shall, by notice to the Company,
cancel the Commitments and they shall thereupon terminate, and (B) the Agent may
and, upon request of the Majority Lenders shall, by notice to the Company
declare the principal amount then outstanding of, and the accrued interest on,
37
the Loans and all other amounts payable by the Company hereunder and under the
Notes (including, without limitation, any amounts payable under Section 5.05
hereof) to be forthwith due and payable, whereupon such amounts shall be
immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by the
Company; and (2) in the case of the occurrence of an Event of Default referred
to in clause (f) or (g) of this Section 9 with respect to the Company, the
Commitments shall automatically be canceled and the principal amount then
outstanding of, and the accrued interest on, the Loans and all other amounts
payable by the Company hereunder and under the Notes (including, without
limitation, any amounts payable under Section 5.05 hereof) shall automatically
become immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by the
Company.
Section 10. The Agent.
10.01 Appointment, Powers and Immunities. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent hereunder with
such powers as are specifically delegated to the Agent by the terms of this
Agreement, together with such other powers as are reasonably incidental thereto.
The Agent (which term as used in this sentence and in Section 10.05 and the
first sentence of Section 10.06 hereof shall include reference to its affiliates
and its own and its affiliates' officers, directors, employees and agents): (a)
shall have no duties or responsibilities except those expressly set forth in
this Agreement, and shall not by reason of this Agreement be a trustee for any
Lender; (b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement, or in any
certificate or other document referred to or provided for in, or received by any
of them under, this Agreement, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement, any Note or any
other document referred to or provided for herein or for any failure by the
Company or any other Person to perform any of its obligations hereunder or
thereunder; (c) shall not be required to initiate or conduct any litigation or
collection proceedings hereunder; and (d) shall not be responsible for any
action taken or omitted to be taken by it hereunder or under any other document
or instrument referred to or provided for herein or in connection herewith,
except for its own gross negligence or willful misconduct. The Agent may employ
agents and attorneys-in-fact and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it in good faith.
The Agent may deem and treat the payee of any Note as the holder thereof for all
purposes hereof unless and until a written notice of the assignment or transfer
thereof shall have been filed with the Agent, together with the written consent
of the Company to such assignment or transfer.
10.02 Reliance by Agent. The Agent shall be entitled to rely upon any
certification, notice or other communication (including any thereof by
telephone, telex, telegram or cable) believed by it to be genuine and correct
and to have been signed or sent by or on behalf of the proper Person or Persons,
and upon advice and statements of legal counsel, independent accountants and
other experts selected by the Agent. As to any matters not expressly provided
for by this Agreement, the Agent shall in all cases be fully protected in
38
acting, or in refraining from acting, hereunder in accordance with instructions
signed by the Majority Lenders, and such instructions of the Majority Lenders
and any action taken or failure to act pursuant thereto shall be binding on all
of the Lenders.
10.03 Defaults. The Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default (other than the non-payment of principal
of or interest on Loans or of facility fees) unless the Agent has received
notice from a Lender or the Company specifying such Default and stating that
such notice is a "Notice of Default". In the event that the Agent receives such
a notice of the occurrence of a Default, the Agent shall give prompt notice
thereof to the Lenders (and shall give each Lender prompt notice of each such
non-payment). The Agent shall (subject to Section 10.07 hereof) take such action
with respect to Default as shall be directed by the Majority Lenders, provided
that, unless and until the Agent shall have received such directions, the Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default as it shall deem advisable in the best
interest of the Lenders.
10.04 Rights as a Lender. With respect to its Commitment and the Loans
made by it, Chase (and any successor acting as Agent) in its capacity as a
Lender hereunder shall have the same rights and powers hereunder as any other
Lender and may exercise the same as though it were not acting as the Agent, and
the term "Lender" or "Lenders" shall, unless the context otherwise indicates,
include the Agent in its individual capacity. Chase (and any successor acting as
Agent) and its affiliates may (without having to account therefor to any Lender)
accept deposits from, lend money to and generally engage in any kind of banking,
trust or other business with the Company (and any of its Subsidiaries or
Affiliates) as if it were not acting as the Agent, and Chase and its affiliates
may accept fees and other consideration from the Company for services in
connection with this Agreement or otherwise without having-to account for the
same to the Lenders.
10.05 Indemnification. The Lenders agree to indemnify the Agent (to
the extent not reimbursed under Section 11.03 hereof, but without limiting the
obligations of the Company under said Section 11.03) ratably in accordance with
the aggregate amount of their respective Commitments, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in any way relating to or
arising out of this Agreement or any other documents contemplated by or referred
to herein or the transactions contemplated hereby (including, without
limitation, the costs and expenses which the Company is obligated to pay under
Section 11.03 hereof but excluding, unless a Default has occurred and is
continuing, normal administrative costs and expenses incident to the performance
of its agency duties hereunder) or the enforcement of any of the terms hereof or
of any such other documents, provided that no Lender shall be liable for any of
the foregoing to the extent they arise from the gross negligence or willful
misconduct of the party to be indemnified.
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10.06 Non-Reliance on Agent and Other Lenders. Each Lender agrees that
it has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Company and its Subsidiaries and decision to enter
into this Agreement and that it will, independently and without reliance upon
the Agent or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under this Agreement. The Agent shall
not be required to keep itself informed as to the performance or observance by
the Company of this Agreement or any other document referred to or provided for
herein or to inspect the properties or books of the Company or any of its
Subsidiaries. Except for notices, reports and other documents and information
expressly required to be furnished to the Lenders by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the affairs, financial condition or
business of the Company or any of its Subsidiaries (or any of their affiliates)
which may come into the possession of the Agent or any of its affiliates.
10.07 Failure to Act. Except for action expressly required of the
Agent hereunder, the Agent shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall receive further assurances to its
satisfaction from the Lenders of their indemnification obligations under Section
10.05 hereof against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action.
10.08 Resignation or Removal of Agent. Subject to the appointment and
acceptance of a successor Agent as provided below, the Agent may resign at any
time by giving notice thereof to the Lenders and the Company, and the Agent 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 Agent. If no successor Agent shall have been so appointed by
the Majority Lenders and shall have accepted such appointment within 30 days
after the retiring Agent's giving of notice of resignation or the Majority
Lenders' removal of the retiring Agent, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent, which shall be a bank which has an
office in New York, New York and (unless it is a Lender) a combined capital and
surplus of at least $200,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations hereunder. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Section 10.08 shall continue
in effect for its benefit in respect of any actions taken or omitted to be taken
by it while it was acting as the Agent.
10.09 Agency Fee. So long as the Commitments are in effect and until
payment in full of the principal of and interest on the Loans and all other
amounts payable by the Company hereunder, the Company will pay to the Agent an
agency fee in an amount previously agreed, payable annually in advance on the
Quarterly Date falling on or nearest to December 1 in each year. Such fee, once
paid, shall be non-refundable. The appointment of a successor Agent under
Section 10.08 hereof shall not increase or otherwise modify the Company's
obligations under this Section 10.09.
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10.10 Auction Fee. The Company agrees to pay to the Agent an auction
fee in an amount previously agreed, payable on each day that the Company
delivers a Money Market Quote Request.
Section 11. Miscellaneous.
11.01 Waiver. No failure on the part of the Agent or any Lender to
exercise and no delay in exercising, and no course of dealing with respect to,
any right, power or privilege under this Agreement or any Note shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege under this Agreement or any Note preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
11.02 Notices. All notices and other communications provided for
herein (including, without limitation, any modifications of, or waivers or
consents under,. this Agreement) shall be given or made by telex, telecopy,
telegraph, cable or in writing (or, with respect to notices given pursuant to
Section 2.03 hereof, by telephone, confirmed in writing by telex by the close of
business on the day the notice is given) and telexed, telecopied, telegraphed,
cabled, mailed or delivered (or telephoned, as the case may be) to the intended
recipient at the "Address for Notices" specified below its name on the signature
pages hereof; or, as to any party, at such other address as shall be designated
by such party in a notice to each other party. Except as otherwise provided in
this Agreement, all such communications shall be deemed to have been duly given
when transmitted by telex or telecopier, delivered to the telegraph or cable
office or personally delivered or, in the case of a mailed notice, upon receipt,
in each case given or addressed as aforesaid.
11.03. Expenses, Etc.
(a) The Company agrees to pay or reimburse each of the Lenders and the
Agent for all reasonable out-of-pocket costs and expenses of the Agent
(including, without limitation, the reasonable fees and expenses of counsel to
the Agent), in connection with the negotiation, preparation, execution and
delivery of this Agreement and the Notes and the making of the Loans hereunder.
(b) The Company agrees to pay or reimburse each of the Lenders and the
Agent for (i) all reasonable out-of-pocket costs and expenses of the Agent
(including reasonable counsel's fees) in connection with any amendment,
modification or waiver of any of the terms of this Agreement or any of the Notes
and (ii) all costs and expenses of the Lenders and the Agent (including
reasonable counsel's fees for each Lender and for the Agent) in connection with
any Default and any enforcement or collection proceedings resulting therefrom.
(c) The Company agrees to pay all transfer, stamp,, documentary or
other similar taxes, assessments or charges levied by any governmental or
revenue authority in respect of this Agreement or any of the Notes or any other
document referred to herein.
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11.04 Amendments, Etc. Except as otherwise expressly provided in this
Agreement, any provision of this Agreement may be amended or modified only by an
instrument in writing signed by the Company, the Agent and the Majority Lenders,
or by the Company and the Agent acting with the consent of the Majority Lenders,
and any provision of this Agreement may be waived by the Majority Lenders or by
the Agent acting with the consent of the Majority Lenders; provided that no
amendment, modification or waiver shall, unless by an instrument signed by all
of the Lenders or by the Agent acting with the consent of all of the Lenders:
(i) extend the term, or extend the time or waive any requirement for the
reduction or termination, of, or increase, the Commitments (except to the extent
contemplated by the definition of "Commitment Termination Date" in Section 1.01
hereof); (ii) extend the date fixed for the payment of principal of or interest
on any Loan or any fees or other amounts payable hereunder; (iii) reduce the
amount of any payment of principal thereof or the rate at which interest is
payable thereon or any fee is payable hereunder; (iv) alter the terms of Section
8.06 or 11.06(a) hereof or of this Section 11.04; or (v) amend the definition of
the term "Majority Lenders"; and provided, further, that any amendment of
Section 10 hereof shall also require the consent of the Agent.
11.05 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
11.06 Assignments and Participations.
(a) The Company may not assign its rights or obligations hereunder or
under the Notes without the prior consent of all of the Lenders and the Agent.
(b) No Lender may assign any of its Loans, its Notes, or its
Commitment in whole or in part without the prior consent of the Company and the
Agent (such consent of the Agent not to be unreasonably withheld); provided
that, (i) each such assignment by a Lender of its Syndicated Loans or its
Commitment shall be made so that the assignee holds the same pro rata portions
of the Syndicated Loans and the Commitments; and (ii) each such assignment by a
Lender of its Syndicated Loans and Commitment shall be made concurrently with an
assignment by it to the same assignee of the same pro rata portion of its
outstanding "Syndicated Loans" and its "Commitment" under and as defined in the
Other FPC Agreement. Upon execution and delivery by the assignee to the Company
and the Agent of an instrument in writing pursuant to which such assignee agrees
to become a "Lender" hereunder (if not already a Lender) having the
Commitment(s) and Loans specified in such instrument, and upon consent thereto
by the Company and the Agent to the extent required above, the assignee shall
have, to the extent of such assignment (unless otherwise provided in such
assignment with the consent of the Company and the Agent), the obligations,
rights and benefits of a Lender hereunder holding the Commitment(s) and Loans
(or portions thereof) assigned to it (in addition to the Commitment(s) and
Loans, if any, theretofore held by such assignee) and the assigning Lender
shall, to the extent of such assignment, be released from the Commitment(s) (or
portion(s) thereof) so assigned. In connection with any assignment pursuant to
this Section 11-06(b), the Company agrees to issue replacement Notes in the
State of New York, in the appropriate principal amounts and payable to the
appropriate Lenders, upon the request of any assigning Lender or assignee
Lender. Upon each such assignment the assigning Lender shall pay the Agent an
assignment fee of $3,500.
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(c) A Lender may sell or agree to sell a participation in all or any
part of any Loan held by it or Loans made or to be made by it. In the event of
such a participation, no such participant shall have any rights or benefits
under this Agreement or any Note (the participant's rights against such Lender
in respect of such participation to be those set forth in the agreement (the
"Participation Agreement") executed by such Lender in favor of the participant).
The granting of a participation by a Lender hereunder shall not in any way
release such Lender from any of its obligations under this Agreement. All
amounts payable by the Company to any Lender under Section 5 hereof shall be
determined as if such Lender had not sold or agreed to sell any participations
in such Loan and as if such Lender were funding all of such Loan in the same way
that it is funding the portion of such Loan in which no participations have been
sold. In no event shall a Lender that sells a participation be obligated to the
participant under the Participation Agreement to take or refrain from taking any
action hereunder or under such Lender's Notes except that such Lender may agree
in the Participation Agreement that it will not, without the consent of the
participant, agree to (i) the extension of any date fixed for the payment of
principal of or interest on the related Loan or Loans or any portion of any fees
payable to the participant, (ii) the reduction of any payment of principal
thereof, or (iii) the reduction of the rate at which either interest is payable
thereon or (if the participant is entitled to any part thereof) facility fee is
payable hereunder to a level below the rate at which the participant is entitled
to receive interest or facility fee (as the case may be) in respect of such
participation.
(d) Anything in this Section 11.06 to the contrary notwithstanding,
any Lender may assign and pledge all or any portion of its Loans and its Notes
to any Federal Reserve Bank 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. No such assignment shall release the
assigning Lender from its obligations hereunder.
(e) A Lender may furnish any information concerning the Company, the
Parent or any of their respective Subsidiaries in the possession of such Lender
from time to time to assignees and participants and, with notice to the Company,
to prospective participants and, with the consent of the Company, to prospective
assignees.
(f) If:
(i) any Lender makes a demand for payment under Section 5.01 hereof,
(ii) Loans of any Lender are Converted into Base Rate Loans pursuant
to Section 5.04 hereof, or
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(iii) any Lender does not become a Consenting Lender (as that term is
used in the definition of "Commitment Termination Date" in Section 1.01
hereof), does not become a "Consenting Lender" under (and as defined in)
the Other FPC Agreement or either of the PCH Agreements, in each case
within the required periods set forth in the relevant definitions thereof;
then, in the case of clause (i) above, within 60 days after the Company makes
the payment demanded; in the case of clause (ii) above, within 60 days after the
last of the relevant Conversions; and, in the case of clause (iii) above, at any
time thereafter, the Company may, so long as no Default shall be continuing and
subject to the consent of the Agent (which consent shall not be unreasonably
withheld), demand that such Lender assign, pursuant to this Section 11.06 and
documentation reasonably acceptable to such Lender, all (but not less than all)
of such Lender's Commitment and outstanding Loans hereunder to one or more banks
or financial institutions designated by the Company, for a purchase price not
less than the principal amount of such outstanding Loans, accrued interest
thereon and all other amounts payable by the Company to such Lender hereunder
(including amounts payable under Section 5.05 hereof) and under the Notes held
by such Lender, such assignment to take place no later than 30 days after the
Company's demand.
11.07 Survival. The obligations of the Company under Sections 5.01,
5.05 and 11-03 hereof shall survive the repayment of the Loans and the
termination of the Commitments.
11.08 Captions. The table of contents and captions and section
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
11.09 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
11.10 Governing Law; Submission to Jurisdiction. This Agreement and
the Notes shall be governed by, and construed in accordance with, the law of the
State of New York. The Company hereby submits to the nonexclusive jurisdiction
of the United States District Court for the Southern District of New York and of
any New York state court sitting in New York City for the purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. The Company irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
forum.
11.11 Waiver of Jury Trial. EACH OF THE COMPANY, THE AGENT AND THE
LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
44
[This space intentionally left blank.]
45
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
FLORIDA POWER CORPORATION
By:___________________________________
Print Name: Pamela A. Saari
Print Title: Treasurer
Address for Notices:
Post Office Box 14042
St. Petersburg, Florida 33733
Telecopier No.: 727-820-5918
Telephone No.: 727-820-5875
Attention: Mr. Kenneth E. McDonald
Sworn to and subscribed before me on this 13th day of November, 1998,
in the State of New York, County of New York.
---------------------------
Notary Public
46
Commitment
$33,750,000
THE CHASE MANHATTAN BANK
By ___________________________________
Print Name:
Print Title:
Lending Office for all Loans
(other than Eurodollar Loans):
The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017-2070
Lending Office for Eurodollar Loans:
The Chase Manhattan Bank
Cayman Islands,
British West Indies Branch
c/o The Chase Manhattan Bank
One Chase Manhattan Plaza
New York, New York 10081
Address for Notices:
The Chase Manhattan Bank
Global Power & Environmental Group
270 Park Avenue
New York, New York 10017-2070
Telecopier No.: 212/270-3089
Telephone No.: 212/270-7653
Attention: Mr. Paul V. Farrell
47
Commitment
$25,000,000
NATIONSBANK, N.A.
By ___________________________________
Print Name:
Print Title:
Lending Office for all Loans:
NationsBank, N.A.
101 North Tryon Street
Charlotte, NC 28255
Attn: Marcella Graham
Credit Services
Address for Notices:
NationsBank, N.A.
Corporate Center
NC1-007-08-08
100 North Tryon Street
Charlotte, NC 28255
Telecopier No.: 704/386-1270
Telephone No.: 704/386-8394
Attention: Ms. Gretchen P. Burud
48
Commitment
$25,000,000
FIRST UNION NATIONAL BANK
By ___________________________________
Print Name:
Print Title:
Lending Office for all Loans
First Union National Bank
One First Union Center
301 South College Street
Charlotte, North Carolina 28288-0735
Address for Notices:
First Union National Bank
One First Union Center
301 South College Street
Charlotte, North Carolina 28288-0735
Telecopier No.: 704/383-6670
Telephone No.: 704/383-8225
Attention: Mr. Michael J. Kolosowsky
49
Commitment
$23,750,000
SUNTRUST BANK, TAMPA BAY
By ___________________________________
Print Name:
Print Title:
Lending Office for all Loans:
SunTrust Bank, Tampa Bay
300 1st Avenue South
St. Petersburg, Florida 33701
Address for Notices:
SunTrust Bank, Tampa Bay
300 1st Avenue South
St. Petersburg, Florida 33701
Telecopier No.: 813/892-4810
Telephone No.: 813/892-4958
Attention: Ms. Brigitta A. Lawton
50
Commitment
$23,750,000
THE FIRST NATIONAL BANK OF CHICAGO
By ___________________________________
Print Name:
Print Title:
Lending Office for all Loans:
The First National Bank of Chicago
One First National Plaza
Suite 0363
Chicago, Illinois 60670-0363
Address for Notices:
The First National Bank of Chicago
One First National Plaza
Suite 0363
Chicago, Illinois 60670-0363
Telecopier No.: 312/732-3055
Telephone No.: 312/732-9781
Attention: Mr. William N. Banks
51
Commitment
$18,750,000
REVOLVING COMMITMENT
VEHICLE CORPORATION
By ___________________________________
Print Name:
Print Title:
Lending Office for all Loans:
Revolving Commitment Vehicle
Corporation
500 Stanton Christiana Road
Newark, Delaware 19713
Address for Notices:
Morgan Guaranty Trust Company
of New York
60 Wall Street
New York, New York 10260-0060
Telecopier No.: 212/648-5014
Telephone No.: 212/648-9036
Attention: Ms. Kathryn Sayko-Yanes
52
Commitment
$18,750,000
PNC BANK, NATIONAL ASSOCIATION
By ___________________________________
Print Name:
Print Title:
Lending Office for all Loans:
PNC Bank, National Association
One PNC Plaza
3rd Floor
249 - 5th Avenue
Pittsburgh, PA 15222-2707
Address for Notices:
PNC Bank, National Association
One PNC Plaza
3rd Floor
249 - 5th Avenue
Pittsburgh, PA 15222-2707
Telecopier No.: 412/762-2571
Telephone No.: 412/762-2540
Attention: Mr. Christopher N. Moravec
53
Commitment
$18,750,000
WACHOVIA BANK, N.A.
By ___________________________________
Print Name:
Print Title:
Lending Office for all Loans:
Wachovia Bank, N.A.
191 Peachtree Street, N.E.
Atlanta, GA 30303-1757
Address for Notices:
Wachovia Bank, N.A.
191 Peachtree Street, N.E.
Atlanta, GA 30303-1757
Telecopier No.: 404/332-5016
Telephone No.: 404/332-5134
Attention: Ms. Tammy F. Hughes
54
Commitment
$12,500,000
THE NORTHERN TRUST COMPANY
By ___________________________________
Print Name:
Print Title:
Lending Office for all Loans:
The Northern Trust Company
50 South LaSalle Street
Chicago, Illinois 60675
Address for Notices:
The Northern Trust Company
50 South LaSalle Street
Chicago, Illinois 60675
Telecopier No.: 312/630-6062
Telephone No.: 312/444-3455
Attention: Ms. Christina L. Jakuc
55
THE CHASE MANHATTAN BANK
as Agent
By ___________________________________
Print Name:
Print Title:
Address for Notices to Chase as Agent:
The Chase Manhattan Bank
1 Chase Manhattan Plaza - 8th Floor
New York, New York 10081
Telecopier No.: 212/552-7490
Telephone No.: 212/552-7943
Attention: Mr. Muniram Appanna
56
EXHIBIT A-1
[Form of Note for Syndicated Loans]
PROMISSORY NOTE
$_________________ ___________, 199__
New York, New York
FOR VALUE RECEIVED, FLORIDA POWER CORPORATION, a Florida corporation (the
"Company"), hereby promises to pay to (the "Lender"), for account of its
respective Applicable Lending Offices provided for by the Credit Agreement
referred to below, at the principal office of The Chase Manhattan Bank at 270
Park Avenue, New York, New York 10017, the principal sum of _________________
Dollars (or such lesser amount as shall equal the aggregate unpaid principal
amount of the Syndicated Loans made by the Lender to the Company under the
Credit Agreement), in lawful money of the United States of America and in
immediately available funds, on the dates and in the principal amounts provided
in the Credit Agreement, and to pay interest on the unpaid principal amount of
each such Syndicated Loan, at such office, in like money and funds, for the
period commencing on the date of such Syndicated Loan until such Syndicated Loan
shall be paid in full, at the rates per annum and on the dates provided in the
Credit Agreement.
The date, amount, Type, interest rate and duration of Interest Period (if
applicable) of each Syndicated Loan made by the Lender to the Company, and each
payment made on account of the principal thereof, shall be recorded by the
Lender on its books and, prior to any transfer of this Note, endorsed by the
Lender on the schedule attached hereto or any continuation thereof, provided
that any failure by the Lender to make any such endorsement shall not affect the
obligations of the Company hereunder.
This Note is one of the Notes referred to in the Third Amended and Restated
Credit Agreement B (as modified and supplemented and in effect from time to
time, the "Credit Agreement") dated as of November 17, 1998, between the
Company, the lenders named therein and The Chase Manhattan Bank, as Agent, and
evidences the Company's obligation to repay the Syndicated Loans made by the
Lender thereunder and interest thereon. Capitalized terms used in this Note have
the respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of this
Note upon the occurrence of certain events and for prepayments of Loans upon the
terms and conditions specified therein.
Except as permitted by Section 11.06(b) of the Credit Agreement, this Note
may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance with, the law
of the State of New York.
FLORIDA POWER CORPORATION
By:___________________________________
Title:
A1-2
SCHEDULE OF LOANS
This Note Schedule describes Loans made, Continued or Converted under the
within-described Credit Agreement to the Company, on the dates, in the principal
amounts, of the Types, bearing interest at the rates and maturing on the dates
set forth below, subject to the payments and prepayments of principal set forth
below:
Date
Made
Cont- Principal Duration Date and
inued Amount Type of Amount Unpaid
or Con- of of Interest Interest Paid or Principal Notation
verted Loan Loan Rate Period Prepaid Amount Made by
- ------ ------ ---- ---- ------- ------- --------- --------
A1-3
EXHIBIT A-2
[Form of Note for Money Market Loans]
PROMISSORY NOTE
___________, 199__
New York, New York
FOR VALUE RECEIVED, FLORIDA POWER CORPORATION, a Florida corporation (the
"Company"), hereby promises to pay to ____________________ (the "Lender"), for
account of its respective Applicable Lending Offices provided for by the Credit
Agreement referred to below, at the principal office of The Chase Manhattan Bank
at 270 Park Avenue, New York, New York 10017, the aggregate unpaid principal
amount of the Money Market Loans made by the Lender to the Company under the
Credit Agreement, in lawful money of the United States of America and in
immediately available funds, on the dates and in the principal amounts provided
in the Credit Agreement, and to pay interest on the unpaid principal amount of
each such Money Market Loan, at such office, in like money and funds, for the
period commencing on the date of such Money Market Loan until such Money Market
Loan shall be paid in full, at the rates per annum and on the dates provided in
the Credit Agreement.
The date, amount, Type, interest rate and maturity date of each Money
Market Loan made by the Lender to the Company, and each payment made on account
of the principal thereof, shall be recorded by the Lender on its books and,
prior to any transfer of this Note, endorsed by the Lender on the schedule
attached hereto or any continuation thereof, provided that any failure by the
Lender to make any such endorsement shall not affect the obligations of the
Company hereunder.
This Note is one of the Notes referred to in the Third Amended and Restated
Credit Agreement B (as modified and supplemented and in effect from time to
time, the "Credit Agreement") dated as of November 17, 1998, between the
Company, the lenders named therein (including the Lender) and The Chase
Manhattan Bank, as Agent, and evidences the Company's obligation-to repay the
Money Market Loans made by the Lender thereunder and interest thereon.
Capitalized terms used in this Note have the respective meanings assigned to
them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of this
Note upon the occurrence of certain events and for prepayments of Loans upon the
terms and conditions specified therein.
Except as permitted by Section 11.06(b) of the Credit Agreement, this Note
may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance with, the law
of the State of New York.
FLORIDA POWER CORPORATION
By:___________________________________
Title:
A2-2
SCHEDULE OF LOANS
This Note Schedule describes Loans made under the within-described Credit
Agreement to the Company, on the dates, in the principal amounts, of the Types,
bearing interest at the rates and maturing on the dates set forth below, subject
to the payments and prepayments of principal set forth below:
Principal Date and
Date Amount Type Maturity Amount Unpaid
of of of Interest Date of Paid or Principal Notation
Loan Loan Loan Rate Loan Prepaid Amount Made by
- ---- --------- ---- -------- -------- -------- --------- --------
A2-3
EXHIBIT B
[Form of Opinion of Counsel to the Parent]
_________________, 199__
To: the Lenders party to the
Credit Agreement referred to
below and The Chase Manhattan
Bank, as Agent
Ladies and Gentlemen:
I am Vice President and General Counsel of Florida Power Corporation (the
"Company"), a wholly owned subsidiary of Florida Progress Corporation (the
"Parent"), and am rendering this opinion in connection with Credit Agreement B
dated as of November 26, 1991 (the "Original Agreement"), between the Company,
the lenders named therein and The Chase Manhattan Bank, as Agent, as amended and
restated by the Third Amended and Restated Credit Agreement B dated as of
November 17, 1998 (the Original Agreement, as amended and restated, being
hereinafter referred to as the "Credit Agreement") providing for loans to be
made by said lenders to the Company in an aggregate principal amount not
exceeding $200,000,000. I have represented the Company in connection with the
negotiation of the Credit Agreement. Terms defined in the Credit Agreement are
used herein as defined therein.
In rendering the opinion expressed below, I have examined the originals or
conformed copies of such corporate records, agreements and instruments of the
Company and the Parent, certificates of public officials and of officers of the
Company and the Parent, and such other documents and records, and such matters
of law, as I have deemed appropriate as a basis for the opinions hereinafter
expressed.
Based upon the foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Florida and has the
necessary corporate power to make and perform the Credit Agreement and the
Notes (collectively, the "Credit Documents") and to borrow under the Credit
Agreement.
2. The making and performance by the Company of the Credit Agreement
and the borrowings thereunder-have been duly authorized by all necessary
corporate action, and do not and will not violate any provision of law or
regulation or any provision of its articles or by-laws or result in the
breach of, or constitute a default or require any consent under, or result
in the creation of any Lien upon any of its properties, revenues or assets
pursuant to, any indenture or other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries or their respective properties may be bound.
3. The Credit Agreement has been duly executed and delivered by the
Company and constitutes, and the Notes when executed and delivered for
value will constitute, legal, valid and binding obligations of the Company,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general applicability
affecting the enforcement of creditors' rights and (b) the application of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and except that no opinion
is expressed as to (i) Section 4.07(c) of the Credit Agreement or (ii) the
effect of the law of any jurisdiction (other than the State of Florida)
wherein any Lender (including any of its Applicable Lending offices) may be
located which limits rates of interest which may be charged or collected by
such Lender. I express no opinion as to (i) whether a Federal or state
court outside of the State of New York would give effect to the choice of
New York law provided for in the Credit Agreement and the Notes, (ii) the
second sentence of Section 11.10 of the Credit Agreement, insofar as such
sentence relates to the subject matter jurisdiction of the United States
District Court for the Southern District of New York to adjudicate any
controversy related to the Credit Agreement or the Notes, (iii) the waiver
of inconvenient forum set forth in Section 11.10 of the Credit Agreement
with respect to proceedings in the United States District Court for the
Southern District of New York, or (iv) Section 11.11 of the Credit
Agreement.
4. In connection with the above, I wish to point out that provisions
of the Credit Agreement that permit the Agent or any Lender to take action
or make determinations, or to benefit from indemnities and similar
undertakings of the Company, may be subject to a requirement that such
action or inaction by the Agent or a Lender which may give rise to a
request for payment under such an undertaking be taken or not taken, on a
reasonable basis and in good faith.
5. Except for the matters disclosed (i) under the heading "Legal
Proceedings" in Part I, Item 3 of the Company's Annual Report on Form 10-K
for the year ended December 31, 1997, and (ii) under the heading "Legal
Proceedings" in Part II, Item 1 of the Company's Quarterly Reports on Form
10-Q for the quarters ended March 31, June 30, and September 30, 1998,
there are no legal or arbitral proceedings, and no proceedings by or before
any governmental or regulatory authority or agency, pending or (to my
knowledge) threatened against or affecting the Company or any of the
Company's Subsidiaries, or any properties or rights of the Company or any
of the Company's Subsidiaries, which, if adversely determined, would have a
material adverse effect on the consolidated financial condition, operations
or business taken as a whole of the Company and its Consolidated
Subsidiaries.
6. Other than the approval of the Florida Public Service Commission
(which approval has been duly obtained and is in full force and effect), no
authorizations, consents, approvals, licenses, filings or registrations
with, any governmental or regulatory authority or agency are required in
connection with the execution, delivery or performance by the Company of
the Credit Documents.
B-2
7. The Parent is a "holding company" within the meaning of Section
2(a)(7) of the 1935 Act and the Parent and the Company are exempt from all
of the requirements of the 1935 Act other than Section 9(a)(2) thereof by
virtue of the filing of an exemption statement on Form U-3A-2 under Rule 2
under Section 3(a)(1) of the 1935 Act. Such Form U-3A-2 exemption statement
was completed in compliance with all applicable rules and regulations of
the Securities and Exchange Commission under the 1935 Act and was filed on
June 23, 1998.
I wish to point out that the exemption provided by such filing may be
terminated by the Securities and Exchange Commission pursuant to Rule 6
under the 1935 Act thirty days after notification by the Securities and
Exchange Commission by registered mail to the Parent that a substantial
question of law or fact exists as to whether or not the Parent is within
the exemption afforded by Rule 2 under Section 3(a)(1) of the 1935 Act or
any question exists as to whether or not the exemption of the Parent
afforded by Rule 2 under the 1935 Act may be detrimental to the public
interest or the interest of investors or consumers. Such termination would
be without prejudice to the right of the Parent to file an application for
an order granting an exemption pursuant to any applicable section of the
1935 Act and without prejudice to any temporary exemption provided for by
the 1935 Act if such application is filed in good faith. As of the date
hereof, no such notification has been received by the Parent, and (except
for proceedings that may arise should the Securities and Exchange
Commission adopt proposed Rule 17 under the 1935 Act) I am not aware of any
facts or circumstances that would currently provide a basis for the
Securities and Exchange Commission to initiate proceedings to revoke the
exemption claimed by the Parent under Rule 2 under Section 3(a)(1) of the
1935 Act.
8. None of the Lenders nor the Agent will solely as a result of the
participation by them and the Parent and the Company in the transactions
contemplated by the Credit Agreement and the Notes be subject to regulation
by any governmental authority as an "electric utility company", a "public
utility company," a "holding company" or a "subsidiary company" or
"affiliate" of any of the foregoing under the 1935 Act.
I am a member of the bar of the State of Florida and I do not herein
intend to express any opinion as to any matters governed by any laws other
than the law of the State of Florida and the Federal law of the United
States of America.
Very truly yours,
B-3
EXHIBIT C
[Form of Money Market Quote Request]
[Date]
To: The Chase Manhattan Bank, as Agent
From: Florida Power Corporation, Inc.
Re: Money Market Quote Request
Pursuant to Section 2.03 of the Third Amended and Restated Credit Agreement B
(the "Credit Agreement") dated as of November 17, 1998, as amended or restated
from time to time, between Florida Power Corporation, the lenders named therein
and The Chase Manhattan Bank, as Agent, we hereby give notice that we request
Money Market Quotes for the following proposed Money Market Borrowing(s):
Borrowing Quotation Interest
Date Date[*l] Amount[*2] Type [*3] Period[*4]
- --------- -------- ---------- --------- ----------
Terms used herein have the meanings assigned to them in the Credit
Agreement.
FLORIDA POWER CORPORATION
By:___________________________________
Title:
- ---------------------------
* All numbered footnotes appear on the last page of this Exhibit.
- ----------------------
[1] For use if a Money Market Rate in a Set Rate Auction is requested to be
submitted before the Borrowing Date.
[2] Each amount must be $10,000,000 or a larger multiple of $1,000,000.
[3] Insert either "Margin" (in the case of LIBOR Market Loans) or "Rate" (in
the case of Set Rate Loans).
[4] One, two, three or six months, in the case of a LIBOR Market Loan or, in
the case of a Set Rate Loan, a period of up to 180 days after the making of
such Set Rate Loan and ending on a Business Day.
C-2
EXHIBIT D
[Form of Money Market Quote]
To: The chase Manhattan Bank, as Agent
Attention:
Re: Money Market Quote to
Florida Power Corporation (the "Borrower")
This Money Market Quote is given in accordance with Section 2.03(c) of
the Third Amended and Restated Credit Agreement B (the "Credit Agreement") dated
as of November 17, 1998, as amended or restated from time to time, between
Florida Power Corporation, the lenders named therein and The Chase Manhattan
Bank, as Agent. Terms defined in the Credit Agreement are used herein as defined
therein.
In response to the Borrower's invitation dated ___________, 19__, we
hereby make the following Money Market Quote(s) on the following terms:
1. Quoting Lender:
2. Person to contact at Quoting Lender:
3. We hereby offer to make Money Market Loan(s) in the following
principal amount(s], for the following Interest Period(s) and at the
following rate(s):
Borrowing Quotation Interest
Date Date[*1] Amount[*2] Type[*3] Period[*4] Rate[*5]
- --------- -------- ---------- -------- ---------- --------
4. The maximum aggregate principal amount of all Money Market Loans:
- -----------------------
* All numbered footnotes appear on the last page of this Exhibit.
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit
Agreement, irrevocably obligates us to make the Money Market Loan(s) for
which any offer(s) (is/are) accepted, in whole or in part (subject to the
third sentence of Section 2.03(e) of the Credit Agreement).
Very truly yours,
[Name of Lender]
By:___________________________________
Authorized officer
Dated: ______________, ____
[1] As specified in the related Money Market Quote Request.
[2] The principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for at least $5,000,000 or a
larger multiple of $1,000,000.00.
[3] Indicate "Margin" (in the case of LIBOR Market Loans) or "Rate" (in the
case of Set Rate Loans).
[4] One, two, three or six months, in the case of a LIBOR Market Loan or, in
the case of a Set Rate Loan, a period of up to 180 days after the making of
such Set Rate Loan and ending on a Business Day, as specified in the
related Money Market Quote Request.
[5] For a LIBOR Market Loan, specify margin over or under the London interbank
offered rate determined for the applicable Interest Period. Specify
percentage (rounded to the nearest 1/10,000th of 1%) and specify whether
"PLUS" or "MINUS". For a Set Rate Loan, specify rate of interest per annum
(rounded to the nearest 1/10,000th of 1%).
D-2