EXHIBIT 10(a)(4)
FIRST AMENDMENT TO
CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered into
and effective as of December 10, 2002 among FLORIDA POWER CORPORATION, a Florida
corporation (the "Borrower"), the Lenders party hereto and BANK OF AMERICA,
N.A., as agent for the Lenders (the "Administrative Agent"). Capitalized terms
used herein and not otherwise defined shall have the meanings ascribed thereto
in the Credit Agreement (as defined below).
RECITALS
WHEREAS, the Borrower, the Lenders party thereto and the Administrative
Agent entered into that certain Credit Agreement dated as of December 18, 2001
(the "Credit Agreement");
WHEREAS, on December 9, 2002, Merrill Lynch Bank USA ("Merrill Lynch") (i)
assigned $20,000,000 of its Commitment to The Bank of New York, (ii) assigned
$13,000,000 of its Commitment to Mellon Bank, N.A. and (iii) and Northern Trust
Bank ("Northern Trust") entered into that certain letter agreement (the "Letter
Agreement") with the Borrower and the Lenders, attached hereto as Annex A,
whereby (A) the aggregate Commitment was reduced on a non-pro-rata basis such
that each of Merrill Lynch's remaining $67,000,000 Commitment and Northern
Trust's $12,500,000 Commitment was terminated and (B) each of Merrill Lynch and
Northern Trust relinquished all of its respective rights, privileges, powers,
obligations, responsibilities and status as a Lender under the Credit Agreement;
WHEREAS, the Borrower has requested that the Lenders agree to extend the
Termination Date to April 1, 2003; and
WHEREAS, the Borrower and the Lenders have agreed to certain modifications
to the Credit Agreement subject to the terms and conditions set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
SECTION 1. Amendments.
Section 1.1. Termination Date. The definition of "Termination Date" in
Section 1.01 of the Credit Agreement is amended and restated in its entirety to
read as follows:
"Termination Date" means, with respect to a Lender, the earlier to
occur of (i) April 1, 2003 and (ii) the date of termination in whole of the
Commitments pursuant to Section 2.04 or 6.01.
Section 1.2. Commitment Schedule. Schedule I to the Credit Agreement is
deleted in its entirety and replaced with Schedule I attached hereto. The
Commitment of each respective Lender is as set forth on such Schedule I and the
aggregate Commitments of the Lenders equals $90,500,000.
Section 1.3. Lenders. In each of the instances in the Credit Agreement
where the terms "Bank" and "Banks" appear, such terms are deleted and replaced
with the terms "Lender" and "Lenders", respectively.
SECTION 2. Consent. The Lenders and the Borrower consent to the terms set
forth in the Letter Agreement, including the $79,500,000 non-pro-rata reduction
in the aggregate Commitment.
SECTION 3. Conditions Precedent. This Amendment shall not be effective
until the following conditions have been satisfied or waived by the Lenders:
(a) Receipt by the Administrative Agent of copies of this Amendment
duly executed by the Borrower and the Lenders.
(b) Receipt by the Administrative Agent of a certificate of the
corporate secretary of the Borrower certifying as to resolutions of the
Board of Directors of the Borrower approving and adopting this Amendment
and the transactions contemplated herein and authorizing the execution,
delivery and performance hereof.
(c) Receipt by the Administrative Agent of an opinion or opinions from
counsel to the Borrower relating to this Amendment and the transactions
contemplated herein, in form and substance satisfactory to the
Administrative Agent, addressed to the Administrative Agent on behalf of
the Lenders and dated as of the date hereof.
(d) The payment by the Borrower of (i) an amendment fee in an amount
equal to 0.04% of the aggregate amount of the Commitments of those Lenders
who execute and deliver this Amendment on or before 5:00 p.m. (EST) on
December 9, 2002, to be shared pro rata among such Lenders in accordance
with their respective Commitments and (ii) the reasonable out-of-pocket
expenses of the Administrative Agent in connection with the negotiation,
preparation, execution and delivery of this Amendment and the other
transactions contemplated herein, including, without limitation, reasonable
legal fees and expenses.
SECTION 4. Ratification of Credit Agreement. The terms "Agreement" and
"Credit Agreement" as used in the Credit Agreement, the promissory notes and the
related certificates, agreements and documents issued or delivered in connection
with the Credit Agreement shall hereafter mean the Credit Agreement as amended
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by this Amendment. Except as herein specifically agreed, the Credit Agreement is
hereby ratified and confirmed and shall remain in full force and effect
according to its terms.
SECTION 5. Authority/Enforceability. The Borrower represents and warrants
as follows:
(a) It has taken all necessary action to authorize the execution,
delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered by the
Borrower and constitutes the Borrower's legal, valid and binding
obligations, enforceable in accordance with its terms, except as such
enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar
laws affecting creditors' rights generally and (ii) general principles of
equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or filing,
registration or qualification with, any court or governmental authority or
third party is required in connection with the execution, delivery or
performance by the Borrower of this Amendment.
SECTION 6. No Default. The Borrower represents and warrants to the Lenders
that (a) the representations and warranties of the Borrower set forth in Article
IV of the Credit Agreement are true and correct as of the date hereof; (b) no
event has occurred and is continuing which constitutes an Event of Default or
that would constitute an Event of Default but for the requirement that notice be
given or time elapse, or both; and (c) it has no claims, counterclaims, offsets,
credits or defenses to its obligations under the Credit Agreement or to the
extent it has any they are hereby released in consideration of the Lenders
entering into this Amendment.
SECTION 7. No Conflicts. Neither the execution and delivery of this
Amendment, nor the consummation of the transactions contemplated herein, nor
performance of and compliance with the terms and provisions hereof by the
Borrower will (a) violate, contravene or conflict with any provision of its
charter, bylaws or other organizational or governing document, (b) violate,
contravene or conflict with any law, rule, regulation, order, writ, judgment,
injunction, decree or permit applicable to the Borrower, (c) violate, contravene
or conflict with any contractual provisions of, or cause an event of default
under, any material indenture, loan agreement, mortgage, deed of trust, contract
or other agreement or instrument to which the Borrower is a party or by which it
or its properties may be bound or (d) result in or require the creation of any
mortgage, pledge, hypothecation, assignment, deposit arrangement, security
interest, encumbrance, lien (statutory or otherwise), preference, priority or
charge of any kind upon or with respect to the Borrower's properties.
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SECTION 8. Counterparts/Telecopy. This Amendment may be executed in any
number of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.
Delivery of executed counterparts by telecopy shall be effective as an original
and shall constitute a representation that an original will be delivered.
SECTION 9. General Release. In consideration of the Lenders entering into
this Amendment, the Borrower hereby releases the Administrative Agent, the
Lenders and the Administrative Agent's and the Lenders' respective officers,
employees, representatives, agents, counsel and directors from any and all
actions, causes of action, claims, demands, damages and liabilities of whatever
kind or nature, in law or in equity, now known or unknown, suspected or
unsuspected to the extent that any of the foregoing arises from any action or
failure to act under the Credit Agreement or any related documents on or prior
to the date hereof.
SECTION 10. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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FLORIDA POWER CORPORATION
FIRST AMENDMENT TO CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties to this Amendment have caused this
Amendment to be duly executed as of the day and year fast above written.
FLORIDA POWER CORPORATION
By:
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Name: Thomas R. Sullivan
Title: Treasurer
FLORIDA POWER CORPORATION
FIRST AMENDMENT TO CREDIT AGREEMENT
BANK OF AMERICA, N.A., in its
capacity as Administrative Agent
and in its capacity as Lender
By:
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Name: Gretchen P. Burud
Title: Managing Director
FLORIDA POWER CORPORATION
FIRST AMENDMENT TO CREDIT AGREEMENT
BANK ONE, NA
By:
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Name:
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Title:
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FLORIDA POWER CORPORATION
FIRST AMENDMENT TO CREDIT AGREEMENT
SUNTRUST BANK
By:
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Name:
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Title:
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FLORIDA POWER CORPORATION
FIRST AMENDMENT TO CREDIT AGREEMENT
THE BANK OF NEW YORK
By:
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Name:
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Title:
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FLORIDA POWER CORPORATION
FIRST AMENDMENT TO CREDIT AGREEMENT
MELLON BANK, N.A.
By:
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Name:
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Title:
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SCHEDULE I
FLORIDA POWER CORPORATION
List of Commitments and Applicable Lending Offices
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Eurodollar Domestic
Name of Bank Credit Contact Lending Office Lending Office Commitment
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Bank of America, N.A. 100 N. Tryon Street Bank of America Plaza Same as Eurodollar Lending $21,900,000
16th Floor 901 Main Street Office
Charlotte, NC 28255 Dallas, TX 75202-3714
Attn: Gretchen Burud Attn: Taelitha Harris
Phone: 704/386-8394 Phone: 214/209-3645
Fax: 704/386-1319 Fax: 214/290-9644
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Bank One, NA 1 Bank One Plaza 1 Bank Plaza Same as Eurodollar Lending $17,800,000
MC IL1=0363 Suite 0363 Office
Chicago, IL 60670 Chicago, IL 606-0363
Attn: William Banks Attn: Robert G. Brussa
Phone: 312/732-9781
Fax: 212/732-3055
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SunTrust Bank MC- FL-Orlando-1044 MC- FL-Orlando-1044 Same as Eurodollar Lending $17,800,000
200 South Orange Avenue 200 South Orange Avenue Office
Orlando, FL 32801 Orlando, FL 32801
Attn: William Barr Attn: William Barr
Phone: 407/237-4636
Fax: 407/237-4076
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The Bank of New York One Wall Street One Wall Street Same as Eurodollar Lending $20,000,000
New York, NY 10286 New York, NY 10286 Office
Attn: Jesus Williams Attn: Lisa Williams
Phone: 212/635-7609 Phone: 212/635-7535
Fax: 212/635-7923 Fax: 212/635-7552
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Mellon Bank, N.A. One Mellon Center (Room 525 William Penn Place Same as Eurodollar Lending $13,000,000
4530) Room 153-1203 Office
Pittsburgh, PA 15258 Pittsburgh, PA
15259-0003
Attn: Scott Hennessee
Phone: 412/234-4458 Attn: Brenda Leierzapf
Fax: 412/236-1840 Phone: 412/234-8161
Fax: 412/209-6146
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Annex A
December 9, 2002
Bank of America, N.A., as Administrative
Agent, and the other Lenders party to the
Credit Agreement (defined below)
901 Main Street
Dallas, TX 7502
Florida Power Company
c/o Progress Energy, Inc.
410 S. Wilmington Street
PEB 19A3
Raleigh, NC 27601
Re: Florida Power Corporation Credit Facility
Dear Ladies and Gentlemen:
Reference is hereby made to that certain Credit Agreement, dated as of December
18, 2001 (the "Credit Agreement"), among Florida Power Corporation, as the
Borrower, Merrill Lynch Bank USA ("Merrill Lynch"), Northern Trust Bank
("Northern Trust") and the other financial institutions identified therein, as
Lenders, and Bank of America, N.A., as Administrative Agent for the Lenders.
Capitalized terms used herein without definition shall have the meanings given
to them in the Credit Agreement.
Merrill Lynch, Northern Trust, the Borrower, the Administrative Agent and the
Lenders hereby acknowledge and agree that, as of December 5, 2002, the aggregate
Commitment shall be irrevocably reduced from $170,000,000 to $90,500,000 on a
non-pro-rata basis and each of Merrill Lynch's $67,000,000 Commitment and
Northern Trust's $12,500,000 Commitment shall be terminated.
Each of Merrill Lynch and Northern Trust hereby relinquishes all of its rights,
privileges, powers, obligations, responsibilities and status as a Lender under
the Credit Agreement (except those that by the express terms of the Credit
Agreement shall survive termination of the Commitments of Merrill Lynch and
Northern Trust).
This letter shall be governed by, and construed in accordance with, the laws of
the State of New York. This letter may be executed in any number of
counterparts, each of which shall constitute an original and all of which when
taken together shall constitute one instrument.
Very truly yours,
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MERRILL LYNCH BANK USA NORTHERN TRUST BANK
By: By:
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Name: Name:
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Title: Title:
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Accepted and Agreed to as of December 9, 2002:
FLORIDA POWER CORPORATION, BANK OF AMERICA, N.A.,
as Borrower as Administrative Agent and as a
Lender
By: By:
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Name: Thomas R. Sullivan Name: Gretchen P. Burud
Title: Treasurer Title: Managing Director
SUNTRUST BANK BANK ONE, NA
By: By:
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Name: Name:
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Title: Title:
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MELLON BANK, N.A. THE BANK OF NEW YORK
By: By:
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Name: Name:
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Title: Title:
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