Exhibit 10(v)
EXECUTION COPY
AMENDMENT AND RESTATEMENT
AMENDMENT AND RESTATEMENT, dated as of July 30, 2003 (this "Amendment and
Restatement"), to that certain 364-DAY REVOLVING CREDIT AGREEMENT, dated as of
July 31, 2002, (the "Existing Agreement"; and as amended by this Amendment and
Restatement, the "Amended and Restated Agreement"), among Carolina Power & Light
Company (d/b/a/ Progress Energy Carolinas, Inc., the "Company"), certain Lenders
named therein (the "Lenders") and Citibank, N.A., 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 date 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) By adding the following new definition in the appropriate
alphabetical order:
"Borrowing" means a borrowing consisting of
Advances of the same Type made on the same day by each
of the Lenders pursuant to Section 2.01 or Converted
pursuant to Section 2.09 or Section 2.10.
(b) By deleting the definition of "Revolving Period" in Section 1.01
thereof in its entirety and substituting the following therefor:
"Revolving Period" means the period beginning on
the date hereof and ending on July 28, 2004, 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.
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(c) By adding the following new paragraphs to the end of Section 8.02
thereof:
Notwithstanding the foregoing, the Company hereby
agrees that it will provide to the Administrative Agent
all information, documents and other materials that it
is obligated to furnish to the Administrative Agent
pursuant to clauses (i), (ii) and (iii) of Section
5.01(i) of this Agreement (collectively, the
"Communications"), by transmitting the Communications
in an electronic/soft medium in a format acceptable to
the Administrative Agent to
oploanswebadmin@citigroup.com within the time
requirements specified in clauses (i), (ii) and (iii)
of Section 5.01(i), as the case may be. In addition,
the Company agrees to continue to provide the
Communications to the Administrative Agent in the
manner specified in this Agreement but only to the
extent requested by the Administrative Agent.
The Company further agrees that the Administrative
Agent may make the Communications available to the
Lenders by posting the Communications on Intralinks or
a substantially similar electronic transmission systems
(the "Platform"). The Company acknowledges that the
distribution of material through an electronic medium
is not necessarily secure and that there are
confidentiality and other risks associated with such
distribution.
THE PLATFORM IS PROVIDED "AS IS" AND "AS
AVAILABLE". THE AGENT PARTIES (AS DEFINED BELOW) DO NOT
WARRANT THE ACCURACY OR COMPLETENESS OF THE
COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM AND
EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN
THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION,
ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY
RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS,
IS MADE BY THE AGENT PARTIES IN CONNECTION WITH THE
COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE
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ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR ANY OF
THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, ADVISORS OR REPRESENTATIVES (COLLECTIVELY, THE
"AGENT PARTIES") HAVE ANY LIABILITY TO THE COMPANY, ANY
LENDER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY
KIND, including, without limitation, direct or
indirect, special, incidental or consequential damages,
losses or expenses (WHETHER IN TORT, CONTRACT OR
OTHERWISE) ARISING OUT OF THE COMPANY'S OR THE
ADMINISTRATIVE AGENT'S TRANSMISSION OF COMMUNICATIONS
THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE
LIABILITY OF ANY AGENT PARTY IS FOUND IN A FINAL
NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT
JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH AGENT
PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT;
PROVIDED, HOWEVER, THE PLATFORM OR AN OWNER OR OPERATOR
OF THE PLATFORM SHALL NOT BE CONSIDERED AN AGENT PARTY.
The Administrative Agent agrees that the receipt
of the Communications by the Administrative Agent at
its e-mail address set forth above shall constitute
effective delivery of the Communications to the
Administrative Agent for purposes of this Agreement.
Each Lender agrees that notice to it (as provided in
the next sentence) specifying that the Communications
have been posted to the Platform shall constitute
effective delivery of the Communications to such Lender
for purposes of this Agreement. Each Lender agrees (i)
to notify the Administrative Agent in writing
(including by electronic communication) from time to
time of such Lender's e-mail address or addresses to
which the foregoing notice may be sent by electronic
transmission and (ii) that the foregoing notice may be
sent to such e-mail address or addresses.
Nothing herein shall prejudice the right of the
Administrative Agent or any Lender to give any notice
or other communication pursuant to this Agreement in
any other manner as specified herein.
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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:
(a) the Administrative Agent shall have received 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) the Administrative Agent shall have received opinions of counsel
to the Company substantially in the forms of Exhibit A-1 and Exhibit A-2
attached hereto upon which each Lender and the Administrative Agent may
rely, and
(c) 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.
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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 Existing 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 Section 1 hereof, 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,
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.
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.
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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.
CAROLINA POWER & LIGHT COMPANY
By_______________________________
Thomas R. Sullivan
Treasurer
CITIBANK, N.A., as Administrative Agent
By_______________________________
Name:
Title:
S-2
Lenders:
Existing Commitment The undersigned Lender hereby:
$
---------------- 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: $___________
CITIBANK, N.A.
By_______________________________
Name:
Title:
S-3
Existing Commitment The undersigned Lender hereby:
$
---------------- 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-4
Existing Commitment The undersigned Lender hereby:
$
---------------- 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-5
Existing Commitment The undersigned Lender hereby:
$
---------------- 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, NA
By_______________________________
Name:
Title:
S-6
Existing Commitment The undersigned Lender hereby:
$
---------------- 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-7
Existing Commitment The undersigned Lender hereby:
$
---------------- 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: $___________
NORDDEUTSCHE LANDESBANK
GIROZENTRALE, New York/Cayman Islands Branch
By_______________________________
Name:
Title:
By_______________________________
Name:
Title:
S-8
Existing Commitment The undersigned Lender hereby:
$
---------------- 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:
$
---------------- 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: $___________
BARCLAYS BANK PLC
By_______________________________
Name:
Title:
S-10
Existing Commitment The undersigned Lender hereby:
$
---------------- 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-11
Existing Commitment The undersigned Lender hereby:
$
---------------- 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:
EXHIBIT A-1
FORM OF OPINION OF COUNSEL FOR THE COMPANY
[Date]
To each of the Lenders parties
to the Credit Agreement referred
to below and Citibank, N.A., as
Administrative Agent
Re: Carolina Power & Light Company
Ladies and Gentlemen:
This opinion is furnished to you by us as counsel for Carolina Power &
Light Company (the "Company") in connection with the Amendment and Restatement,
dated as of July 30, 2003 (the "Amendment and Restatement"), of the 364-day
Credit Agreement, dated as of July 31, 2002 (the "Credit Agreement", and as
amended by the Amendment and Restatement, the "Amended and Restated Agreement"),
among the Company, the lenders from time to time parties thereto (the "Lenders")
and Citibank, N.A., as Administrative Agent for the Lenders (the "Administrative
Agent"). Capitalized terms used but not defined herein shall have the same
meaning assigned to such terms in the Credit Agreement.
In connection with the preparation, execution and delivery of the Amended
and Restated Agreement, we have examined or have had examined under my
supervision:
(1) The Credit Agreement.
(2) The Amendment and Restatement.
(3) The opinion letter of even date herewith, addressed to you by
Frank A. Schiller, General Counsel to the Company and delivered in
connection with the Amendment and Restatement.
We have also examined the originals, or copies of such other corporate
records of the Company, certificates of public officials and of officers of the
Company 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 Company 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
2
certified or photostatic copies and the authenticity of the originals (other
than those of the Company), and the due execution and delivery, pursuant to due
authorization, of the Amended and Restated Agreement by the Lenders and the
Administrative Agent and the validity and binding effect thereof on such
parties.
We are qualified to practice law in the States of North Carolina and New
York, and the opinions expressed herein are limited to the laws of the States of
North Carolina and New York and the federal laws 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 Amended and Restated Agreement
constitutes the legal, valid and binding obligation of the Company 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 opinions set forth above are 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 (i) purport to excuse, release or exculpate a
party for liability for or indemnify a party against the consequences of its own
acts, (ii) purport to make void any act done in contravention thereof, (iii)
purport to authorize a party to make binding determinations in its sole
discretion, (iv) relate to the effects of laws which may be enacted in the
future, (v) require waivers, consents or amendments to be made only in writing,
(vi) purport to waive rights of offset or to create rights of set off other than
as provided by statute, or (vii) 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.
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The foregoing opinion is solely for your benefit and may not be relied upon
by any other Person other than any other Person that may become a Lender under
the Amended and Restated Agreement after the date hereof.
Very truly yours,
EXHIBIT A-2
FORM OF OPINION OF GENERAL COUNSEL FOR THE COMPANY
[Date]
To each of the Lenders parties to the
Agreement referred to below and Citibank, N.A.,
as Administrative Agent
Re: Carolina Power & Light Company
Ladies and Gentlemen:
This opinion is furnished to you by me as Vice President of Progress Energy
Service Company, LLC and counsel to Carolina Power & Light Company (the
"Company") in connection with the Amendment and Restatement, dated as of July
30, 2003 (the "Amendment and Restatement"), of the 364-day Credit Agreement,
dated as of July 31, 2002 (the "Credit Agreement", and as amended by the
Amendment and Restatement, the "Amended and Restated Agreement"), among the
Company, the lenders from time to time party thereto (the "Lenders") and
Citibank, N.A., as Administrative Agent for the Lenders (the "Administrative
Agent"). Capitalized terms used but not defined herein shall have the same
meaning assigned to such terms in the Credit Agreement.
In connection with the preparation, execution and delivery of the Amended
and Restated Agreement, I have examined:
(1) The Credit Agreement.
(2) The Amendment and Restatement.
(3) The Restated Charter of the Company (the "Charter").
(5) The Bylaws of the Company and all amendments thereto (the "Bylaws").
(6) The NCUC Order and the SCPSC Order.
I have also examined the originals, or copies of such other corporate
records of the Company, certificates of public officials and of officers of the
Company and agreements, instruments and other documents as I have deemed
2
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 Company 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 the originals (other
than those of the Company), and the due execution and delivery, pursuant to due
authorization, of the Amended and Restated Agreement by the Lenders and the
Administrative Agent and the validity and binding effect thereof on such
parties. 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 Company
in connection with the transactions contemplated by the Amended and Restated
Agreement.
I am or the attorneys working under my supervision are qualified to
practice law in the State of North Carolina, and the opinions expressed herein
are limited to the law of the State of North Carolina and the federal law of the
United States and, in reliance on a certificate issued by the Secretary of State
of South Carolina, the laws of the State of South Carolina for purposes of the
first sentence of the opinion in paragraph 1 below, and for purposes of the
opinion expressed in paragraph 3, the public utility laws of the State of South
Carolina.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the following opinion:
1. The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of North Carolina, and is duly
qualified to do business and in good standing in the State of South
Carolina.
2. The execution, delivery and performance by the Company of the
Amendment and Restatement are within the Company's corporate powers, have
been duly authorized by all necessary corporate action, and do not
contravene (i) the Charter or the Bylaws or (ii) any law, rule or
regulation applicable to the Company (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System) or
(iii) any contractual or legal restriction binding or affecting the
Company. The Amendment and Restatement has been duly executed and delivered
by the Company.
3. 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 and delivery by the Company of the Amendment and
Restatement or the performance by the Company of the Amended and Restated
Agreement, other than the NCUC Order and the SCPSC Order, each of which has
been duly issued, is final and in full force and effect.
4. To my knowledge, except as described in the reports and
registration statements which the Company has filed with the Securities and
Exchange Commission, there are no pending or overtly threatened actions or
3
proceedings against the Company or any of the 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 materially adverse effect
upon the financial condition or operations of the Company or any of the
Subsidiaries.
The opinions set forth above are subject to the qualification that, except
as provided in paragraph 3 above, no opinion is expressed herein as to the
enforceability of the Amended and Restated Agreement or any other document.
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 Amended and Restated Agreement after the date hereof and (ii) Hunton &
Williams, in connection with its opinion delivered on the date hereof.
Very truly yours,