Exhibit 10.(a)(1)
EXECUTION COPY
AMENDMENT AND RESTATEMENT
AMENDMENT AND RESTATEMENT, dated as of March 30, 2004 (this "Amendment and
Restatement"), to that certain 364-DAY REVOLVING CREDIT AGREEMENT, dated as of
April 1, 2003, (the "Existing Agreement"; and as amended by this Amendment and
Restatement, the "Amended and Restated Agreement"), among Florida Power
Corporation (d/b/a/ Progress Energy Florida, Inc., the "Company"), the Banks and
Lenders from time to time party thereto (the "Lenders") and JPMorgan Chase Bank,
as Administrative Agent (the "Administrative Agent").
PRELIMINARY STATEMENT
The Company, the Lenders and the Administrative Agent previously entered
into the Existing Agreement. The parties hereto now wish to amend the Existing
Agreement in its entirety to read as set forth in the Existing Agreement with
the amendments set forth below. The parties therefore agree as follows
(capitalized terms used but not defined herein having the meanings assigned to
such terms in the Existing Agreement):
SECTION 1. Amendment to Existing Agreement. Effective as of the Termination
Date (as defined in the Existing Agreement without giving effect to this
Amendment and Restatement, the "Current Termination Date")) and subject to the
satisfaction of the conditions precedent set forth in Section 2 hereof, the
Existing Agreement is hereby amended as follows:
(a) Section 1.01 is amended by deleting the definition of "Revolving
Period" in its entirety and substituting the following definition in lieu
thereof:
"Revolving Period" means the period beginning on the date hereof
and ending on March 29,2005 or, as to any Lender other than any
Declining Lender, such later date as to which the Lenders may from
time to time agree pursuant to Section 2.16.
(b) The following definitions in Section 1.01 are amended as follows:
(i) The definition of "Applicable Margin" is amended by replacing
the table therein with the following table:
- ------------------------------------------------------------------------------------------------------------------------------
LEVEL 1 LEVEL 2 LEVEL 3 LEVEL 4 LEVEL 5 LEVEL 6
Basis for
Pricing If the If the Reference If the Reference If the Reference If the Reference If the
Reference Securities are Securities are Securities are Securities are Reference
Securities are rated lower than rated lower than rated lower than rated lower than Securities are
rated at least Level 1 but at Level 2 but at Level 3 but at Level 4 but at rated lower
A+ by S&P or least A by S&P or least A- by S&P or least BBB+ by S&P least BBB by S&P than Level 5
at least A1 by at least A2 by A3 by Moody's or Baa1 by Moody's or Baa2 by Moody's or unrated
Moody's Moody's
- ------------------------------------------------------------------------------------------------------------------------------
Eurodollar 0.310% 0.400% 0.500% 0.600% 0.700% 1.250%
Rate
- ------------------------------------------------------------------------------------------------------------------------------
Base Rate 0.0% 0.0% 0.0% 0.0% 0.0% 0.250%
- ------------------------------------------------------------------------------------------------------------------------------
2
(ii) The definition of "Domestic Lending Office" is amended by
replacing the phrase "Schedule II" contained therein with the phrase
"Schedule I".
(iii) The definition of "Eurodollar Lending Office" is amended by
replacing the phrase "Schedule II" contained therein with the phrase
"Schedule I".
(c) Section 1.01 is amended by deleting the definitions of "Existing
CP&L Facility" and "Existing Facilities" in their respective entireties.
(d) Section 2.01 is amended by replacing the phrase "Schedule II"
contained therein with the phrase "Schedule I".
(e) Section 2.03 is amended by replacing the table therein in its
entirety with the following table:
- ------------------------------------------------------------------------------------------------------------------
LEVEL 1 LEVEL 2 LEVEL 3 LEVEL 4 LEVEL 5 LEVEL 6
Basis for
Pricing If the If the If the If the If the If the
Reference Reference Reference Reference Reference Reference
Securities are Securities are Securities are Securities are Securities are Securities are
rated at least rated lower rated lower rated lower rated lower rated lower
A+ by S&P or at than Level 1 than Level 2 than Level 3 than Level 4 than Level 5
least A1 by but at least A but at least A- but at least but at least or unrated
Moody's by S&P or at by S&P or at BBB+ by S&P or BBB by S&P or
least A2 by least A3 by at least Baa1 at least Baa2
Moody's Moody's by Moody's by Moody's
- ------------------------------------------------------------------------------------------------------------------
Facility Fee 0.090% 0.100% 0.125% 0.150% 0.175% 0.250%
- ------------------------------------------------------------------------------------------------------------------
(f) The text of Section 3.01(g) is deleted and replaced in its
entirety with the word "Reserved.".
(g) Section 4.01(e) is amended by replacing both instances of
"December 31, 2002" contained therein with "December 31, 2003".
(h) Section 8.02 is amended by replacing the phrase "Schedule II"
therein with the phrase "Schedule I".
(i) The text of Section 8.08 is deleted and replaced in its entirety
with the word "Reserved."
(j) Schedule I is deleted in its entirety and replaced with Schedule I
hereto.
(k) Schedule II is deleted in its entirety.
3
(l) References in Exhibits A-1, A-2, B, C-1, C-2, C-3, C-4, D, E and F
to "April 1, 2003" shall be replaced by references to "March 30, 2004".
SECTION 2. Adjustments to the Commitments. Each Lender that consents to
this Amendment and Restatement by duly completing, executing and delivering to
the Administrative Agent a signature page to this Amendment and Restatement
(each such Lender being an "Extending Lender") shall also indicate on its
signature page hereto whether and by what amount such Lender would be willing,
in such Lender's sole discretion, to increase its Commitment on and after the
Current Termination Date in the event that any Lender does not consent to this
Amendment and Restatement (any such Lender being a "Declining Lender"). The
Administrative Agent may determine, in its sole discretion, the amount by which
the Commitment of each Extending Lender that has agreed to increase its
Commitment (each such Lender being an "Increasing Commitment Lender") shall be
increased; provided that (i) no Increasing Commitment Lender's Commitment may be
increased by an amount in excess of the amount of the increase offered by such
Increasing Commitment Lender, as set forth on such Increasing Commitment
Lender's signature page to this Amendment and Restatement, and (ii) the
aggregate amount of the Commitments after giving effect to all such increases
shall not exceed the aggregate amount of the Commitments immediately prior to
the Current Termination Date. The Administrative Agent shall notify the Lenders
and the Company, no later than three Business Days prior to the Current
Termination Date, of the Commitments of the Extending Lenders that will be in
effect on and after the Current Termination Date, after giving effect to any
increases in such Commitments pursuant to the procedures set forth in this
Section 2. From and after the Current Termination Date, and subject to the
satisfaction of the condition precedent set forth in clause (b) of Section 3
below, the Commitment of each Declining Lender shall be zero.
SECTION 3. Conditions of Effectiveness of Amendment. This Amendment shall
become effective as of the date first written above when, and only when, on or
prior to the Current Termination Date, the Administrative Agent shall have
received:
(a) counterparts of this Amendment and Restatement executed by the
Company and Lenders that consent to this Amendment and Restatement
representing at least 85% of the Commitments (after giving effect to any
adjustments to the Commitments under Section 2);
(b) opinions of counsel to the Company substantially in the forms of
Exhibit A-1 and Exhibit A-2 and as to such other matters as any Lender
through the Administrative Agent may reasonably request;
(c) promissory notes, if requested by any Lender pursuant to Section
2.06;
(d) certified copies of the resolutions of the Board of Directors of
the Company approving this Amendment and Restatement, and of all documents
evidencing other necessary corporate action and governmental approvals,
including the FPSC Order, with respect to this Amendment and Restatement;
(e) a certificate of the Secretary or an Assistant Secretary of the
Company, dated as of the date hereof, certifying the names and true
signatures of the officers of the Company authorized to sign this Amendment
and Restatement and the other documents to be delivered hereunder;
4
(f) a certificate of a Responsible Officer of the Company, dated as of
the date hereof, certifying (i) the accuracy of the representations and
warranties contained herein and (ii) that no event has occurred and is
continuing which constitutes an Event of Default or which would constitute
an Event of Default but for the requirement that notice be given or time
elapse, or both;
(g) certified copies of all required governmental approvals and
authorizations;
(h) certified copy of the restated charter and bylaws of the Company;
(i) a favorable opinion of King & Spalding LLP, counsel for the
Administrative Agent, substantially in the form of Exhibit D hereto; and
(j) either (i) the Commitment of, and all outstanding Loans made by,
any Declining Lender shall have been assigned to one or more Increasing
Commitment Lenders in accordance with the provisions of Section 8.07 of the
Existing Agreement pursuant to an Assignment and Acceptance in
substantially the form of Exhibit B to the Existing Agreement or (ii) such
Commitment shall have been terminated and all such Loans shall have been
repaid in full.
SECTION 4. Representations and Warranties of the Company. The Company
represents and warrants that (a) the representations and warranties contained in
Section 4.01 (including without limitation those regarding any required
approvals of or notices to governmental bodies) of the Amended and Restated
Agreement are true and correct on and as of the date first above written as
though made on and as of such date, and (b) no event has occurred and is
continuing, or would result from the execution and delivery of this Amendment
and Restatement, that constitutes an Event of Default or would constitute an
Event of Default but for the requirement that notice be given or time elapse, or
both.
SECTION 5. Reference to and Effect on the Existing Agreement. Upon the
effectiveness of this Amendment, on and after the date hereof each reference in
the Existing Agreement to "this Agreement", "hereunder", "hereof" and each
reference in any Note to "the Credit Agreement," "thereunder" or "thereof" or,
in either case, words of like import referring to the Existing Agreement shall
mean and be a reference to the Amended and Restated Agreement, as amended
hereby. Except as specifically amended above, the Existing Agreement and the
Notes are and shall continue to be in full force and effect and are hereby in
all respects ratified and confirmed. The execution, delivery and effectiveness
of this Amendment and Restatement shall not, except as expressly provided
herein, operate as a waiver of any right, power or remedy of any Lender or the
Administrative Agent under the Existing Agreement or any Note, nor constitute a
waiver of any provision of the Existing Agreement or any Note.
SECTION 6. Costs, Expenses and Taxes. The Company agrees to pay on demand
all costs and expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment and Restatement, and the
other instruments and documents to be delivered hereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of King & Spalding
LLP, counsel for the Administrative Agent with respect thereto and with respect
to advising the Administrative Agent as to its rights and responsibilities
hereunder and thereunder, and all costs and expenses (including, without
limitation, reasonable counsel fees and expenses), if any, in connection with
the enforcement (whether through negotiations, legal proceedings or otherwise)
of this Amendment and Restatement. In addition, the Company agrees to pay any
and all stamp and other taxes payable or determined to be payable in connection
with the execution and delivery of this Amendment and Restatement, and the other
instruments and documents to be delivered hereunder, and agrees to save the
Lenders and the Administrative Agent harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omission to
pay such taxes.
5
SECTION 7. Execution in Counterparts. This Amendment and Restatement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same instrument.
SECTION 8. Governing Law. This Amendment and Restatement shall be governed
by, and construed in accordance with, the internal laws of the State of New
York.
[Signature page to follow]
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Restatement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
FLORIDA POWER CORPORATION
By_______________________________
Thomas R. Sullivan
Treasurer
JPMORGAN CHASE BANK, as Administrative Agent
By_______________________________
Name:
Title:
S-2
Lenders:
Existing Commitment The undersigned Lender hereby:
$ 25,000,000
Consents to the Amendment and
Restatement: __________________
Declines to consent to the Amendment
and Restatement: ________________
Consents to an increase in the amount
of its Commitment, pursuant to the
provisions of Section 2 of the Amendment
and Restatement, of up to: $___________
JPMORGAN CHASE BANK
By_______________________________
Name:
Title:
S-3
Existing Commitment The undersigned Lender hereby:
$ 24,000,000
Consents to the Amendment and
Restatement: __________________
Declines to consent to the Amendment
and Restatement: ________________
Consents to an increase in the amount
of its Commitment, pursuant to the
provisions of Section 2 of the Amendment
and Restatement, of up to: $___________
BANK ONE, N.A.
By_______________________________
Name:
Title:
S-4
Existing Commitment The undersigned Lender hereby:
$ 24,000,000
Consents to the Amendment and
Restatement: __________________
Declines to consent to the Amendment
and Restatement: ________________
Consents to an increase in the amount
of its Commitment, pursuant to the
provisions of Section 2 of the Amendment
and Restatement, of up to: $___________
DEUTSCHE BANK AG NEW YORK BRANCH
By_______________________________
Name:
Title:
S-5
Existing Commitment The undersigned Lender hereby:
$ 24,000,000
Consents to the Amendment and
Restatement: __________________
Declines to consent to the Amendment
and Restatement: ________________
Consents to an increase in the amount
of its Commitment, pursuant to the
provisions of Section 2 of the Amendment
and Restatement, of up to: $___________
WACHOVIA BANK, NATIONAL ASSOCIATION
By_______________________________
Name:
Title:
S-6
Existing Commitment The undersigned Lender hereby:
$ 20,000,000
Consents to the Amendment and
Restatement: __________________
Declines to consent to the Amendment
and Restatement: ________________
Consents to an increase in the amount
of its Commitment, pursuant to the
provisions of Section 2 of the Amendment
and Restatement, of up to: $___________
THE BANK OF NEW YORK
By_______________________________
Name:
Title:
S-7
Existing Commitment The undersigned Lender hereby:
$ 20,000,000
Consents to the Amendment and
Restatement: __________________
Declines to consent to the Amendment
and Restatement: ________________
Consents to an increase in the amount
of its Commitment, pursuant to the
provisions of Section 2 of the Amendment
and Restatement, of up to: $___________
BANK OF AMERICA, N.A.
By_______________________________
Name:
Title:
S-8
Existing Commitment The undersigned Lender hereby:
$ 20,000,000
Consents to the Amendment and
Restatement: __________________
Declines to consent to the Amendment
and Restatement: ________________
Consents to an increase in the amount
of its Commitment, pursuant to the
provisions of Section 2 of the Amendment
and Restatement, of up to: $___________
SUNTRUST BANK, ATLANTA
By_______________________________
Name:
Title:
S-9
Existing Commitment The undersigned Lender hereby:
$ 20,000,000
Consents to the Amendment and
Restatement: __________________
Declines to consent to the Amendment
and Restatement: ________________
Consents to an increase in the amount
of its Commitment, pursuant to the
provisions of Section 2 of the Amendment
and Restatement, of up to: $___________
THE BANK OF NOVA SCOTIA
By_______________________________
Name:
Title:
S-10
Existing Commitment The undersigned Lender hereby:
$ 11,500,000
Consents to the Amendment and
Restatement: __________________
Declines to consent to the Amendment
and Restatement: ________________
Consents to an increase in the amount
of its Commitment, pursuant to the
provisions of Section 2 of the Amendment
and Restatement, of up to: $___________
MELLON BANK, N.A.
By_______________________________
Name:
Title:
S-11
Existing Commitment The undersigned Lender hereby:
$ 11,500,000
Consents to the Amendment and
Restatement: __________________
Declines to consent to the Amendment
and Restatement: ________________
Consents to an increase in the amount
of its Commitment, pursuant to the
provisions of Section 2 of the Amendment
and Restatement, of up to: $___________
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
By_______________________________
Name:
Title:
SCHEDULE I
Domestic Eurodollar
Lender Lending Office Lending Office Commitment
JPMorgan Chase Bank $ 25,000,000
Bank One, N.A. $ 24,000,000
Deutsche Bank AG New York Branch $ 24,000,000
Wachovia Bank, National $ 24,000,000
Association
The Bank of New York $ 20,000,000
Bank of America, N.A. $ 20,000,000
SunTrust Bank $ 20,000,000
The Bank of Nova Scotia $ 20,000,000
Mellon Bank, N.A. $ 11,500,000
The Bank of Tokyo-Mitsubishi, $ 11,500,000
Ltd., New York Branch
Total: $200,000,000
EXHIBIT A-1
FORM OF OPINION OF COUNSEL FOR THE COMPANY
March 30, 2004
To each of the Lenders parties to the
Amendment and Restatement referred
to below and JPMorgan Chase Bank,
as Administrative Agent
Re: Florida Power Corporation d/b/a Progress Energy Florida, Inc.
Ladies and Gentlemen:
This opinion is furnished to you by us as counsel for Florida Power
Corporation d/b/a Progress Energy Florida, Inc. (the "Borrower") pursuant to
Section 3(b) of the Amendment and Restatement, dated as of March 30, 2004 (the
"Amendment and Restatement"; unless otherwise defined herein, the terms defined
therein being used herein as therein defined), of the 364-day Credit Agreement,
dated as of April 1, 2003 (the "Credit Agreement", and as amended by the
Amendment and Restatement, the "Amended and Restated Agreement"), among the
Borrower, certain lenders thereunder (the "Lenders") and JPMorgan Chase Bank, as
administrative agent for the Lenders.
In connection with the preparation, execution and delivery of the Amendment
and Restatement, we have examined:
(1) The Amendment and Restatement.
(2) The Credit Agreement.
(3) The Amended and Restated Agreement.
(4) The documents furnished by the Borrower pursuant to Section 3 of the
Amendment and Restatement.
(5) The Restated Charter of the Borrower (the "Charter").
(6) The Bylaws of the Borrower and all amendments thereto (the "Bylaws").
(7) The FPSC Order.
(8) The opinion letter of even date herewith, addressed to you by R.
Alexander Glenn, Associate General Counsel of Progress Energy Service Company,
LLC, in his capacity as counsel to the Company and delivered in connection with
the transactions contemplated by the Amendment and Restatement (the "Company
Opinion Letter").
We have also examined the originals, or copies of such other corporate
records of the Borrower, certificates of public officials and of officers of the
Borrower and agreements, instruments and other documents as we have deemed
necessary as a basis for the opinions expressed below. As to questions of fact
material to such opinions, we have, when relevant facts were not independently
established by us, relied upon certificates of the Borrower or its officers or
of public officials. We have assumed the authenticity of all documents submitted
to us as originals, the conformity to originals of all documents submitted as
certified or photostatic copies and the authenticity of the originals (other
than those of the Borrower), and the due execution and delivery, pursuant to due
authorization, of the Amendment and Restatement by the Lenders and the
Administrative Agent and the validity and binding effect thereof on such
parties. Whenever the phrase "to our knowledge" is used in this opinion it
refers to the actual knowledge of the attorneys of this firm involved in the
representation of the Borrower without independent investigation.
We are qualified to practice law in the States of Florida and New York, and
the opinions expressed herein are limited to the law of the States of Florida
and New York and the federal law of the United States. To the extent that our
opinions expressed herein depend upon opinions expressed in paragraphs 1 through
4 of the Company Opinion Letter, we have relied without independent
investigation on the accuracy of the opinions expressed in the Company Opinion
Letter, subject to the assumptions, qualifications and limitations set forth in
the Company Opinion Letter.
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the opinion that the Amendment and Restatement and the
Amended and Restated Agreement each constitutes the legal, valid and binding
obligation of the Borrower enforceable against the Borrower in accordance with
its terms except as enforcement may be limited or otherwise affected by (a)
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other
similar laws affecting the rights of creditors generally and (b) principles of
equity, whether considered at law or in equity.
The opinion set forth above is subject to the following qualifications:
(a) In addition to the application of equitable principles described above,
courts have imposed an obligation on contracting parties to act reasonably and
in good faith in the exercise of their contractual rights and remedies, and may
also apply public policy considerations in limiting the right of parties seeking
to obtain indemnification under circumstances where the conduct of such parties
is determined to have constituted negligence.
(b) No opinion is expressed herein as to (i) Section 8.05 of the Amended
and Restated Agreement, (ii) the enforceability of provisions purporting to
grant to a party conclusive rights of determination, (iii) the availability of
specific performance or other equitable remedies, (iv) the enforceability of
rights to indemnity under federal or state securities laws or (v) the
enforceability of waivers by parties of their respective rights and remedies
under law.
(c) No opinion is expressed herein as to provisions, if any, in the Amended
and Restated Agreement, which (A) purport to excuse, release or exculpate a
party for liability for or indemnify a party against the consequences of its own
acts, (B) purport to make void any act done in contravention thereof, (C)
purport to authorize a party to make binding determinations in its sole
discretion, (D) relate to the effects of laws which may be enacted in the
future, (E) require waivers, consents or amendments to be made only in writing,
(F) purport to waive rights of offset or to create rights of set off other than
as provided by statute, or (G) purport to permit acceleration of indebtedness
and the exercise of remedies by reason of the occurrence of an immaterial breach
of the Amended and Restated Agreement or any related document. Further, we
express no opinion as to the necessity for any Lender, by reason of such
Lender's particular circumstances, to qualify to transact business in the State
of New York or as to any Lender's liability for taxes in any jurisdiction.
The foregoing opinion is solely for your benefit and may not be relied upon
by any other Person other than (i) any other Person that may become a Lender
under the Amedned and Restated Agreement after the date hereof in accordance
with the provisions thereof and (ii) King & Spalding LLP, in connection with its
opinion delivered on the date hereof in connection with the Amendment and
Restatement.
Very truly yours,
EXHIBIT A-2
FORM OF OPINION OF ASSOCIATE GENERAL COUNSEL
OF PROGRESS ENERGY SERVICE COMPANY, LLC
March 30, 2004
To each of the Lenders parties to the
Amendment and Restatement referred
to below and JPMorgan Chase Bank, as
Administrative Agent
Re: Florida Power Corporation d/b/a Progress Energy Florida, Inc.
Ladies and Gentlemen:
This opinion is furnished to you by me as Associate General Counsel of
Progress Energy Service Company, LLC and in my capacity as counsel to Florida
Power Corporation d/b/a Progress Energy Florida, Inc. (the "Borrower") pursuant
to Section 3(b) of the Amendment and Restatement, dated as of March 30, 2004
(the "Amendment and Restatement"; unless otherwise defined herein, the terms
defined therein being used herein as therein defined), of the 364-day Credit
Agreement, dated as of April 1, 2003 (the "Credit Agreement", and as amended by
the Amendment and Restatement, the "Amended and Restated Agreement"), among the
Borrower, certain lenders thereunder (the "Lenders") and JPMorgan Chase Bank, as
administrative agent for the Lenders.
In connection with the preparation, execution and delivery of the Amendment
and Restatement, I have examined:
(1) The Amendment and Restatement.
(2) The Credit Agreement.
(3) The Amended and Restated Agreement.
(4) The documents furnished by the Borrower pursuant to Section 3 of the
Amendment and Restatement.
(5) The Restated Charter of the Borrower (the "Charter").
(6) The Bylaws of the Borrower and all amendments thereto (the "Bylaws").
(7) The FPSC Order.
I have also examined the originals, or copies of such other corporate
records of the Borrower, certificates of public officials and of officers of the
Borrower and agreements, instruments and other documents as I have deemed
necessary as a basis for the opinions expressed below. As to questions of fact
material to such opinions, I have, when relevant facts were not independently
established by me, relied upon certificates of the Borrower or its officers or
of public officials. I have assumed the authenticity of all documents submitted
to me as originals, the conformity to originals of all documents submitted as
certified or photostatic copies and the authenticity of signatures (other than
those of the Borrower), and the due execution and delivery, pursuant to due
authorization, of the Amendment and Restatement by the Lenders and the
Administrative Agent and the validity and binding effect thereof on such
parties. For purposes of my opinions expressed in paragraph 1 below as to
existence and good standing, I have relied as of their respective dates on
certificates of public officials, copies of which are attached hereto as Exhibit
A. Whenever the phrase "to my knowledge" is used in this opinion it refers to my
actual knowledge and the actual knowledge of the attorneys who work under my
supervision and who were involved in the representation of the Borrower in
connection with the transactions contemplated by the Amendment and Restatement
and the Amended and Restated Agreement.
I or attorneys working under my supervision are qualified to practice law
in the State of Florida, and the opinions expressed herein are limited to the
law of the State of Florida and the federal law of the United States.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the following opinion:
1. The Borrower is a corporation duly organized, validly existing and in
good standing under the laws of the State of Florida. The Borrower has the
corporate power and authority to enter into the transactions contemplated by the
Amendment and Restatement.
2. The execution, delivery and performance of the Amendment and Restatement
by the Borrower have been duly authorized by all necessary corporate action on
the part of the Borrower and the Amendment and Restatement has been duly
executed and delivered by the Borrower.
3. The execution, delivery and performance of the Amendment and Restatement
by the Borrower will not (i) violate the Charter or the Bylaws or any law, rule
or regulation applicable to the Borrower (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System) or (ii)
result in a breach of, or constitute a default under, any judgment, decree or
order binding on the Borrower, or any indenture, mortgage, contract or other
instrument to which it is a party or by which it is bound.
4. No authorization, approval or other action by, and no notice to or
filing with any governmental authority or regulatory body is required for the
due execution, delivery of the Amendment and Restatement or the performance by
the Company of the Amended and Restated Agreement, other than the FPSC Order,
which has been duly issued and is in full force and effect. All periods for
review and approval of the FPSC Order have expired, and no such request for
review or appeal thereof has been filed or is pending.
5. To my knowledge, except as described in the reports and registration
statements that the Borrower has filed with the Securities and Exchange
Commission, there are no pending or overtly threatened actions or proceedings
against the Borrower or any of its Subsidiaries before any court, governmental
agency or arbitrator, that purport to affect the legality, validity, binding
effect or enforceability of the Amended and Restated Agreement or that are
likely to have a material adverse effect upon the financial condition or
operations of the Borrower or any of its Subsidiaries.
The opinions set forth above are subject to the qualification that, except
as provided in paragraph 4 above, no opinion is expressed herein as to the
enforceability of the Amended and Restated Agreement or any other document.
The foregoing opinions are solely for your benefit and may not be relied
upon by any other Person other than (i) any other Person that may become a
Lender under the Amended and Restated Agreement after the date hereof and (ii)
Hunton & Williams and King & Spalding LLP, in connection with their respective
opinions delivered on the date hereof in connection with the Amendment and
Restatement.
Very truly yours,