AMENDED AND RESTATED FIVE-YEAR CREDIT AGREEMENT dated as of June 30, 2005 among PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED, THE LENDERS IDENTIFIED HEREIN and WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent, BANK OF AMERICA,...
Exhibit
4.12
Execution
Copy
$125,000,000
AMENDED
AND RESTATED FIVE-YEAR CREDIT AGREEMENT
dated as
of
June 30,
2005
among
PUBLIC
SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED,
THE
LENDERS IDENTIFIED HEREIN
and
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
Administrative Agent,
BANK
OF AMERICA, N.A.,
as
Syndication Agent,
and
THE
BANK OF NEW YORK
and
BRANCH
BANKING AND TRUST CO. OF SOUTH CAROLINA,
as
Documentation Agents,
Arranged
by:
WACHOVIA
CAPITAL MARKETS, LLC
and
BANC
OF AMERICA SECURITIES LLC,
as
Co-Lead Arrangers and Joint-Book Managers
TABLE
OF CONTENTS
AMENDED
AND RESTATED
FIVE-YEAR
CREDIT AGREEMENT
|
SECTION |
|
PAGE | ||
|
|
|
|
| |
|
Article I DEFINITIONS |
|
1 | ||
|
|
|
|
| |
|
|
1 | |||
|
|
Accounting Terms and Determinations |
15 | ||
|
|
15 | |||
|
|
15 | |||
|
|
References |
| ||
|
|
|
|
| |
|
Article II THE CREDITS |
|
16 | ||
|
|
|
|
| |
|
|
SECTION 2.01. |
Commitment to Lend |
16 | |
|
|
SECTION 2.02. |
Method of Borrowing |
16 | |
|
|
SECTION 2.03. |
Evidence of Loans |
17 | |
|
|
SECTION 2.04. |
Maturity of Loans; Termination of Commitment |
17 | |
|
|
SECTION 2.05. |
Interest Rates |
17 | |
|
|
SECTION 2.06. |
Fees |
18 | |
|
|
SECTION 2.07. |
Optional Termination or Reduction of Commitment |
19 | |
|
|
SECTION 2.08. |
Mandatory Prepayments |
19 | |
|
|
SECTION 2.09. |
Optional Prepayments |
19 | |
|
|
SECTION 2.10. |
Compensation after Prepayment or Conversion |
19 | |
|
|
SECTION 2.11. |
General Provisions as to Payments |
19 | |
|
|
SECTION 2.12. |
Computation of Interest and Fees |
20 | |
|
|
SECTION 2.13. |
Compensation, Additional Interest |
20 | |
|
|
SECTION 2.14. |
Taxes |
21 | |
|
|
SECTION 2.15. |
Interest Rate Determination |
22 | |
|
|
SECTION 2.16. |
Conversion of Loans |
23 | |
|
|
SECTION 2.17. |
Set-off |
24 | |
|
|
SECTION 2.18. |
Pro Rata Treatment |
25 | |
|
|
SECTION 2.19. |
Sharing of Payments |
25 | |
|
|
|
|
| |
|
Article III CONDITIONS TO BORROWINGS |
26 | |||
|
|
|
|
| |
|
|
SECTION 3.01. |
Conditions to Closing |
26 | |
|
|
SECTION 3.02. |
Conditions to All Borrowings |
27 | |
|
|
|
|
| |
|
Article IV REPRESENTATIONS AND WARRANTIES |
28 | |||
|
|
|
|
| |
|
|
SECTION 4.01. |
Corporate Existence and Power |
28 | |
|
|
SECTION 4.02. |
Corporate and Governmental Authorization; Contravention |
28 | |
|
|
SECTION 4.03. |
Binding Effect |
28 | |
|
|
SECTION 4.04. |
Financial Information |
29 | |
|
|
SECTION 4.05. |
Litigation |
29 | |
|
|
SECTION 4.06. |
Compliance with ERISA |
29 | |
|
|
SECTION 4.07. |
Taxes |
30 | |
|
|
SECTION 4.08. |
Ownership of Common Stock |
31 | |
|
|
SECTION 4.09. |
Not an Investment Company; Public Utility Holding Company Subsidiary |
31 | |
|
|
SECTION 4.10. |
Ownership of Property; Liens |
31 | |
|
|
SECTION 4.11. |
No Default. |
31 | |
|
|
SECTION 4.12. |
Full Disclosure |
31 | |
|
|
SECTION 4.13. |
Environmental Matters |
32 | |
|
|
SECTION 4.14. |
Compliance with Laws. |
32 | |
|
|
SECTION 4.15. |
Margin Stock |
32 | |
|
|
SECTION 4.16. |
Purpose of Loans |
32 | |
|
|
SECTION 4.17. |
Solvency |
32 | |
|
|
SECTION 4.18. |
Insurance |
32 | |
|
|
SECTION 4.19. |
Labor Matters |
33 | |
|
|
SECTION 4.20. |
Amendments to Organizational Documents |
33 | |
|
|
|
|
| |
|
Article V COVENANTS |
33 | |||
|
|
|
|
| |
|
|
SECTION 5.01. |
Information |
33 | |
|
|
SECTION 5.02. |
Inspection of Property, Books and Records |
35 | |
|
|
SECTION 5.03. |
Loans or Advances |
35 | |
|
|
SECTION 5.04. |
Investments |
36 | |
|
|
SECTION 5.05. |
Restrictions on Liens |
36 | |
|
|
SECTION 5.06. |
Maintenance of Existence |
37 | |
|
|
SECTION 5.07. |
Dissolution |
37 | |
|
|
SECTION 5.08. |
Consolidations, Mergers and Sales of Assets |
37 | |
|
|
SECTION 5.09. |
Use of Proceeds |
38 | |
|
|
SECTION 5.10. |
Compliance with Laws; Payment of Taxes |
38 | |
|
|
SECTION 5.11. |
Insurance |
38 | |
|
|
SECTION 5.12. |
Change in Fiscal Year |
38 | |
|
|
SECTION 5.13. |
Maintenance of Property |
38 | |
|
|
SECTION 5.14. |
Environmental Notices |
39 | |
|
|
SECTION 5.15. |
Environmental Matters |
39 | |
|
|
SECTION 5.16. |
Environmental Release |
39 | |
|
|
SECTION 5.17. |
Additional Shares of Common Stock |
39 | |
|
|
SECTION 5.18. |
No Significant Subsidiaries |
39 | |
|
|
SECTION 5.19. |
Debt to Total Capitalization |
39 | |
|
|
SECTION 5.20. |
Transactions with Affiliates |
39 | |
|
|
SECTION 5.21. |
Maintenance of Licenses, Permits and Registrations |
40 | |
|
|
SECTION 5.22. |
OFAC/PATRIOT ACT |
40 | |
|
|
|
|
| |
|
Article VI DEFAULTS |
40 | |||
|
|
|
|
| |
|
|
SECTION 6.01. |
Events of Default |
40 | |
|
|
|
|
| |
|
Article VII MISCELLANEOUS |
43 | |||
|
|
|
|
| |
|
|
SECTION 7.01. |
Notices |
43 | |
|
|
SECTION 7.02. |
No Waivers |
43 | |
|
|
SECTION 7.03. |
Expenses; Documentary Taxes; Indemnification |
43 | |
|
|
SECTION 7.04. |
Amendments, Waivers and Consents |
44 | |
|
|
SECTION 7.05. |
Benefit of Agreement |
45 | |
|
|
SECTION 7.06. |
Confidentiality. |
47 | |
|
|
SECTION 7.07. |
Representation by the Lender |
48 | |
|
|
SECTION 7.08. |
Governing Law |
48 | |
|
|
SECTION 7.09. |
Consent to Jurisdiction; Waiver of Jury Trial |
48 | |
|
|
SECTION 7.10. |
Interpretation |
48 | |
|
|
SECTION 7.11. |
Counterparts. |
49 | |
|
|
SECTION 7.12. |
Entire Agreement. |
49 | |
|
|
|
|
| |
|
Article VIII AGENCY PROVISIONS |
49 | |||
|
|
|
|
| |
|
|
SECTION 8.01. |
Appointment |
49 | |
|
|
SECTION 8.02. |
Delegation of Duties |
50 | |
|
|
SECTION 8.03. |
Exculpatory Provisions. |
50 | |
|
|
SECTION 8.04. |
Reliance on Communications |
51 | |
|
|
SECTION 8.05. |
Notice of Default |
51 | |
|
|
SECTION 8.06. |
Non-Reliance on the Agent and Other Lenders |
52 | |
|
|
SECTION 8.07. |
Indemnification |
52 | |
|
|
SECTION 8.08. |
The Agent in its Individual Capacity |
52 | |
|
|
SECTION 8.09. |
Successor Agent |
52 | |
|
|
SECTION 8.10. |
Other Agents |
53 | |
|
|
SECTION 8.11. |
Existing Credit Agreement |
53 | |
SCHEDULES
|
Schedule
1 |
Commitments
of the Lenders | |
|
Schedule
4.05 Certain Litigation from the Disclosure
Documents |
EXHIBITS
|
Exhibit
A |
Form
of Note | |
|
Exhibit
B-1 |
Form
of Opinion of Counsel to the Borrower | |
|
Exhibit
B-2 |
Form
of Opinion of General Counsel to the Borrower | |
|
Exhibit
C |
Form
of Assignment and Acceptance | |
|
Exhibit
D-1 |
Form
of Notice of Borrowing | |
|
Exhibit
D-2 |
Form
of Notice of Conversion | |
|
Exhibit
E |
Form
of Compliance Certificate |
AMENDED
AND RESTATED FIVE-YEAR CREDIT AGREEMENT
THIS
AMENDED AND RESTATED CREDIT AGREEMENT, dated
as of June 30, 2005 (the “Agreement”)
between PUBLIC
SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED, a South
Carolina corporation (the “Borrower”), the
lenders identified herein and such other lenders as may hereafter become a party
(the “Lenders”), and
WACHOVIA
BANK, NATIONAL ASSOCIATION as
Administrative Agent (in such capacity and its successors and assigns, the
“Agent”).
WHEREAS,
the Borrower, the Lenders, certain other lenders and the Agent are parties to
that certain Five-Year Credit Agreement, dated as of June 15, 2004, among the
Borrower, the lenders identified therein and the Agent (the “Existing
Credit Agreement”);
WHEREAS,
the Borrower has requested that the Existing Credit Agreement be amended and
restated in its entirety as set forth in this Agreement; and
WHEREAS,
the Lenders are willing, on the terms and subject to the conditions set forth in
this Agreement, to amend and restate the terms of the Existing Credit Agreement
as more particularly set forth in this Agreement.
NOW
THEREFORE, the parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
The terms
defined in this Section 1.01 shall, for all purposes of this Agreement and any
amendment hereto have the meanings set forth herein:
“Acceptable
Rating Agency” means
Moody’s and S&P.
“Affiliate” of any
Person means (i) any other Person which directly, or indirectly through one or
more intermediaries, controls such Person or (ii) any other Person which
directly, or indirectly through one or more intermediaries, is controlled by or
is under common control with such Person. As used herein, the term “control”
means possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
“Agent” has the
meaning set forth in the preamble.
“Agreement” has the
meaning set forth in the preamble.
“Alternate
Base Rate” means
for any Alternate Base Rate Loan for any day, the rate per annum equal to the
higher as of such day of (i) the Prime Rate and (ii) one-half of one percent
(0.50%) above the Federal Funds Rate for such day. For purposes of determining
the Alternate Base Rate for any day, changes in the Prime Rate and the Federal
Funds Rate shall be effective on the date of each such change.
“Alternate
Base Rate Loan” means a
loan made pursuant to Section 2.02 which bears interest at the Alternate Base
Rate.
“Applicable
Percentage” shall
be based on the Borrower’s Senior Unsecured Debt Rating, and as of any date of
determination, shall be the per annum percentage set forth opposite the
applicable ratings below (it being understood that the Applicable Percentage for
LIBOR Rate Loans shall be the percentage set out under the column “Applicable
LIBOR Margin”, the Applicable Percentage for the Facility Fee shall be the
percentage set out under the column “Applicable Facility Fee”, the Applicable
Percentage for the Utilization Fee shall be the percentage set out under the
column “Applicable Utilization Fee” and the Borrower’s Senior Unsecured Debt
Ratings shown below shall show the ratings for S&P first and then for
Moody’s):
|
Senior
Unsecured
Debt
Ratings
(S&P/Moody’s) |
Applicable
LIBOR
Margin |
Applicable
Facility
Fee |
Applicable
Utilization
Fee | |
|
Level
1
|
At
least A+/A1 |
0.190% |
0.060% |
0.100% |
|
Xxxxx
0
|
Less
than A+/A1;
at
least A/A2 |
0.230% |
0.070% |
0.100% |
|
Xxxxx
0
|
Less
than A/A2;
at
least A-/A3 |
0.270% |
0.080% |
0.100% |
|
Xxxxx
0
|
Xxxx
xxxx X-/X0;
at
least BBB+/Baa1 |
0.350% |
0.100% |
0.100% |
|
Xxxxx
0
|
Less
than BBB+/Baa1;
at
least BBB/Baa2 |
0.425% |
0.125% |
0.100% |
|
Xxxxx
0
|
Less
than BBB/Baa2;
at
least BBB-/Baa3 |
0.575% |
0.175% |
0.100% |
|
Xxxxx
0
|
Less
than BBB-/Baa3 |
0.775% |
0.250% |
0.100% |
For
purposes of the foregoing, (i) if either Moody’s or S&P shall not have in
effect a Senior Unsecured Debt Rating (other than by reason of the circumstances
referred to in the last clause of this sentence), then such rating agency shall
be deemed to have established a rating less than BBB-, in the case of S&P,
and less than Baa3, in the case of Moody’s; (ii) if the Senior Unsecured Debt
Ratings established or deemed to have been established by Moody’s and S&P
shall fall within different “Levels” and the ratings differential is one level,
the higher rating will apply; (iii) if the Senior Unsecured Debt Ratings
established or deemed to have been established by Moody’s and S&P shall fall
within different “Levels” and the ratings differential is two levels or more,
the level one below the higher of the two ratings will apply; and (iv) if the
rating system of Moody’s or S&P shall change, or if Moody’s or S&P shall
cease to be in the business of rating corporate debt obligations, the Borrower
and the Agent and the Lenders shall negotiate in good faith to amend this
definition to reflect such changed rating system or the unavailability of
ratings from Moody’s or S&P, and, pending the effectiveness of any such
amendment, the Senior Unsecured Debt Rating shall be determined by reference to
the Senior Unsecured Debt Rating most recently in effect prior to such change or
cessation. As of the date hereof, the Borrower’s Senior Unsecured Debt Rating is
at Level 2.
The
Applicable Percentages shall be adjusted effective on the next Business Day
following any change in the ratings assigned by Moody’s and S&P to the
Borrower’s Senior Unsecured Debt Rating. The Borrower shall notify the Agent in
writing promptly after becoming aware of any change in such Senior Unsecured
Debt Rating.
“Arrangers” means a
collective reference to Wachovia Capital Markets, LLC and Banc of America
Securities, LLC and “Arranger” means
either of the Arrangers.
“Assignment
and Acceptance” means
an Assignment and Acceptance executed in accordance with Section 7.05(b) in the
form attached hereto as Exhibit
C.
“Authority” means
any governmental authority, central bank or comparable agency, charged with the
interpretation or administration of any applicable law, rule or
regulation.
“BOA” means
Bank of America, N.A.
“Borrower” means
Public Service Company of North Carolina, Incorporated, a South Carolina
corporation, and its successors.
“Borrowing” means a
borrowing hereunder consisting of an Alternate Base Rate or a LIBOR Rate Loan
made to the Borrower.
“Business
Day” means
any day except a Saturday, Sunday or other day on which commercial banks in the
States of North or South Carolina are authorized or required by law to
close.
“Capitalized
Lease” means
any lease which is required to be capitalized on a balance sheet of the lessee
in accordance with GAAP, consistently applied.
“Cash
Equivalents” means
(a) securities issued or directly and fully guaranteed or insured by the United
States of America or any agency or instrumentality thereof (provided that the
full faith and credit of the United States of America is pledged in support
thereof) having maturities of not more than twelve months from the date of
acquisition, (b) Dollar denominated time deposits and certificates of deposit of
(i) any Lender or any of its Affiliates, (ii) any domestic financial institution
having capital and surplus in excess of $500,000,000 or (iii) any financial
institution whose short-term commercial paper rating from S&P is at least
A-1 or the equivalent thereof or from Xxxxx’x is at least P-1 or the equivalent
thereof (any such financial institution being an “Approved Financial
Institution”), in each case with maturities of not more than twelve months from
the date of acquisition, (c) or any commercial paper and variable or fixed rate
notes issued by any Approved Financial Institution (or by the parent company
thereof) or any domestic corporation and rated investment grade by S&P or
Xxxxx’x and maturing within 270 days of the date of acquisition, (d) repurchase
agreements with an Approved Financial Institution (including any of the Lenders)
or a securities dealer having capital and surplus in excess of $500,000,000 for
direct obligations issued by or fully guaranteed by the United States of America
in which the Borrower shall have a perfected first priority security interest
(subject to no other Liens) and having, on the date of purchase thereof, a fair
market value of at least 100% of the amount of the repurchase obligations, (e)
Investments, classified in accordance with GAAP as current assets, in money
market investment programs registered under the Investment Company Act of 1940,
as amended, which are administered by financial institutions having capital of
at least $500,000,000 and the portfolios of which are limited to investments of
the character described in the foregoing subdivisions (a) through (d) and (f)
demand deposits with insured financial institutions.
“CERCLA” means
the Comprehensive Environmental Response Compensation and Liability Act, 42
U.S.C. § 9601, et seq., as amended from time to time, and any regulations
promulgated thereunder.
“CERCLIS” means
the Comprehensive Environmental Response Compensation and Liability Inventory
System established pursuant to CERCLA.
“Closing
Date” means
June 30, 2005.
“Code” means
the Internal Revenue Code of 1986, as amended, or any successor federal tax
code. Any reference to any provision of the Code shall also be deemed to be a
reference to any successor provision or provisions thereof.
“Commitment” means
(i) with respect to each Lender, the commitment of such Lender to make its pro
rata percentage of Loans in an aggregate amount up to the amount set forth
opposite the name of the Lender on Schedule 1 hereto, subject to adjustment on
account of assignment pursuant to Section 7.05(b) or reduction in the aggregate
Commitment pursuant to Section 2.07, and (ii) with respect to the Lenders
collectively, the aggregate amount of all such Commitments.
“Common
Equity” means,
at the end of any Fiscal Quarter or Fiscal Year, the common equity of the
Borrower as set forth in the balance sheet included in any financial statements
for the Fiscal Quarter or Fiscal Year delivered to the Agent and the Lenders by
the Borrower pursuant to Section 5.01(a) or (b) hereof as relevant.
“Common
Stock” means
the common stock, no par value per share, of the Borrower.
“Contingent
Obligations” means,
with respect to any Person, without duplication, any obligations (other than
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection) guaranteeing any Debt of any other Person in any manner,
whether direct or indirect, and including without limitation any obligation,
whether or not contingent, (a) to purchase any such Debt or other obligation or
any property constituting security therefor, (b) to advance or provide funds or
other support for the payment or purchase of such Debt or obligation or to
maintain working capital, solvency or other balance sheet condition of such
other Person (including, without limitation, maintenance agreements, comfort
letters, take or pay arrangements, put agreements or similar agreements or
arrangements) for the benefit of the holder of Debt of such other Person, (c) to
lease or purchase property, securities or services primarily for the purpose of
assuring the owner of such Debt or (d) to otherwise assure or hold harmless the
owner of such Debt or obligation against loss in respect thereof. The amount of
any Contingent Obligation hereunder shall (subject to any limitations set forth
therein) be deemed to be an amount equal to the outstanding principal amount (or
maximum principal amount, if larger) of the Debt in respect of which such
Contingent Obligation is made.
“Controlled
Group” means
all members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414 of the
Code.
“Convert,”
“Conversion” and
“Converted” each
refers to a conversion of Loans of one Type into Loans of another Type or the
selection of a new, or the renewal of the same, Interest Period for LIBOR Rate
Loans, as the case may be, pursuant to Sections 2.15 or 2.16.
“Debt” of any
Person means at any date, without duplication, (i) all obligations of such
Person for borrowed money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, or upon which interest payments
are customarily made, (iii) all obligations of such Person under conditional
sale or other title retention agreements relating to property purchased by such
Person to the extent of the value of such property (other than customary
reservations or retentions of title under agreements with suppliers entered into
in the ordinary course of business), (iv) all obligations, other than trade
account obligations entered into in the ordinary course of business and
intercompany items, of such Person issued or assumed as the deferred purchase
price of property or services purchased by such Person which would appear as
liabilities on a balance sheet of such Person, (v) all Debt of others secured by
(or for which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of the proceeds of
production from, property owned or acquired by such Person, whether or not the
obligations secured thereby have been assumed, (vi) all Contingent Obligations
of such Person (other than take or pay arrangements and put agreements), (vii)
the principal portion of all obligations of such Person under (A) Capitalized
Leases and (B) any synthetic lease, tax retention operating lease, off-balance
sheet loan or similar off-balance sheet financing product of such Person where
such transaction is considered borrowed money indebtedness for tax purposes but
is classified as an operating lease in accordance with GAAP (collectively,
“Off-Balance
Sheet Debt”),
(viii) all obligations of such Person with respect to Redeemable Preferred Stock
(in the event such Person is a corporation), (ix) the Hedging Termination Value
in respect of any Hedging Agreement (excluding commodity swaps, commodity
options, forward commodity contracts and spot contracts) of such Person and (x)
the maximum amount of all performance and standby letters of credit issued or
bankers’ acceptances facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the extent unreimbursed).
The Debt of any Person shall include the Debt of any partnership or
unincorporated joint venture for which such Person is legally
obligated.
“Default” means
any condition or event which constitutes an Event of Default or which with the
giving of notice or lapse of time or both would, unless cured or waived in
writing, become an Event of Default.
“Default
Rate” means,
with respect to any Loan on any day, a per annum rate 2% greater than the rate
which would otherwise be applicable (or if no rate is applicable, whether in
respect of interest, fees or other amounts, then the Alternate Base Rate plus
2%).
“Disclosure
Documents” means the
Form 10-K filed by the Borrower with the SEC with respect to the Fiscal Year
ended December 31, 2004, and any Form 10-Q for any subsequent period, and any
Form 8-K with respect to any event occurring after December 31, 2004, and filed
by the Borrower with the SEC no less than three Business Days prior to the
Closing Date.
“Dollars” or
“$” means
dollars in lawful currency of the United States of America.
“Eligible
Assignee” means
(i) a Lender; (ii) an Affiliate of a Lender; and (iii) any other Person approved
by the Agent and, unless an Event of Default has occurred and is continuing at
the time any assignment is effected in accordance with Section 7.05, the
Borrower (such approval by the Agent or the Borrower not to be unreasonably
withheld or delayed and such approval to be deemed given by the Borrower if no
objection is received by the assigning Lender and the Agent from the Borrower
within five Business Days after notice of such proposed assignment has been
provided by the assigning Lender to the Borrower); provided,
however that
neither the Borrower nor an Affiliate of the Borrower shall qualify as an
Eligible Assignee.
“Environmental
Authority” means
any foreign, federal, state, local or regional government that exercises any
form of jurisdiction or authority under any Environmental Requirement.
“Environmental
Judgments and Orders” means
all judgments, decrees or orders arising from or in any way associated with any
Environmental Requirements, whether or not entered upon consent or written
agreements with an Environmental Authority or other entity, and whether or not
incorporated in a judgment, decree or order.
“Environmental
Liabilities” means
any liabilities, whether accrued, contingent or otherwise, arising from and in
any way associated with any Environmental Requirements.
“Environmental
Notices” means
notice from any Environmental Authority or by any other Authority, of possible
or alleged noncompliance with or liability under any Environmental Requirement,
including without limitation any complaints, citations, demands or requests from
any Environmental Authority or from any other Authority for correction of any
violation of any Environmental Requirement or any investigations concerning any
violation of any Environmental Requirement.
“Environmental
Proceedings” means
any judicial or administrative proceedings arising from or in any way associated
with any Environmental Requirement.
“Environmental
Requirement” means
any legal requirement relating to health, safety or the environment and
applicable to the Borrower or the Properties, including but not limited to any
such requirement under CERCLA or similar state legislation and all federal,
state and local laws, ordinances, regulations, orders, writs, decrees and common
law.
“ERISA” means
the Employee Retirement Income Security Act of 1974, as amended from time to
time, or any successor law. Any reference to any provision of ERISA shall also
be deemed to be a reference to any successor provision or provisions thereof.
“ERISA
Affiliate” means
an entity, whether or not incorporated, which is under common control with the
Borrower or any of its Subsidiaries within the meaning of Section 4001(a)(14) of
ERISA, or is a member of a group which includes the Borrower or any of its
Subsidiaries and which is treated as a single employer under Sections 414(b),
(c), (m), or (o) of the Code.
“Eurocurrency
Liabilities” has the
meaning assigned to that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
“Event
of Default” has the
meaning set forth in Section 6.01.
“Exchange
Act” means
the Securities Exchange Act of 1934, as amended from time to time.
“Existing
Credit Agreement” has the
meaning set forth in the recitals.
“Existing
Notes” means
the notes dated June 15, 2004, issued under the Existing Credit
Agreement.
“Facility
Fee” has the
meaning set forth in Section 2.06(a).
“Facility
Fee Payment Date” means
each March 31, June 30, September 30 and December 31.
“Fee
Letter” means
that certain fee letter dated May 20, 2005, from the Agent, BOA and the
Arrangers, agreed to and accepted by, among others, the Borrower.
“Federal
Funds Rate” means,
for any day, the rate per annum (rounded upward, if necessary, to the next
higher 1/100th 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 of quotations for such day on such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by the Agent.
“Fiscal
Quarter” means
any fiscal quarter of the Borrower.
“Fiscal
Year” means
any fiscal year of the Borrower.
“GAAP” means
generally accepted accounting principles in the United States of America in
effect from time to time.
“Granting
Bank” has the
meaning set forth in Section 7.05(h).
“Guarantee” by any
Person means any obligation, contingent or otherwise, of such Person directly or
indirectly guaranteeing any Debt or other obligation of any other Person and,
without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to secure, purchase or pay
(or advance or supply funds) for the purchase or payment of such Debt or other
obligation (whether arising by virtue of partnership arrangements, by agreement
to keep-well, to purchase assets, goods, securities or services, to provide
collateral security or to maintain financial statement conditions or otherwise)
or (ii) entered into for the purpose of assuring in any other manner the obligee
of such Debt or other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part); provided that the
term Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business. The term “Guarantee” used as a verb has a
corresponding meaning.
“Hazardous
Materials” means
(a) solid or hazardous waste, as defined in the Resource Conservation and
Recovery Act of 1980, 42 U.S.C. § 6901, et seq. and its
implementing regulations and amendments, or in any applicable state or local law
or regulation, (b) “hazardous substance,” “pollutant” or “contaminant” as
defined in CERCLA, or in any applicable state or local law or regulation, (c)
gasoline, or any other petroleum product or by-product, including crude oil or
any fraction thereof, (d) “toxic substances,” as defined in the Toxic Substances
Control Act of 1976, or in any applicable state or local law or regulation and
(e) “insecticides,” “fungicides” or “rodenticides” as defined in the Federal
Insecticide, Fungicide and Rodenticide Act of 1975 or in any applicable state or
local law or regulation, as each such Act, law or regulation may be amended from
time to time.
“Hedging
Agreement” means
(a) any and all interest rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond or
bond price or bond index swaps or options or forward bond or forward bond price
or forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any of
the foregoing), whether or not any such transaction is governed by or subject to
any master agreement, and (b) any and all transactions of any kind, and the
related confirmations, which are subject to the terms and conditions of, or
governed by, any form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement, together
with any related schedules, a “Master
Agreement”),
including any such obligations or liabilities under any Master
Agreement.
“Hedging
Termination Value” means,
in respect of any one or more Hedging Agreements, after taking into account the
effect of any legally enforceable netting agreement relating to such Hedging
Agreements, (a) for any date on or after the date such Hedging Agreements have
been closed out and termination value(s) determined in accordance therewith,
such termination value(s), and (b) for any date prior to the date referenced in
clause (a), the amount(s) determined as the xxxx-to-market value(s) for such
Hedging Agreements, as determined based upon one or more mid-market or other
readily available quotations provided by any recognized dealer in such Hedging
Agreements (which may include a Lender or any Affiliate of a
Lender).
“Indemnified
Person” has the
meaning set forth in Section 7.03(c).
“Indenture” means
the Indenture dated as of January 1, 1996 from the Borrower as successor to
Public Service Company of North Carolina, Incorporated, a North Carolina
corporation, to Wachovia Bank, National Association (formerly known as First
Union National Bank of North Carolina), as amended and supplemented to date and
as it may hereafter be amended and supplemented.
“Interest
Period” means,
for each LIBOR Rate Loan, the period commencing on the date of such LIBOR Rate
Loan or the date of the Conversion of any LIBOR Rate Loan into such a LIBOR Rate
Loan and ending on the last day of the period selected by the Borrower pursuant
to the provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period (or such other day as
may be selected by the Borrower in accordance with the provisions hereto) and
ending on the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be one, two,
three or six months, in each case as the Borrower may select by notice to the
Agent pursuant to Section 2.02(a) or Section 2.15; provided,
however, that:
(i) the
Borrower may not select any Interest Period that ends after the Termination
Date;
(ii) whenever
the last day of any Interest Period would otherwise occur on a day other than a
LIBOR Business Day, the last day of such Interest Period shall be extended to
occur on the next succeeding LIBOR Business Day; provided, that if such
extension would cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall occur on
the next preceding LIBOR Business Day; and
(iii) any
Interest Period for a LIBOR Rate Loan which begins on the last LIBOR Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end on the
last LIBOR Business Day of the appropriate subsequent calendar
month.
“Investment” means
any investment in any Person, whether by means of purchase or acquisition of
obligations or securities of such Person, capital contribution to such Person,
loan or advance to such Person, making of a time deposit with such Person,
Guarantee or assumption of any obligation of such Person or otherwise; but does
not include any demand deposit with insured financial institutions.
“Lenders” means
each of the Lenders identified on the signature pages hereto, and their
successors and permitted assigns.
“Lending
Office” means,
as to each Lender, its office located at its address set forth on Schedule 1
hereof (or identified on Schedule 1 hereof as its “Domestic Lending Office”) or
such other office as such Lender may hereafter designate as its Lending Office
by notice to the Borrower, and as to any Eligible Assignee, the office of the
Eligible Assignee designated as such in its Assignment and Acceptance or such
other office as the Eligible Assignee may designate as its Lending Office.
“Lending
Party” means
each of the Agent and each Lender.
“LIBOR
Business Day” means
any Business Day on which dealings in Dollar deposits are carried on in the
London interbank market and on which commercial banks are open for domestic and
international business (including dealings in Dollar deposits) in London,
England.
“LIBOR
Lending Office” means,
as to each Lender, the office of the Lender designated as its “LIBOR Lending
Office” on Schedule 1 hereof, or such other office as the Lender may from time
to time specify to the Borrower as its “LIBOR Lending Office,” and as to any
Eligible Assignee, the office of the Eligible Assignee designated as such in its
Assignment and Acceptance or such other office as the Eligible Assignee may
designate as its LIBOR Lending Office.
“LIBOR
Rate” means,
with respect to each day during each Interest Period pertaining to a LIBOR Rate
Loan, the rate appearing on Page 3750 of the Dow Xxxxx Markets Service (or on
any successor or substitute page of such service, or any successor to or
substitute for such service, providing rate quotations comparable to those
currently provided on such page of such service as determined by the Agent from
time to time for purposes of providing quotations of interest rates applicable
to Dollar deposits in the London interbank market) at approximately 11:00 AM
(London time), two LIBOR Business Days prior to the commencement of such
Interest Period, as the rate for Dollar deposits with a maturity comparable to
such Interest Period. In the event that such rate is not available at such time
for any reason, then the “LIBOR
Rate” with
respect to such LIBOR Rate Loan for such Interest Period shall be the rate per
annum equal to the rate at which the principal London office of the Agent offers
to place Dollar deposits at or about 11:00 AM (London time), two LIBOR Business
Days prior to the beginning of such Interest Period with first-class banks in
the London interbank market for delivery on the first day of such Interest
Period for the number of days comprised therein and in an amount comparable to
the amount of its LIBOR Rate Loan to be outstanding during such Interest Period.
“LIBOR
Rate Loan” means a
Loan which bears interest at a rate based upon the LIBOR Rate.
“LIBOR
Rate Reserve Percentage” for the
Interest Period of any LIBOR Rate Loan means the reserve percentage applicable
during such Interest Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such
Interest Period during which any such percentage shall be so applicable) under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve System
with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities.
“Lien” means,
with respect to any asset, any mortgage, deed to secure debt, deed of trust,
lien, pledge, charge, security interest, security title, preferential
arrangement which has the practical effect of constituting a security interest,
servitude or encumbrance of any kind in respect of such asset. For the purposes
of this Agreement, the Borrower 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, Capitalized Lease or other title
retention agreement relating to such asset.
“Loan” means
an Alternate Base Rate Loan or a LIBOR Rate Loan and “Loans” means
Alternate Base Rate Loans or LIBOR Rate Loans or any or all of them, as the
context shall require.
“Loan
Documents” means
this Agreement, the Notes and any other document evidencing, relating to or
securing the Loans, and any other document or instrument delivered from time to
time in connection with this Agreement, the Notes or the Loans, as such
documents and instruments may be amended or supplemented from time to time.
“Margin
Stock” means
“margin stock” as defined in Regulation T or U of the Board of Governors of the
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
“Material
Adverse Effect” means a
material adverse effect on (a) the business, assets, liabilities (actual or
contingent), operations, condition (financial or otherwise) of the Borrower on a
consolidated basis and its Subsidiaries, taken as a whole, (b) the ability of
the Borrower to perform its obligations under this Agreement or any of the other
Loan Documents to which the Borrower is a party or (c) the validity or
enforceability against the Borrower of this Agreement, any of the other Loan
Documents to which the Borrower is a party, or the rights and remedies of the
Agent and the Lenders hereunder or thereunder.
“Moody’s” means
Xxxxx’x Investors Service, Inc. and its successors.
“Multi-employer
Plan” shall
have the meaning set forth in Section 4001(a)(3) of ERISA.
“Multiple
Employer Plan” means a
Plan covered by Title IV of ERISA other than a Multi-employer Plan, to which the
Borrower or any ERISA Affiliate and at least one employer other than the
Borrower or any ERISA Affiliate are contributing sponsors.
“NCUC” means
the North Carolina Utilities Commission.
“NCUC
Order” means
that certain NCUC order, Docket No. G-5, Sub 453, or any renewal or replacement
order thereof, together with any amendatory or supplemental order thereto, in
each case authorizing the Borrower to issue the debt in such amounts and during
such periods as set forth therein.
“Note” or
“Notes” means
each of the amended and restated promissory notes of the Borrower of even date
and other promissory notes that are required hereby evidencing the obligation of
the Borrower to repay the Loans to the Lenders, substantially in the form of
Exhibit
A.
“Notice
of Borrowing” has the
meaning set forth in Section 2.02(a).
“Obligations”
means the
obligations of the Borrower under the Existing Credit Agreement which continue
pursuant to the terms of this Agreement.
“OFAC” has the
meaning set forth in Section 5.22.
“Off-Balance
Sheet Debt” has the
meaning set forth in the definition of “Debt”.
“Other
Taxes” has the
meaning set forth in Section 2.14(b).
“Participant” has the
meaning set forth in Section 7.05(e).
“Participation
Interest” has the
meaning set forth in Section 2.19.
“Patriot
Act” has the
meaning set forth in Section 5.22.
“PBGC” means
the Pension Benefit Guaranty Corporation or any entity succeeding to any or all
of its functions under ERISA.
“Person” means
an individual, a corporation, a partnership (including, without limitation, a
joint venture), an unincorporated association, a trust or any other entity or
organization, including, but not limited to, a government or political
subdivision or an agency or instrumentality thereof.
“Plan” means
at any time an employee pension benefit plan which is covered by Title IV of
ERISA or subject to the minimum funding standards under Section 412 of the Code
and is either (i) maintained by a member of the Controlled Group for employees
of a member of the Controlled Group or (ii) maintained pursuant to a collective
bargaining agreement or any other arrangement under which more than one employer
makes contributions and to which a member of the Controlled Group is then making
or accruing an obligation to make contributions or has within the preceding five
plan years made contributions.
“Prime
Rate” means a
rate per annum equal to the Agent’s index or base rate of interest announced
from time to time by the Agent (which is not necessarily the lowest rate charged
to any customer), changing when and as such index or base rate changes.
“pro
rata share” or
“pro
rata percentage” means
for each Lender, a fraction (expressed as a decimal) the numerator of which is
the Commitment of such Lender at such time and the denominator of which is the
aggregate Commitment of the Lenders at such time. The initial pro rata
percentages are set out on Schedule 1 hereto.
“Properties” means
all real property owned, leased or otherwise used or occupied by the Borrower,
wherever located.
“PUHCA” means
the Public Utility Holding Company Act of 1935, as amended.
“Redeemable
Preferred Stock” of any
Person means any preferred stock issued by such Person which is at any time
prior to the Termination Date either (i) mandatorily redeemable (by sinking fund
or similar payment or otherwise) or (ii) redeemable at the option of the holder
thereof.
“Register” has the
meaning set forth in Section 7.05(c).
“Reportable
Event” means a
“reportable event” as defined in Section 4043 of ERISA with respect to which the
notice requirements to the PBGC have not been waived.
“Required
Lenders” means,
at any time, the Lenders which are then in compliance with their obligations
hereunder (as determined by the Agent) and holding in the aggregate more than
50% of the aggregate amount of all Loans outstanding under all Commitments, or,
if no amount of the Loans is outstanding, more than 50% of the aggregate
principal amount of all Commitments.
“Responsible
Officer” means
chief financial officer, chief accounting officer, vice president-finance,
treasurer or assistant treasurer of the Borrower.
“SCANA” means
SCANA Corporation, a South Carolina corporation, together with its successors
and assigns.
“SEC” means
the Securities and Exchange Commission.
“SEC
Order” means
that certain SEC release No. 35-27649, or any renewal or replacement order
thereof, together with any supplemental order thereto, in each case authorizing
the Borrower to issue debt in such amounts and during such periods as set forth
therein.
“Senior
Unsecured Debt Rating” means
the rating assigned by an Acceptable Rating Agency to the Borrower's senior,
unsecured, non-credit enhanced, long-term debt.
“Significant
Subsidiary” means a
Subsidiary which meets any of the following conditions:
(i) The
Borrower’s and its other Subsidiaries’ investments in and advances to the
Subsidiary exceed 10% of the Total Assets of the Borrower and its Subsidiaries
consolidated as of the end of the most recently completed Fiscal Year;
or
(ii) The
Borrower’s and its other Subsidiaries’ proportionate share of the total assets
(after intercompany eliminations) of the Subsidiary exceeds 10% of the Total
Assets of the Borrower and its Subsidiaries consolidated as of the end of the
most recently completed Fiscal Year; or
(iii) The
Borrower’s and its other Subsidiaries’ equity in the income from continuing
operations before income taxes, extraordinary items and cumulative effect of
changes in accounting principles of the Subsidiary exceeds 10% of such income of
the Borrower and its Subsidiaries consolidated for the most recently completed
Fiscal Year; provided, however PSNC Cardinal Pipeline Company and PSNC Blue
Ridge Corporation shall not be deemed a Significant Subsidiary if (a) such
income of PSNC Cardinal Pipeline Company or PSNC Blue Ridge Corporation, as
applicable, exceeds the 10% threshold set forth in this clause (iii) above and
(b) PSNC Cardinal Pipeline Company or PSNC Blue Ridge Corporation, as
applicable, does not meet either of the conditions set forth in clause (i) or
(ii) above.
“Single
Employer Plan” means
any Plan which is covered by Title IV of ERISA and adopted solely by the
Borrower, solely by an ERISA Affiliate or by a group consisting of the Borrower
and one or more ERISA Affiliates.
“S&P” means
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc. and its successors.
“Solvent” means,
with respect to any Person as of a particular date, that on such date (a) such
Person is able to pay its debts and other liabilities, contingent liabilities
and other commitments as they mature, (b) such Person does not intend to, and
does not believe that it will, incur debts or liabilities beyond such Person’s
ability to pay as such debts and liabilities mature, (c) such Person is not
engaged in a business or a transaction, and is not about to engage in a business
or a transaction, for which such Person’s assets would constitute unreasonably
small capital after giving due consideration to the prevailing practice in the
industry in which such Person is engaged or is to engage, (d) the fair value of
the assets of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person and (e)
the present fair saleable value of the assets of such Person is not less than
the amount that will be required to pay the probable liability of such Person on
its debts as they become absolute and matured. In computing the amount of
contingent liabilities at any time, it is intended that such liabilities will be
computed as the amount which, in light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
“SPC” has the
meaning set forth in Section 7.05(h).
“Subsidiary” means
any corporation or other entity of which securities or other ownership interests
having ordinary voting power to elect a majority of the board of directors or
other Persons performing similar functions are at the time directly or
indirectly owned by the Borrower.
“Taxes” has the
meaning set forth in Section 2.14(a).
“Termination
Date” means
June 30, 2010.
“Termination
Event” means
(a) with respect to any Single Employer Plan, the occurrence of a Reportable
Event or the substantial cessation of operations (within the meaning of Section
4062(e) of ERISA), (b) the withdrawal of the Borrower or any ERISA Affiliate
from a Multiple Employer Plan during a plan year in which it was a substantial
employer (as such term is defined in Section 4001(a)(2) of ERISA), or the
termination of a Multiple Employer Plan, (c) the distribution of a notice of
intent to terminate a Single Employer Plan pursuant to Section 4041(a)(2) of
ERISA, (d) the institution of proceedings to terminate or the actual termination
of a Single Employer Plan by the PBGC under Section 4042 of ERISA, (e) any event
or condition which might reasonably constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
Single Employer Plan, or (f) the complete or partial withdrawal of the Borrower
or any ERISA Affiliate from a Multi-employer Plan or the termination of a
Multi-employer Plan.
“Total
Assets” means,
at the end of any Fiscal Quarter or Fiscal Year, the amount of total assets as
set forth in the balance sheet included in any financial statements for such
Fiscal Quarter or Fiscal Year delivered by the Borrower pursuant to Section
5.01(a) or (b) hereof as relevant.
“Total
Capitalization” means
the sum of (i) preferred stock of the Borrower and its Subsidiaries and any
premium thereon (less deferred compensation relating to unallocated convertible
preferred stock of the Borrower and its Subsidiaries held by the employee stock
ownership plan of the Borrower and its Subsidiaries), plus (ii)
Common Equity, plus (iii)
all Debt of the Borrower and its Subsidiaries (net of unamortized premium and
discount), less
(iv) unamortized common stock expense of the Borrower and its Subsidiaries.
“Type,” with
respect to any Loan, means any of the following, each of which shall be deemed
to be a different “Type” of
Loan: an Alternate Base Rate Loan, a LIBOR Rate Loan having a one-month Interest
Period, a LIBOR Rate Loan having a two-month Interest Period, a LIBOR Rate Loan
having a three-month Interest Period and a LIBOR Rate Loan having a six-month
Interest Period.
“Utilization
Fee” has the
meaning set forth in Section 2.06(b).
“Utilization
Fee Payment Date” means
each March 31, June 30, September 30 and December 31.
“Wachovia”
means,
Wachovia Bank, National Association.
SECTION 1.02. Accounting
Terms and Determinations.
Unless
otherwise specified herein, all terms of an accounting character used herein
shall be interpreted, all accounting determinations hereunder shall be made, and
all financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP, applied on a basis consistent (except for changes agreed
to by the Borrower’s independent public accountants) with the most recent
audited financial statements of the Borrower delivered to the Agent and the
Lenders pursuant to Section 4.04(a).
SECTION 1.03. Use
of Defined Terms.
All terms
defined in this Agreement shall have the same meanings when used in any of the
other Loan Documents, unless otherwise defined therein or unless the context
shall otherwise require.
SECTION 1.04. Terminology.
All
personal pronouns used in this Agreement, whether used in the masculine,
feminine or neuter gender, shall include all other genders; the singular shall
include the plural and the plural shall include the singular. Titles of Articles
and Sections in this Agreement are for convenience only, and neither limit nor
amplify the provisions of this Agreement.
SECTION 1.05. References.
Unless
otherwise indicated, references in this Agreement to “Articles,”
“Exhibits,”
“Schedules” and
“Sections” are
references to articles, exhibits, schedules and sections hereof.
ARTICLE
II
THE
CREDITS
SECTION
2.01. Commitment
to Lend.
(a) Each
Lender severally agrees, on the terms and conditions set forth herein, to make
its pro rata share of Loans to the Borrower from time to time before the
Termination Date, provided that, immediately after each such Loan is made, (i)
with respect to each Lender individually, the aggregate principal amount of
Loans made or attributable to such Lender shall not exceed such Lender’s
Commitment, and (ii) with respect to the Lenders collectively, the aggregate
outstanding principal amount of all Loans shall not exceed the Lenders’
aggregate Commitment. Each Borrowing (whether for an Alternate Base Rate Loan or
a LIBOR Rate Loan) under this Section shall be in an aggregate principal amount
of $5,000,000 or any larger multiple of $1,000,000 (except that any such
Borrowing may be in the aggregate outstanding amount of the unborrowed
Commitment).
(b) Within
the foregoing limits, the Borrower may borrow under this Section, repay or, to
the extent permitted by Section 2.09, prepay Loans and reborrow under this
Section at any time before the Termination Date.
SECTION
2.02. Method
of Borrowing.
(a) Each
Borrowing shall be made on a Business Day, or in the case of a Borrowing which
is a LIBOR Rate Loan, on a LIBOR Business Day, upon notice from the Borrower to
the Agent, given (i) in the case of a Borrowing which is an Alternate Base Rate
Loan, not later than 11:00 AM (Charlotte, North Carolina time) on the Business
Day prior to the day of the proposed Borrowing and (ii) in the case of a
Borrowing which is a LIBOR Rate Loan, not later than 11:00 AM (Charlotte, North
Carolina time) on the third LIBOR Business Day prior to the date of the proposed
Borrowing. Each such notice of a Borrowing (a “Notice
of Borrowing”) by the
Borrower shall be in substantially the form of Exhibit
D-1 hereto,
specifying therein the requested (A) date of such Borrowing, (B) Type of Loan to
be made in connection with such Borrowing, (C) aggregate amount of such
Borrowing and (D) in the case of a Borrowing comprising a LIBOR Rate Loan,
initial Interest Period for each such Loan. The Agent shall give notice to each
Lender promptly upon receipt of each Notice of Borrowing pursuant to this
Section 2.02(a), the contents thereof and each such Lender’s share of any
Borrowing to be made pursuant thereto. Each Lender shall, before 1:00 PM
(Charlotte, North Carolina time) on the date of such Borrowing, make available
to the Agent for the account of the Borrower in same day funds, the proceeds of
such Borrowing (in Dollars). Such Borrowing will then be made available to the
Borrower by the Agent by crediting the account of the Borrower on the books of
the Agent with the aggregate of the amounts made available to the Agent by the
Lenders and in like funds as received by the Agent.
(b) Each
Notice of Borrowing shall be irrevocable and binding on the Borrower. In the
case of any Borrowing that the related Notice of Borrowing specifies is to be
comprised of LIBOR Rate Loans, the Borrower shall indemnify the applicable
Lender against any loss, cost or expense incurred by such Lender as a result of
any failure of the Borrower to fulfill on or before the date specified in such
Notice of Borrowing for such Loans, the applicable conditions set forth in
Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
redeployment of deposits or other funds acquired by such Lender as part of such
Borrowing when such Loan is not made on such date.
SECTION
2.03. Evidence
of Loans.
(a) Each
Lender shall maintain an account or accounts evidencing each Loan made by such
Lender to the Borrower from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time under this Agreement.
Each Lender will make reasonable efforts to maintain the accuracy of its account
or accounts, and to update promptly its account or accounts from time to time,
as necessary.
(b) The Agent
shall maintain the Register pursuant to Section 7.05(c) and a subaccount for
each Lender, in which Register and subaccounts (taken together) shall be
recorded (i) the date, amount and Interest Period, if applicable, of each Loan,
and whether such Loan is an Alternate Base Rate Loan or a LIBOR Rate Loan, (ii)
the amount of any principal or interest due and payable or to become due and
payable to each Lender hereunder and (iii) the amount of any sum received by the
Agent hereunder from or for the account of the Borrower and each Lender’s
percentage share thereof. The Agent will make reasonable efforts to maintain the
accuracy of the subaccounts referred to in the preceding sentence and to update
promptly such subaccounts from time to time, as necessary.
(c) The
entries made in the Register, subaccounts and accounts maintained pursuant to
this Section 2.03, to the extent permitted by applicable law, shall be prima
facie evidence of the existence and amounts of such obligations of the Borrower
therein recorded; provided,
however, that
the failure of the Agent or any Lender to maintain any such Register, subaccount
or account, as applicable, or any error therein, shall not in any manner affect
the obligations of the Borrower to repay the Loans in accordance with the terms
thereof.
(d) Upon the
request of any Lender, which request shall be made through the Agent to the
Borrower, the Borrower shall deliver to such Lender a duly executed Note in the
form of Exhibit
A with
appropriate insertions as to dates and principal amounts.
SECTION
2.04. Maturity
of Loans; Termination of Commitment.
Each Loan
shall mature, and the principal amount thereof shall be due and payable in full,
and the Commitment shall terminate, on the Termination Date.
SECTION
2.05. Interest
Rates.
(a) The
Borrower shall pay interest on the unpaid principal amount of each Loan from the
date of such Loan until such Loan shall be paid in full, at the following rates
per annum:
(i) if such
Loan is an Alternate Base Rate Loan, a variable rate per annum equal at all
times to the Alternate Base Rate in effect from time to time, payable quarterly
in arrears on the last day of each March, June, September and December while
such Alternate Base Rate Loan is outstanding and on the date such Alternate Base
Rate Loan shall be Converted or paid in full; and
(ii) if such
Loan is a LIBOR Rate Loan, a fixed rate per annum during the Interest Period
equal to the LIBOR Rate for such Interest Period plus the Applicable Percentage,
payable on the last day of the Interest Period (and, if such Interest Period
extends over three months, at the end of each three month interval during such
Interest Period) and on the date such LIBOR Rate Loan shall be Converted or paid
in full.
(b) Notwithstanding
anything to the contrary contained in this Agreement or any other Loan Document,
for each day following the occurrence and during the continuance of an Event of
Default, the outstanding principal of and (to the extent permitted by applicable
law) overdue interest on the Loans shall bear interest at a per annum rate equal
to the Default Rate, payable on demand.
SECTION
2.06. Fees.
(a) The
Borrower shall pay to the Agent, for the ratable benefit of the Lenders, a
facility fee (the “Facility
Fee”) equal
to the product of (i) the average daily amount of the Commitments (regardless of
usage, calculated from the later of the Closing Date or the preceding Facility
Fee Payment Date) times (ii) a
per annum percentage equal to the Applicable Percentage. The Facility Fee shall
accrue from and including the Closing Date to, but excluding, the Termination
Date and shall be payable in arrears on each Facility Fee Payment Date and on
the Termination Date; provided that should the Commitments be terminated at any
time prior to the Termination Date for any reason, the entire accrued and unpaid
Facility Fee shall be paid on the date of such termination.
(b) If at any
time the aggregate principal amount of outstanding Loans exceeds an amount equal
to fifty percent (50%) of the Lenders’ aggregate Commitments, the Borrower shall
pay to the Agent, for the ratable benefit of the Lenders, a utilization fee (the
“Utilization
Fee”) equal
to the product of (i) the average daily aggregate principal amount of
outstanding Loans, calculated from the date the aggregate principal amount of
outstanding Loans exceeds an amount equal to fifty percent (50%) of the Lenders’
aggregate Commitments to but excluding the date the aggregate principal amount
of outstanding Loans falls below an amount equal to fifty percent (50%) of the
Lenders’ aggregate Commitments, times (ii) a
per annum percentage equal to the Applicable Percentage. The Utilization Fee
shall be payable in arrears on each Utilization Fee Payment Date and on the
Termination Date; provided that should the Commitments be terminated at any time
prior to the Termination Date for any reason, the entire accrued and unpaid
Utilization Fee shall be paid on the date of such termination. The Utilization
Fee shall accrue from any date the aggregate principal amount of outstanding
Loans exceeds an amount equal to fifty percent (50%) of the Lenders’ aggregate
Commitments to but excluding the date the aggregate principal amount of
outstanding Loans falls below an amount equal to fifty percent (50%) of the
Lenders’ aggregate Commitments.
(c) In
addition to the fees provided for in substance in subsections (a) and (b) above,
the Borrower shall pay to the Agent, for the account of the Agent, BOA and each
Arranger, such other fees as are provided for in the Fee Letter.
SECTION
2.07. Optional
Termination or Reduction of Commitment.
The
Borrower may, upon at least three Business Days’ notice to the Lender, terminate
at any time, or reduce from time to time by an aggregate amount of at least
$5,000,000 (and in increments of $1,000,000 in excess thereof), the Commitments.
All accrued Facility Fees (as provided under Section 2.06) on the Commitments
(in the case of a termination of the Commitments) or on the portion of the
Commitments being reduced (in the case of a reduction of the Commitments) shall
be payable on the effective date of such reduction or termination.
SECTION
2.08. Mandatory
Prepayments.
On each
date on which the Commitments are reduced pursuant to Section 2.07, the Borrower
shall repay or prepay such principal amount of the outstanding Loans, if any
(together with interest accrued thereon), as may be necessary so that after such
payment the aggregate unpaid principal amount of the Loans does not exceed the
amount of the Commitments as then reduced.
SECTION
2.09. Optional
Prepayments.
The
Borrower may, (a) upon at least one Business Day’s notice to the Lender in the
case of any Alternate Base Rate Loan and (b) upon at least three LIBOR Business
Days notice in the case of any LIBOR Rate Loan, prepay any Loan in whole at any
time, or from time to time in part in amounts aggregating at least $5,000,000
(and in increments of $1,000,000 in excess thereof), by paying the principal
amount to be prepaid together with accrued interest thereon to the date of
prepayment and any compensation payable pursuant to Section 2.10. The Borrower
will exercise its option to prepay all then outstanding Loans in full if at any
time the conditions to the continued effectiveness of the authorizations in the
SEC Order or the NCUC Order are not satisfied.
SECTION
2.10. Compensation
after Prepayment or Conversion.
The
Borrower shall, upon the demand of any Lender, pay to such Lender any amounts
which are required to compensate such Lender for any losses, costs or expenses
which it may reasonably incur as a result of the optional or mandatory
prepayment or Conversion of any LIBOR Rate Loan on any date other than the last
day of the applicable Interest Period, or the failure to prepay any Loan on the
date of prepayment specified in any notice of prepayment, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund or maintain the Loan. A certificate of such
Lender setting forth the basis for determining such amount or amounts necessary
to compensate such Lender shall be forwarded to the Borrower through the Agent
and shall be conclusively presumed to be correct save for manifest
error.
SECTION
2.11. General
Provisions as to Payments.
(a) The
Borrower shall make each payment of principal of, and interest on, the Loans and
of Facility Fees and Utilization Fees hereunder not later than 1:00 PM
(Charlotte, North Carolina time) on the date when due in federal or other funds
immediately available to the Agent for each Lender at its Lending
Office.
(b) Subject
to subsection (c) of this Section 2.11, whenever any payment of principal of, or
interest on, the Loans or of Facility Fees shall be due on a day which is not a
Business Day, the date for payment thereof shall be extended to the next
succeeding Business Day. If the date for any payment of principal is extended by
operation of law or otherwise, interest thereon shall be payable for such
extended time.
(c) Whenever
any payment to be made hereunder in respect of any LIBOR Rate Loan, or in
respect of interest computed at the LIBOR Rate, shall be stated to be due on a
day other than a LIBOR Business Day, such payment shall be made on the next
succeeding LIBOR Business Day and such extension of time shall in such case be
included in the computation of the payment of interest; provided that, if such
extension of time would cause any such payment to be made in the next following
calendar month, such payment shall be made, and the last day of the applicable
Interest Period shall occur, on the next preceding LIBOR Business
Day.
SECTION
2.12. Computation
of Interest and Fees.
(a) The
Facility Fee, Utilization Fee and other fees payable hereunder and interest on
LIBOR Rate Loans shall be computed on the basis of a year of 360 days and paid
for the actual number of days elapsed.
(b) Interest
on Alternate Base Rate Loans shall be computed on the basis of a 365- or 366-day
year for the actual number of days elapsed for so long as the Alternate Base
Rate is based on the Prime Rate and on the basis of a 360-day year and paid for
the actual number of days elapsed so long as the Alternate Base Rate is based on
the Federal Funds Rate.
SECTION
2.13. Compensation,
Additional Interest.
(a) If any
Lender shall have determined that after the date hereof the adoption of any
applicable law, rule or regulation regarding capital adequacy, or any change in
any existing or future law, rule or regulation, or any change in the
interpretation or administration thereof, or compliance by such Lender (or its
Lending Office) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any Authority, other than as
described in subsection (b) of this Section 2.13, has or would have the effect
of reducing the rate of return on such Lender’s capital as a consequence of its
obligations hereunder to a level below that which such Lender could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender’s policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then such Lender shall promptly notify the Borrower
and from time to time, within 15 days after demand by such Lender, the Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender for such reduction; provided that the Borrower shall have no
liability hereunder for any amount allocable to a period earlier than 90 days
before the date of such demand.
(b) Without
duplication of the amounts set forth in clause (a) above, the Borrower shall pay
to each Lender, so long as such Lender shall be required under regulations of
the Board of Governors of the Federal Reserve System to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount of each LIBOR
Rate Loan for the Interest Period of such Loan, at an interest rate per annum
equal at all times to the remainder obtained by subtracting (i) the LIBOR Rate
for the Interest Period for such Loan from (ii) the rate obtained by dividing
such LIBOR Rate by a percentage equal to 100% minus the LIBOR Rate Reserve
Percentage for such Interest Period, payable on each date on which interest is
payable on such LIBOR Rate Loan; provided that the Borrower shall have no
liability hereunder for any amount allocable to an Interest Period ending
earlier than 90 days before the date of the demand.
(c) The
provisions of this Section 2.13 shall be applicable with respect to any
Participant or Eligible Assignee and, subject to Section 7.05(e), any
calculations required by such provisions shall be made based upon the
circumstances of such Participant or Eligible Assignee.
SECTION
2.14. Taxes.
(a) Any and
all payments by the Borrower to or for the account of any Lender or the Agent
hereunder or under any other Loan Document shall be made free and clear of and
without deduction for any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Agent, taxes imposed on
its income and franchise taxes imposed on it, by the jurisdiction (or any
political subdivision thereof) under the laws of which such Lender or the Agent,
as the case may be, is organized or maintains a Lending Office (all such
non-excluded taxes, duties, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as “Taxes”). If
the Borrower shall be required by law to deduct any Taxes from or in respect of
any sum payable under this Agreement or any other Loan Document to any Lender or
the Agent, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.14) such Lender or the Agent receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions, (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law, and (iv) the Borrower shall furnish to the
Agent, at its address referred to in Section 7.01, the original or a certified
copy of a receipt evidencing payment thereof.
(b) In
addition, the Borrower agrees to pay any and all present or future stamp or
documentary taxes and any other excise or property taxes or charges or similar
levies which arise from any payment made under this Agreement or any other Loan
Document or from the execution or delivery of, or otherwise with respect to,
this Agreement or any other Loan Document (hereinafter referred to as
“Other
Taxes”).
(c) The
Borrower agrees to indemnify each Lender and the Agent for the full amount of
Taxes and Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under this Section
2.14) paid by such Lender or the Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto.
(d) Each
Lender that is not a United States person under Section 7701(a)(30) of the Code,
on or prior to the date of its execution and delivery of this Agreement in the
case of each Lender listed on the signature pages hereof and on or prior to the
date on which it becomes a Lender in the case of each other Lender, and from
time to time thereafter if requested in writing by the Borrower or the Agent
(but only so long as such Lender remains lawfully able to do so), shall provide
the Borrower and the Agent with (i) Internal Revenue Service Form W-8 BEN or W-8
ECI, as appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that such Lender is entitled to benefits under an income tax
treaty to which the United States is a party which reduces to zero the rate of
withholding tax on payments of interest or certifying that the income receivable
pursuant to this Agreement is effectively connected with the conduct of a trade
or business in the United States, (ii) Internal Revenue Service Form W-8 IMY
(along with such other required documentation or withholding certificates), or
any successor form prescribed by the Internal Revenue Service, from which the
Borrower and the Agent can conclude that the Borrower and/or the Agent is not
required to withhold on payments to be made to such Lender by the Borrower
pursuant to this Agreement; (iii) Internal Revenue Form W-8 EXP, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Lender is not subject to withholding tax on payments of interest; (iv) Internal
Revenue Service Form W-9, or any successor form prescribed by the Internal
Revenue Service certifying that such Lender is not subject to backup withholding
and/or (v) any other form or certificate required by any taxing authority
(including any certificate required by Sections 871(h) and 881(c) of the
Internal Revenue Code), certifying that such Lender is entitled to an exemption
from tax on payments pursuant to this Agreement or any of the other Loan
Documents.
(e) For any
period with respect to which a Lender has failed to provide the Borrower and the
Agent with the appropriate form pursuant to Section 2.14(d) (unless such failure
is due to a change in treaty, law or regulation occurring subsequent to the date
on which a form originally was required to be provided), such Lender shall not
be entitled to indemnification under Section 2.14(a) or 2.14(b) with respect to
Taxes imposed by the United States; provided,
however, that
should a Lender, which is otherwise exempt from withholding tax, become subject
to Taxes because of its failure to deliver a form required hereunder, the
Borrower shall take such steps as such Lender shall reasonably request to assist
such Lender to recover such Taxes.
(f) If the
Borrower is required to pay additional amounts to or for the account of any
Lender pursuant to this Section 2.14, then such Lender will agree to use
reasonable efforts to change the jurisdiction of its applicable Lending Office
so as to eliminate or reduce any such additional payment which may thereafter
accrue if such change, in the judgment of such Lender, is not otherwise
disadvantageous to such Lender.
(g) Without
prejudice to the survival of any other agreement of the Borrower hereunder, the
agreements and obligations of the Borrower contained in this Section 2.14 shall
survive the repayment of the Loans and other obligations under the Loan
Documents and the termination of the Commitments hereunder.
SECTION
2.15. Interest
Rate Determination.
(a) Upon the
request of the Borrower, each Lender agrees to furnish to the Borrower timely
information sufficient to permit determination of an Alternate Base Rate or
LIBOR Rate, as applicable; provided, however, that such information shall not be
binding upon such Lender in determining any Alternate Base Rate or LIBOR Rate
applicable to any Loan.
(b) Notwithstanding
any other provision of this Agreement, if any Lender shall notify the Borrower
that the adoption of or any change in the interpretation or administration of
any law or regulation makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for such Lender or its LIBOR
Lending Office to perform its obligations hereunder to make LIBOR Rate Loans or
to fund or maintain LIBOR Rate Loans hereunder, (i) the obligation of such
Lender to make, or to Convert Loans into, LIBOR Rate Loans shall be suspended
until such Lender shall notify the Borrower that the circumstances causing such
suspension no longer exist and (ii) the Borrower shall forthwith prepay in full
all LIBOR Rate Loans together with interest thereon, unless (A) the Borrower,
within five Business Days of notice from such Lender, Converts any LIBOR Rate
Loans then outstanding into Loans of another Type in accordance with Section
2.16 or (B) the applicable Lender notifies the Borrower that the circumstances
causing such suspension and prepayment no longer exist. Each Lender shall use
its best efforts (consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its LIBOR Lending Office if the
making of such change would avoid or eliminate such illegality and would not, in
the judgment of such Lender, be otherwise disadvantageous to such
Lender.
(c) If the
Agent determines in connection with any request for a LIBOR Rate Loan or a
Conversion into a LIBOR Rate Loan that (i) dollar deposits are not being offered
to banks in the London interbank market for the applicable amount and Interest
Period of such LIBOR Rate Loan, (ii) adequate and reasonable means do not exist
for determining the LIBOR Rate for such LIBOR Rate Loan, or (iii) the LIBOR Rate
for such LIBOR Rate Loan does not adequately and fairly reflect the cost to the
Lenders of funding such LIBOR Rate Loan, the Agent will promptly notify the
Borrower and all the Lenders. Thereafter, the obligation of the Lenders to make
or maintain LIBOR Rate Loans shall be suspended until the Agent revokes such
notice. Upon receipt of such notice, the Borrower may revoke any pending Notice
of Borrowing of LIBOR Rate Loans or Notice of Conversion into a LIBOR Rate Loan,
or failing that, will be deemed to have converted such notice into a Notice of
Borrowing of Alternate Base Rate Loans in the amount specified
therein.
SECTION
2.16. Conversion
of Loans.
(a) The
Borrower may on any Business Day (in the case of Loans other than LIBOR Rate
Loans) and on any LIBOR Business Day (in the case of LIBOR Rate Loans), upon
notice given to the Lender not later than 12:00 noon (Charlotte, North Carolina
time) on the third LIBOR Business Day prior to the date of any proposed
Conversion into LIBOR Rate Loans and on the Business Day prior to the date of
any proposed Conversion into Alternate Base Rate Loans subject to the provisions
of Section 2.15, Convert any Loans of one Type into Loans of another Type or
Types or Loans of the same Type having a new Interest Period; provided that any
Conversion of, or with respect to, any LIBOR Rate Loan into Loans of another
Type or Loans of the same Type having new Interest Periods shall be made on, and
only on, the last day of an Interest Period for such LIBOR Rate Loan, unless the
Borrower shall also reimburse the Lenders in respect thereof pursuant to Section
2.10 on the date of such Conversion; provided further, that no Loan shall be
converted to a LIBOR Rate Loan if any Event of Default shall have occurred and
be continuing. Each such notice of a Conversion (a “Notice
of Conversion”) shall
be in substantially the form of Exhibit
D-2 hereto,
within the restrictions specified above, specifying therein (i) the date of such
Conversion, (ii) the Loans to be Converted and (iii) if such Conversion is into,
or with respect to LIBOR Rate Loans, the duration of the Interest Period for
each such Loan.
(b) If the
Borrower shall fail to select the Type of any Loan or the duration of any
Interest Period for any LIBOR Rate Loan in accordance with the provisions
contained in the definition of “Interest
Period” in
Section 1.01 and subsection (a) of this Section 2.16 or if any proposed
Conversion of a Loan to a LIBOR Rate Loan upon Conversion shall not occur as a
result of the circumstances described in subsection (b) of Section 2.15 or
subsection (c) of this Section 2.16, such Loan will automatically, on the last
day of the then-existing Interest Period therefor, Convert into an Alternate
Base Rate Loan.
(c) Each
Notice of Conversion given pursuant to subsection (a) of this Section 2.16 shall
be irrevocable and binding on the Borrower. In the case of any Loan that is to
be converted to a LIBOR Rate Loan, the Borrower shall indemnify the Lenders
against any loss, cost or expense incurred by the Lenders as a result of any
failure to fulfill on the date specified for such Conversion the applicable
conditions set forth in Article III, including, without limitation, any loss,
cost or expense incurred by reason of the liquidation or redeployment of
deposits or other funds acquired by the Lenders to fund such LIBOR Rate Loan, as
the case may be, upon such Conversion, when such Conversion, as a result of such
failure, does not occur. The Borrower’s obligations under this subsection (c)
shall survive the repayment of all other amounts owing to the Lenders under this
Agreement and the Notes and the termination of the Commitment.
(d) No more
than six LIBOR Rate Loans may be outstanding at any time.
SECTION
2.17. Set-off.
(a) In
addition to any rights now or hereafter granted under applicable law or
otherwise, and not by way of limitation of any such rights, upon the occurrence
of an Event of Default and the commencement of remedies described in Section
6.01, each Lender is authorized at any time and from time to time, without
presentment, demand, protest or other notice of any kind (all of which rights
being hereby expressly waived), to set-off and to appropriate and apply any and
all deposits (general or special) and any other indebtedness at any time held or
owing by such Lender (including, without limitation, branches, agencies or
Affiliates of such Lender wherever located) to or for the credit or the account
of the Borrower against obligations and liabilities of the Borrower then due and
payable to the Lenders hereunder, under the Notes or the other Loan Documents,
irrespective of whether the Agent or the Lenders shall have made any demand
hereunder and although such obligations, liabilities or claims, or any of them,
may be contingent or unmatured, and any such set-off shall be deemed to have
been made immediately upon the occurrence of an Event of Default and the
commencement of remedies described in Section 6.01, even though such charge is
made or entered on the books of such Lender subsequent thereto.
(b) In
addition to clause (a) above, with respect to any principal or interest payment,
fee or any other cost or expense (including legal fees and expenses), due and
payable to the Agent or the Lenders under the Loan Documents, the Borrower
hereby irrevocably authorizes and directs the Agent to debit any deposit account
of the Borrower with the Agent (as one of the Lenders) in an amount such that
the aggregate amount debited from all such deposit accounts does not exceed such
payment, fee or other cost or expense. If there are insufficient funds in such
deposit accounts to cover the amount of the payment, fee or other cost or
expense then due, such debits will be reversed (in whole or in part, in the
Agent's sole discretion) and such amount not debited shall be deemed to be
unpaid.
SECTION
2.18. Pro
Rata Treatment.
Except to
the extent otherwise provided herein:
(a) Loans. Each
Loan, each payment or prepayment of principal of any Loan, and each payment of
interest on the Loans shall be allocated pro rata among the Lenders in
accordance with the respective principal amounts of their outstanding Loans.
Each payment of the Facility Fee and Utilization Fee, each reduction of the
Commitments and each conversion or extension of any Loan shall be allocated pro
rata among the Lenders in accordance with the respective principal amounts of
their outstanding Loans and Participation Interests.
(b) Advances. Unless
the Agent shall have been notified in writing by any Lender prior to a borrowing
that such Lender will not make the amount that would constitute its ratable
share of such borrowing available to the Agent, the Agent may assume that such
Lender is making such amount available to the Agent, and the Agent may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. If such amount is not made available to the Agent by such Lender within
the time period specified therefor hereunder, such Lender shall pay to the
Agent, on demand, such amount with interest thereon, for the period until such
Lender makes such amount immediately available to the Agent, at a rate equal to
the Federal Funds Rate; provided,
however, that if
payment is not made within three Business Days of demand, interest shall accrue
at the rate applicable at that time to the Loans made in connection with such
Borrowing. If such Lender’s pro rata share of such Borrowing is not made
available to the Agent by such Lender within three Business Days of the date of
such Borrowing, the Agent also shall be entitled to recover from the Borrower,
on demand, such amount with interest thereon, for the period until the Borrower
makes such repayment amount immediately available to the Agent, at the rate
applicable at that time to the Loans made in connection with such Borrowing. A
certificate of the Agent submitted to any Lender or the Borrower with respect to
any amounts owing under this subsection shall be conclusive in the absence of
manifest error.
SECTION
2.19. Sharing
of Payments.
The
Lenders agree among themselves that, in the event that any Lender shall obtain
payment in respect of any Loan or any other obligation owing to such Lender
under this Agreement through the exercise of a right of setoff, banker’s lien or
counterclaim, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, in excess
of its pro rata share of such payment as provided for in this Agreement, such
Lender shall promptly purchase from the other Lenders a participation interest
(a “Participation
Interest”) in
such Loans and other obligations in such amounts, and make such other
adjustments from time to time, as shall be equitable to the end that all Lenders
share such payment in accordance with their respective ratable shares as
provided for in this Agreement. The Lenders further agree among themselves that
if payment to a Lender obtained by such Lender through the exercise of a right
of setoff, banker’s lien, counterclaim or other event as aforesaid shall be
rescinded or must otherwise be restored, each Lender which shall have shared the
benefit of such payment shall, by repurchase of a Participation Interest
theretofore sold, return its share of that benefit (together with its share of
any accrued interest payable with respect thereto) to each Lender whose payment
shall have been rescinded or otherwise restored. The Borrower agrees that any
Lender so purchasing such a Participation Interest may, to the fullest extent
permitted by law, exercise all rights of payment, including setoff, banker’s
lien or counterclaim, with respect to such Participation Interest as fully as if
such Lender were a holder of such Loan or other obligation in the amount of such
Participation Interest. Except as otherwise expressly provided in this
Agreement, if any Lender or the Agent shall fail to remit to the Agent or any
other Lender an amount payable by such Lender or the Agent to the Agent or such
other Lender pursuant to this Agreement on the date when such amount is due,
such payments shall be made together with interest thereon for each day from the
date such amount is due until the date such amount is paid to the Agent or such
other Lender at a rate per annum equal to the Federal Funds Rate. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section 2.19 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 under this
Section 2.19 to share in the benefits of any recovery on such secured
claim.
ARTICLE
III
CONDITIONS
TO BORROWINGS
SECTION
3.01. Conditions
to Closing.
The
effectiveness of this Agreement is subject to the satisfaction of the following
conditions:
The Agent
shall have received the following, each dated as of the Closing Date (unless
otherwise indicated), and each in form and substance satisfactory to the
Agent:
(a) receipt
of an executed counterpart of this Agreement;
(b) if
requested by any Lender, receipt of a duly executed Note for such
Lender;
(c) receipt
of opinions of (i) XxXxxx Law Firm, P.A., counsel for the Borrower and (ii) the
General Counsel or an Assistant General Counsel to the Borrower, substantially
in the forms of Exhibit
B-1 and B-2, hereto,
respectively, and covering such additional matters relating to the transactions
contemplated hereby as the Lenders may reasonably request;
(d) receipt
of a certificate signed by a principal financial or accounting officer of the
Borrower, to the effect that (i) no Default or Event of Default has occurred and
is continuing as of the Closing Date, (ii) since December 31, 2004, there has
been no change or changes in the business, assets, liabilities, operations,
condition (financial or otherwise) or prospects of the Borrower and its
subsidiaries, taken as a whole, or in the facts and information regarding such
entities which alone, or in the aggregate, could reasonably be expected to have
a Material Adverse Effect and (iii) the representations and warranties of the
Borrower contained in Article IV hereof are true in all material respects as of
the date hereof;
(e) receipt
of all documents which the Agent and the Lenders may reasonably request relating
to the existence of the Borrower, the corporate authority for and the validity
of this Agreement and the other Loan Documents and any other matters relevant
hereto, all in form and substance satisfactory to the Agent and the Lenders,
including without limitation a certificate of incumbency of the Borrower, signed
by the Secretary or an Assistant Secretary of the Borrower, certifying as to the
names, true signatures and incumbency of the officer or officers of the Borrower
authorized to execute and deliver the Loan Documents to which the Borrower is a
party and certified copies of the following items: (i) the Borrower’s Articles
of Incorporation, (ii) the Borrower’s By-laws, (iii) a certificate of the
Secretary of State of the State of South Carolina as to the existence of the
Borrower as a South Carolina corporation, (iv) a certificate of the Secretary of
State of the State of North Carolina as to the good standing of the Borrower in
North Carolina, and (v) the action taken by the Board of Directors of the
Borrower authorizing the Borrower’s execution, delivery and performance of this
Agreement, the Notes and the other Loan Documents to which the Borrower is a
party;
(f) receipt
by the Agent of evidence that the Borrower shall have irrevocably terminated all
commitments and indefeasibly paid in full all amounts due under the Existing
Credit Agreement;
(g) receipt
by the Agent (for its own account and the account of the Lenders, as applicable)
of all fees required to be received in connection with this Agreement on or
before such Closing Date; and
(h) receipt
of such other documents as the Agent and the Lenders may reasonably
request.
SECTION
3.02. Conditions
to All Borrowings.
The
obligation of the Lenders to make Loans on the occasion of each Borrowing is
subject to the satisfaction of the following conditions:
(a) receipt
of a Notice of Borrowing;
(b) the fact
that, immediately prior to and immediately after such Borrowing, no Default or
Event of Default under this Agreement shall have occurred and be
continuing;
(c) the fact
that the representations and warranties of the Borrower contained in Article IV
of this Agreement (other than with respect to Section 4.04(b) and Section 4.05)
shall be true in all material respects as if made on and as of the date of such
Borrowing;
(d) the fact
that, immediately after such Borrowing the aggregate outstanding principal
amount of the Loans will not exceed the aggregate amount of the Commitments;
and
(e) the
conditions to the continued effectiveness of the authorizations in the SEC Order
and the NCUC Order are satisfied.
Each
Borrowing hereunder shall be deemed to be a representation and warranty by the
Borrower on the date of such Borrowing as to the facts specified in clauses (b),
(c), (d) and (e) of this Section.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
The
Borrower represents and warrants that:
SECTION
4.01. Corporate
Existence and Power.
The
Borrower is a corporation duly organized and validly existing under the laws of
the State of South Carolina, is duly qualified to transact business in North
Carolina and every other jurisdiction where, by the nature of its business, such
qualification is necessary, and has all corporate powers and all governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted, except where the failure to be so qualified or to
have such licenses, authorizations, consents and approvals could not reasonably
be expected to have a Material Adverse Effect.
SECTION
4.02. Corporate
and Governmental Authorization; Contravention.
The
execution, delivery and performance by the Borrower of this Agreement, the Notes
and the other Loan Documents to which the Borrower is a party (i) are within the
Borrower’s corporate powers, (ii) have been duly authorized by all necessary
corporate action, (iii) require no action by or in respect of, or filing with,
any governmental body, agency or official, except for (1) such authorizations as
may be required from the SEC, which as set forth in the SEC Order have been
obtained through April 15, 2006 and such other authorizations as may be required
by the SEC after April 15, 2006 which shall be obtained prior to such date and
(2) the notice filings required under PUHCA, all of which filings will be made
within the time periods required; (3) such authorizations as may be required
from the NCUC, which as set forth in the NCUC Order have been obtained and (4)
such filings as may be required to be made with the NCUC pursuant to the NCUC
Order, all of which filings will be made within the time periods required, (iv)
do not contravene or constitute a default under any provision of applicable law
or regulation or of the Articles of Incorporation or By-laws of the Borrower or
of any material agreement, judgment, injunction, order, decree or other
instrument binding upon the Borrower and (v) do not result in the creation or
imposition of any Lien on any asset of the Borrower (other than Liens created
under this Agreement, if any).
SECTION
4.03. Binding
Effect.
This
Agreement constitutes a valid and binding agreement of the Borrower enforceable
in accordance with its terms and the Notes and the other Loan Documents to which
the Borrower is a party, when executed and delivered in accordance with this
Agreement, will constitute valid and binding obligations of the Borrower
enforceable in accordance with their respective terms; provided that (a) the
enforceability hereof and thereof may be affected by bankruptcy, insolvency,
reorganization, moratorium or similar laws applicable to creditors’ rights or
the collection of debtors’ obligations generally and (b) the availability of
remedies may be limited by equitable principles of general applicability.
SECTION
4.04. Financial
Information.
(a) The
consolidated balance sheet of the Borrower, as of December 31, 2004, and the
related consolidated statements of income and cash flows for the Fiscal Year
then ended, reported on by Deloitte & Touche, LLP, copies of which have been
delivered to the Lenders, and the unaudited condensed consolidated financial
statements of the Borrower, for the interim period ended March 31, 2005, copies
of which have been delivered to the Lenders, fairly present, in conformity with
GAAP, the consolidated financial position of the Borrower, as of such dates, and
of its consolidated results of operations and cash flows, except that the
interim financial statements are subject to customary year-end adjustments and
have fewer footnotes than annual statements.
(b) Since
December 31, 2004, there has been no change in the business, financial position,
results of operations or prospects of the Borrower which, alone or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect.
(c) The
Borrower has no material liabilities other than as set forth in the most recent
financial statements provided to the Agent and the Lenders pursuant to Section
4.04(a) or 5.01(a) and (b) hereof.
SECTION
4.05. Litigation.
Other
than as disclosed in the Disclosure Documents, there are no actions, suits or
proceedings (including, without limitation, any Environmental Proceedings)
pending against or affecting the Borrower before any court or arbitrator or any
governmental body, agency or official which individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect (collectively,
the actions, suits and proceedings set forth in the Disclosure Documents are
referred to herein as the “Material Litigation”). As of the applicable date of
filing, based upon the Borrower’s and its Subsidiaries’ knowledge of the
relevant facts and circumstances at the time of the filing, the facts set forth
in the Disclosure Documents regarding the Material Litigation were true and
correct in all material respects. The Borrower does not believe that (a) the
resolution of any litigation listed in Schedule 4.05 could reasonably be
expected to have a Material Adverse Effect or (b) the resolution of any
litigation set forth in the Disclosure Documents could reasonably be expected to
materially adversely affect the ability of the Borrower to perform its
obligations under the Loan Documents. Notwithstanding anything in this Section
4.05 to the contrary, any reference in the Disclosure Documents to various other
claims and litigation that are not specifically described therein are not
excepted from the representation given in this Section 4.05.
SECTION
4.06. Compliance
with ERISA.
Except as
could not reasonably be expected to have a Material Adverse Effect:
(a) During
the five-year period prior to the date on which this representation is made or
deemed made: (i) no Termination Event has occurred, and, to the best knowledge
of the Borrower, no event or condition has occurred or exists as a result of
which any Termination Event would be reasonably expected to occur; (ii) no
“accumulated funding deficiency,” as such term is defined in Section 302 of
ERISA and Section 412 of the Code, whether or not waived, has occurred with
respect to any Single Employer Plan; (iii) each Plan has been maintained,
operated, and funded in compliance with its own terms and in material compliance
with the provisions of ERISA, the Code, and any other applicable federal or
state laws; and (iv) no Lien in favor of the PBGC or a Plan has arisen or is
reasonably likely to arise on account of any Plan.
(b) The
actuarial present value of all “benefit liabilities” under each Single Employer
Plan (determined within the meaning of Section 401(a)(2) of the Code, utilizing
the actuarial assumptions used to fund such Plans), whether or not vested, did
not, as of the last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the current value of the assets of
such Plan allocable to such accrued liabilities, except as disclosed in the
Borrower’s financial statements.
(c) Neither
the Borrower nor any ERISA Affiliate has incurred, or, to the best knowledge of
the Borrower, is reasonably expected to incur, any withdrawal liability under
ERISA to any Multi-employer Plan or Multiple Employer Plan. Neither the Borrower
nor any ERISA Affiliate has received any notification that any Multi-employer
Plan is in reorganization (within the meaning of Section 4241 of ERISA), is
insolvent (within the meaning of Section 4245 of ERISA), or has been terminated
(within the meaning of Title IV of ERISA), and no Multi-employer Plan is, to the
best knowledge of the Borrower, reasonably expected to be in reorganization,
insolvent or terminated.
(d) No
prohibited transaction (within the meaning of Section 406 of ERISA or Section
4975 of the Code) or breach of fiduciary responsibility has occurred with
respect to a Plan which has subjected or would be reasonably likely to subject
the Borrower or any ERISA Affiliate to any liability under Sections 406, 409,
502(i), or 502(l) of ERISA or Section 4975 of the Code, or under any agreement
or other instrument pursuant to which the Borrower or any ERISA Affiliate has
agreed or is required to indemnify any person against any such
liability.
(e) The
present value (determined using actuarial and other assumptions which are
reasonable with respect to the benefits provided and the employees
participating) of the liability of the Borrower and each ERISA Affiliate for
post-retirement welfare benefits to be provided to their current and former
employees under Plans which are welfare benefit plans (as defined in Section
3(1) of ERISA), net of all assets under all such Plans allocable to such
benefits, are reflected on the financial statements referenced in Sections 4.04
and 5.01 in accordance with FASB 106.
(f) Each Plan
which is a welfare plan (as defined in Section 3(1) of ERISA) to which Sections
601-609 of ERISA and Section 4980B of the Code apply has been administered in
compliance in all material respects with such sections.
SECTION
4.07. Taxes.
There
have been filed on behalf of the Borrower all material federal, state and local
income, excise, property and other tax returns which are required to be filed by
the Borrower except where the failure to file would not reasonably be expected
to have a Material Adverse Effect. The Borrower has paid or will pay when due
all taxes, assessments, governmental charges, claims except (x) liabilities
being contested in good faith by appropriate proceedings diligently pursued and
against which, if requested by the Required Lenders through the Agent, the
Borrower shall have set up reserves satisfactory to the Required Lenders or (y)
where nonpayment could not reasonably be expected to have a Material Adverse
Effect. The charges, accruals and reserves on the books of the Borrower in
respect of taxes or other governmental charges are, in the opinion of the
Borrower, adequate. United States income tax returns of the Borrower have been
closed through February 10, 2000.
SECTION
4.08. Ownership
of Common Stock.
All of
the issued and outstanding shares of Common Stock of the Borrower are owned by
SCANA.
SECTION
4.09. Not
an Investment Company; Public Utility Holding Company
Subsidiary.
The
Borrower is not an “investment company” within the meaning of the Investment
Company Act of 1940, as amended. The Borrower is a “subsidiary” of a “registered
holding company” within the meaning of PUHCA. Each of (a) the issuance by the
Borrower of the Notes pursuant to this Agreement, (b) the incurrence by the
Borrower of the Debt contemplated by this Agreement and (c) the borrowing,
repayment and reborrowing of Loans permitted hereunder is permitted by PUHCA to
the extent set forth in, and subject to continued satisfaction of the conditions
in, the SEC Order and requires no authorization or approval of any federal,
state, local or foreign court or governmental agency, authority, instrumentality
or regulatory body, other than such authorizations and approvals as have already
been obtained under the SEC Order and the NCUC Order, the filings required under
the SEC Order or the NCUC Order and the approval of the SEC of the issuance of
additional debt after the date set forth in Section 4.02.
SECTION
4.10. Ownership
of Property; Liens.
The
Borrower has title to its properties sufficient for the conduct of its business,
and none of such property is subject to any Lien except as permitted in Section
5.05 or created by this Agreement, if any.
SECTION
4.11. No
Default.
The
Borrower is not in default under or with respect to any agreement, instrument or
undertaking to which it is a party or by which it or any of its property is
bound which could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
SECTION
4.12. Full
Disclosure.
All
information heretofore furnished by the Borrower to the Agent and the Lenders
for purposes of or in connection with this Agreement or any transaction
contemplated hereby is, and all such information hereafter furnished by the
Borrower to the Agent and the Lenders will be, as of the date furnished, for the
purposes for which such information is given and read together with all other
previously provided information, true, accurate and complete in every material
respect or based on reasonable estimates on the date as of which such
information is stated or certified. The Borrower has disclosed to the Agent and
the Lenders in writing any and all facts which, alone or in the aggregate, could
reasonably be expected to have a Material Adverse Effect (to the extent the
Borrower can now reasonably foresee).
SECTION
4.13. Environmental
Matters.
(a) Other
than as disclosed in the Disclosure Documents, the Borrower is not subject to
any Environmental Liability which individually or in the aggregate is likely to
have a Material Adverse Effect and the Borrower has not been designated as a
potentially responsible party under CERCLA or under any state statute similar to
CERCLA with respect to any matter or matters which, individually or in the
aggregate, are likely to have a Material Adverse Effect. Other than as disclosed
in the Disclosure Documents, none of the Properties have been identified on any
current or proposed (i) National Priorities List under 40 C.F.R. § 300, (ii)
CERCLIS list or (iii) any list arising from a state statute similar to CERCLA
relating to any matter or matters which, individually or in the aggregate, are
likely to have a Material Adverse Effect.
(b) Other
than as disclosed in the Disclosure Documents, no Hazardous Materials have been
or are being used, produced, manufactured, processed, generated, stored,
disposed of, managed at, or shipped or transported to or from the Properties or
are otherwise present at, on, in or under the Properties except for (i)
Hazardous Materials used, produced, manufactured, processed, generated, stored,
disposed of and managed in the ordinary course of business in material
compliance with all applicable Environmental Requirements or (ii) other
Hazardous Materials the unlawful handling, discharge or disposal of which could
not reasonably be expected to have a Material Adverse Effect.
SECTION
4.14. Compliance
with Laws.
The
Borrower is in compliance with all applicable laws, regulations and similar
requirements of governmental authorities, except where the failure to be in
compliance, alone or in the aggregate, could not reasonably be expected to have
a Material Adverse Effect.
SECTION
4.15. Margin
Stock.
The
Borrower will not apply the proceeds of any of the Loans, directly or
indirectly, for the purpose, whether immediate, incidental or ultimate, of
purchasing or carrying any Margin Stock.
SECTION
4.16. Purpose
of Loans.
The Loans
will be used for general corporate purposes including, without limitation,
commercial paper backup.
SECTION
4.17. Solvency.
The
Borrower is, and after the consummation of the transactions contemplated by this
Agreement will be, Solvent.
SECTION
4.18. Insurance.
The
Borrower maintains with financially sound and reputable insurance companies or
through self-insurance, insurance in at least such amounts with such deductibles
or self-insurance retentions and against at least such risks (including on all
of its Properties, general liability and worker’s compensation) as are usually
insured against in the same general area by companies of established repute
engaged in the same or similar business as the Borrower.
SECTION
4.19. Labor
Matters.
Except as
could not reasonably be expected to have, alone or in the aggregate, a Material
Adverse Effect:
(a) there are
no strikes or lockouts against the Borrower pending or, to the knowledge of the
Borrower, threatened;
(b) the hours
worked by and payments made to employees of the Borrower have not been in
violation of the Fair Labor Standards Act or any other applicable federal,
state, local or foreign law dealing with such matters; and
(c) all
payments due from the Borrower, or for which any claim may be made against the
Borrower, on account of wages and employee, health and welfare insurance and
other benefits (attributable to any employee benefit plan (as defined in Section
3 of ERISA) or otherwise), have been paid or accrued as a liability on the books
of the Borrower.
SECTION
4.20. Amendments
to Organizational Documents.
Neither
the articles of incorporation nor bylaws of the Borrower have been amended,
modified or changed since the Closing Date in any manner which could be
reasonably expected to materially adversely affect the rights of the
Lenders.
ARTICLE
V
COVENANTS
The
Borrower agrees that, so long as the Commitments hereunder shall remain
outstanding or any amount payable under this Agreement remains
unpaid:
SECTION
5.01. Information.
The
Borrower will deliver to the Agent, on
behalf of the Lenders, and the Agent
will promptly distribute to each Lender, which
distribution may be via acceptable electronic means, copies
of the following financial statements, reports, notices and
information:
(a) as soon
as available and in any event within 120 days after the end of each Fiscal Year,
a consolidated balance sheet of the Borrower as of the end of such Fiscal Year
and the related consolidated statements of income or operations and cash flows
for such Fiscal Year, setting forth in each case in comparative form the figures
for the previous Fiscal Year, all reported on by Deloitte & Touche LLP or
other independent public accountants of nationally recognized standing, with
such report to be free of exceptions and qualifications not reasonably
acceptable to the Agent and the Lenders. The delivery by electronic mail or
other form of electronic distribution reasonably satisfactory to the Agent of a
Form 10-K as filed with the SEC within 120 days after the end of such Fiscal
Year shall be deemed to satisfy the requirements contained in this Section
5.01(a);
(b) as soon
as available and in any event within 90 days after the end of each Fiscal
Quarter (other than the last Fiscal Quarter of each Fiscal Year), a condensed
consolidated balance sheet of the Borrower as of the end of such Fiscal Quarter
and the related condensed consolidated statement of income or operations for
such Fiscal Quarter and for the portion of the Fiscal Year ended at the end of
such Fiscal Quarter, setting forth in each case in comparative form the figures
for the corresponding Fiscal Quarter and the corresponding portion of the
previous Fiscal Year, all certified (subject to normal year-end adjustments) as
to fairness of presentation, GAAP (except that such statements contain fewer
footnotes than the annual statements) and consistency (other than changes of
accounting principles recorded in accordance with GAAP) by a Responsible
Officer. The delivery by electronic mail or other form of electronic
distribution reasonably satisfactory to the Agent of a Form 10-Q as filed with
the SEC within 90 days after the end of such Fiscal Quarter shall be deemed to
satisfy the requirements contained in this Section 5.01(b);
(c) simultaneously
with the delivery of each set of financial statements referred to in subsections
(a) and (b) of this Section 5.01, a certificate, substantially in the form of
Exhibit
E hereto,
of a Responsible Officer (i) stating whether any Default or Event of Default
exists on the date of such certificate and, if any Default or Event of Default
then exists, setting forth the details thereof and the action which the Borrower
is taking or proposes to take with respect thereto, (ii) setting forth the
amount of Off-Balance Sheet Debt in excess of $5,000,000 in the aggregate of the
Borrower as of the end of such fiscal period, if any, and (iii) demonstrating
compliance with Section 5.19 as of the end of each Fiscal Quarter and setting
forth the computations used by the Borrower in determining such
compliance;
(d) within
five Business Days after the Borrower becomes aware of the occurrence of any
Default or Event of Default, a certificate of a Responsible Officer setting
forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(e) as soon
as possible and in any event within 30 days after (i) the Borrower has been
served with legal process in litigation of such a nature that the Borrower would
be required to disclose such litigation in a Current Report on Form 8-K pursuant
to the Exchange Act or (ii) the receipt of notice of a default by the Borrower
that could reasonably be expected to have a Material Adverse Effect, notice of
such litigation or notice of such default describing the factual basis alleged
to underlie such litigation or asserted in such notice of default and a brief
statement of the Borrower’s proposed actions in connection
therewith;
(f) Upon the
Borrower or any ERISA Affiliate obtaining knowledge thereof, the Borrower will
give written notice to the Agent promptly (and in any event within five Business
Days) of any of the following which would result in or reasonably could be
expected to have a Material Adverse Effect: (i) any event or condition,
including, but not limited to, any Reportable Event that constitutes, or would
be reasonably expected to lead to, a Termination Event; (ii) with respect to any
Multi-employer Plan, the receipt of notice as prescribed in ERISA or otherwise
of any withdrawal liability assessed against the Borrower or any of its ERISA
Affiliates, or of a determination that any Multi-employer Plan is in
reorganization or insolvent (both within the meaning of Title IV of ERISA);
(iii) the failure to make full payment on or before the due date (including
extensions) thereof of all amounts which the Borrower or any of its Subsidiaries
or ERISA Affiliates is required to contribute to each Plan pursuant to its terms
and as required to meet the minimum funding standard set forth in ERISA and the
Code with respect thereto; or (iv) a change in the funding status of any Plan,
in each case together with a description of any such event or condition or a
copy of any such notice and a statement by an officer of the Borrower briefly
setting forth the details regarding such event, condition or notice, and the
action, if any, which has been or is being taken or is proposed to be taken with
respect thereto. Promptly upon request, the Borrower shall furnish the Agent
with such additional information concerning any Plan as may be reasonably
requested, including, but not limited to, copies of each annual report/return
(Form 5500 series), as well as all schedules and attachments thereto required to
be filed with the Department of Labor and/or the Internal Revenue Service
pursuant to ERISA and the Code, respectively, for each “plan year” (within the
meaning of Section 3(39) of ERISA); and
(g) from time
to time such additional information regarding the financial position or business
of the Borrower as the Agent and the Lenders may reasonably
request.
SECTION
5.02. Inspection
of Property, Books and Records.
The
Borrower will (i) keep proper books of record and account in which full, true
and correct entries in accordance with the accounting requirements of the
Federal Energy Regulatory Commission as set forth in its applicable Uniform
System of Accounts and published accounting releases shall be made of all
dealings and transactions in relation to its business and activities and (ii)
permit representatives of the Agent at the Lenders’ expense to visit and inspect
any of its Properties, to examine and make abstracts from any of its books and
records and to discuss its affairs, finances and accounts with its officers,
employees and independent public accountants; provided,
however, that so
long as no Default or Event of Default has occurred and is continuing, an
officer or authorized agent of the Borrower is (at the option of the Borrower)
present during any such discussions with employees or accountants. The Borrower
agrees to cooperate and assist in such visits and inspections, in each case at
such reasonable times and as often as may reasonably be desired.
SECTION
5.03. Loans
or Advances.
The
Borrower shall not make loans or advances to any Person except: (i) loans or
advances to employees, to the extent permitted by applicable law, not exceeding
Two Million Dollars ($2,000,000) in the aggregate outstanding at any given time
made in the ordinary course of business and consistent with practices existing
on the Closing Date, (ii) loans or advances to finance acquisitions of property
or services purchased from the Borrower made in the ordinary course of business,
(iii) loans or advances to fund the operations of any Affiliate which provides
or will provide steam and/or energy to any Person where the aggregate amount of
all such loans and advances does not exceed, at the end of any Fiscal Quarter,
10% of Total Assets, (iv) deposits required by government agencies or public
utilities and (v) advances to the utility money pool in connection with PUHCA
not to exceed an aggregate principal amount of $150,000,000 outstanding at any
one time; provided that after giving effect to the making of any loans, advances
or deposits permitted by clause (i), (ii), (iii), (iv) or (v) of this Section,
no Default or Event of Default shall have occurred and be
continuing.
SECTION
5.04. Investments.
The
Borrower shall not make Investments in any Person except (i) as permitted by
Section 5.03, (ii) Investments which are cash or Cash Equivalents or (iii) that
the Borrower may make Investments in any Subsidiary or Affiliate provided such
Investment is not prohibited by Section 5.18.
SECTION
5.05. Restrictions
on Liens.
The
Borrower shall not incur any Debt secured by any Lien, or suffer to exist any
Lien, upon or with respect to its Properties or assets, whether now owned or
hereafter acquired, without effectively providing that the Loans then
outstanding and thereafter created (together with any other Debt or obligations
then existing and any other indebtedness or obligation thereafter created
ranking equally with the Loans then existing or thereafter created which is not
subordinated to the Loans) shall be secured equally and ratably with (or prior
to) such Debt or obligations so long as such Debt or obligation is so secured,
except that the foregoing provision shall not apply to:
(a) Debt
issued under the Indenture or any renewal, replacement or extension of such
Indenture;
(b) “Secured
Debt” as defined in Section 9.8 of the Indenture;
(c) Liens
encumbering premises, land and interests in land or other property, real,
personal, intangible or mixed, used or to be used in or in connection with the
Borrower’s natural gas utility business;
(d) Liens
consisting of (i) pledges or deposits in the ordinary course of business to
secure obligations under workmen’s compensation laws or similar legislation,
including liens of judgments thereunder which are not currently dischargeable,
(ii) deposits in the ordinary course of business to secure or in lieu of surety,
appeal or customs bonds to which the Borrower is a party, (iii) liens created by
or resulting from any litigation or legal proceeding which is being contested in
good faith by appropriate proceedings diligently conducted, (iv) pledges or
deposits in the ordinary course of business to secure performance in connection
with bids, tenders or contracts (other than contracts for the payment of money)
or (v) materialmen’s, mechanics’, carriers’, workmen’s, repairmen’s or other
like Liens incurred in the ordinary course of business for sums not yet due or
currently being contested in good faith by appropriate proceedings diligently
conducted or deposits to obtain the release of such Liens;
(e) Liens
created to secure indebtedness representing, or incurred to finance, the cost of
property available, used, acquired, constructed or improved by the Borrower or
any subsidiary in the ordinary course of business, including under any
Capitalized Lease or Liens existing on such property at the time of acquisition
thereof or attaching to such property within 18 months of the acquisition
thereof;
(f) any Lien
on any asset of any corporation existing at the time such corporation is merged
or consolidated with or into the Borrower and not created in contemplation of
such event;
(g) any Lien
existing on any asset prior to the acquisition thereof by the Borrower and not
created in contemplation of such acquisition;
(h) Liens
incidental to the conduct of its business or the ownership of its assets which
(i) do not secure Debt 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) any Lien
on Margin Stock;
(j) Liens on
property (including any natural gas, oil or other mineral property) to secure
all or a part of the cost of exploration, drilling or development thereof or to
secure Debt incurred to provide funds for any such purpose;
(k) Liens and
security interests created, incurred or assumed in connection with the purchase,
lease, financing or refinancing of pollution control facilities;
(l) Liens
created to secure sales of accounts receivable and other receivables;
(m) Liens
created for the sole purpose of extending, renewing or replacing in whole or in
part Debt secured by any Lien, mortgage or security interest referred to in the
foregoing subsections (a) through (l); provided,
however, that
the principal amount of Debt or obligations secured thereby shall not exceed the
principal amount of Debt or obligations so secured at the time of such
extension, renewal or replacement and that such extension, renewal or
replacement, as the case may be, shall be limited to all or a part of the
property that secured the lien or mortgage so extended, renewed or replaced (and
any improvements on such property); and
(n) Liens on
property, in addition to those otherwise permitted by clauses (a) through (m)
above, securing directly or indirectly, Debt which does not exceed, in the
aggregate at any one time outstanding, $15,000,000.
SECTION
5.06. Maintenance
of Existence.
The
Borrower shall maintain its corporate existence and, except as permitted under
Section 5.08 hereof, carry on its business in substantially the same manner and
in substantially the same fields as such business is now carried on and
maintained.
SECTION
5.07. Dissolution.
The
Borrower shall not suffer or permit dissolution or liquidation either in whole
or in part or redeem or retire any shares of its Common Stock, except through
corporate reorganization to the extent permitted by Section 5.08.
SECTION
5.08. Consolidations,
Mergers and Sales of Assets.
(a) The
Borrower will not consolidate or merge with or into any other Person, or, except
in connection with any conveyance, sale, lease, transfer or disposition
described in clause (b) of this Section, discontinue or eliminate any business
line or segment other than in the ordinary course of business; provided that the
Borrower may merge with another Person if (i) such Person was organized under
the laws of the United States of America or one of its states, (ii) the Borrower
is the corporation surviving such merger and (iii) immediately after giving
effect to such merger, no Default or Event of Default shall have occurred and be
continuing.
(b) Unless
otherwise required by law, during the term of this Agreement, the Borrower will
not in the aggregate, convey, sell, lease, transfer or otherwise dispose of
assets, business or operations with a net book value in excess of 10% of Total
Assets, as calculated as of the end of the most recent Fiscal
Quarter.
SECTION
5.09. Use
of Proceeds.
No
portion of the proceeds of the Loans will be used by the Borrower (i) in
connection with, whether directly or indirectly, any tender offer for, or other
acquisition of, stock of any corporation with a view towards obtaining control
of such other corporation, (ii) directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of purchasing or carrying any Margin Stock or
(iii) for any purpose in violation of any applicable law or regulation. The
proceeds of the Loans will be used solely for the purposes provided in Section
4.16.
SECTION
5.10. Compliance
with Laws; Payment of Taxes.
The
Borrower will comply with all applicable laws (including but not limited to
ERISA and Environmental Requirements), regulations and similar requirements of
governmental authorities (including but not limited to the PBGC), except (a)
where the necessity of such compliance is being contested in good faith through
appropriate proceedings diligently pursued or (b) where the failure to so comply
could not reasonably be expected to have a Material Adverse Effect. The Borrower
will pay when due all taxes, assessments, governmental charges, claims for
labor, supplies, rent and other obligations which, if unpaid, might become a
Lien against the Property of the Borrower except (x) liabilities being contested
in good faith by appropriate proceedings diligently pursued and against which,
if requested by any Lender, the Borrower shall have set up reserves satisfactory
to such Lender or (y) where nonpayment could not reasonably be expected to have
a Material Adverse Effect.
SECTION
5.11. Insurance.
The
Borrower will at all times maintain in full force and effect, with financially
sound and reputable insurance companies or through self-insurance (including
workers’ compensation insurance and general liability insurance) in such
amounts, covering such risks and liabilities and with such deductibles or
self-insurance retentions as are in accordance with normal industry
practice.
SECTION
5.12. Change
in Fiscal Year.
The
Borrower will not change its Fiscal Year from year ending December 31 without
the consent of the Required Lenders unless such change would not be materially
adverse to the interests of the Lenders.
SECTION
5.13. Maintenance
of Property.
The
Borrower shall maintain all of its Properties and assets in good condition,
repair and working order, ordinary wear and tear excepted, in accordance with
standards observed by companies of established repute engaged in the same or
similar business as the Borrower, except where the failure to so maintain its
Properties and assets could not reasonably be expected to have a Material
Adverse Effect.
SECTION
5.14. Environmental
Notices.
The
Borrower shall furnish to the Agent, on behalf of the Lenders prompt written
notice of all Environmental Liabilities, pending, threatened or anticipated
Environmental Proceedings, Environmental Notices, Environmental Judgments and
Orders, and Environmental Releases at, on, in, under or in any way affecting the
Properties or, to the extent the Borrower has actual notice thereof, any
adjacent property, and all facts, events or conditions that could lead to any of
the foregoing; provided that the Borrower shall not be required to give such
notice unless it reasonably believes that any of the foregoing, individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
SECTION
5.15. Environmental
Matters.
The
Borrower will not use, produce, manufacture, process, generate, store, dispose
of, manage at, or ship or transport to or from the Properties any Hazardous
Materials other than as disclosed to the Lenders in writing at or prior to the
Closing Date except for (i) Hazardous Materials used, produced, manufactured,
processed, generated, stored, disposed of or managed in the ordinary course of
business in material compliance with all applicable Environmental Requirements
or (ii) other Hazardous Materials the unlawful handling, discharge or disposal
of which, individually or in the aggregate, could not reasonably expected to
have a Material Adverse Effect.
SECTION
5.16. Environmental
Release.
Upon
becoming aware of the occurrence of an Environmental Release, the Borrower will
promptly investigate the extent of, and take appropriate remedial action in a
timely manner to eliminate, such Environmental Release, whether or not ordered
or otherwise directed to do so by any Environmental Authority.
SECTION
5.17. Additional
Shares of Common Stock.
The
Borrower shall not issue any shares of its Common Stock to any Person other than
SCANA.
SECTION
5.18. No
Significant Subsidiaries.
The
Borrower shall not at any time form, acquire, invest in or otherwise permit to
exist any Significant Subsidiary without the prior written consent of the
Required Lenders.
SECTION
5.19. Debt
to Total Capitalization.
The
Borrower will maintain at all times a ratio of consolidated Debt to consolidated
Total Capitalization of not more than .70 to 1.00.
SECTION
5.20. Transactions
with Affiliates.
Unless
otherwise required by law or regulation (including PUHCA and the rules issued
thereunder), the Borrower shall not enter into, or permit any of its
Subsidiaries to enter into, any transaction with any of its Affiliates unless
such transaction is on terms no less favorable to the Borrower or such
Subsidiary than if the transaction had been negotiated in good faith on an arm’s
length basis with a non-Affiliate.
SECTION
5.21. Maintenance
of Licenses, Permits and Registrations.
The
Borrower shall maintain in effect at all times all licenses and permits from,
and registrations with, any governmental authority or any other Person necessary
for the operation by the Borrower of its business as then conducted, except
where the failure to so maintain such licenses and permits could not reasonably
be expected to have a Material Adverse Effect.
SECTION
5.22. OFAC/PATRIOT
ACT.
The
Borrower shall not permit the
transfer of controlling interest in the Borrower to any Person (or any
beneficial owner of such Person) listed on the specifically Designated Nationals
and Blocked Persons List maintained by the Office of Foreign Asset Control,
Department of the Treasury (“OFAC”),
pursuant to Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001)
and/or any other list of terrorists or terrorist organizations maintained
pursuant to any of the rules and regulations of OFAC or pursuant to any other
applicable Executive Orders, or use the proceeds of any Loans to violate any of
the foreign asset control regulations of OFAC or any enabling statute or
Executive Order relating thereto. The Lenders hereby notify the Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56) (signed into law October 26, 2001) (the “Patriot Act”), they
are required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and
other information that will allow the Lenders to identify the Borrower in
accordance with the Patriot Act.
ARTICLE
VI
DEFAULTS
SECTION
6.01. Events
of Default.
If one or
more of the following events (each an “Event
of Default”) shall
have occurred and be continuing:
(a) the
Borrower shall: (i) default in the payment when due of any principal of any of
the Loans; or (ii) default, and such default shall continue for three Business
Days, in the payment when due of any interest on the Loans or of any fees or
other amounts owing hereunder, under any of the other Loan Documents or in
connection herewith or therewith; or
(b) the
Borrower shall fail to observe or perform any covenant or agreement contained in
Sections 5.01(d), 5.03, 5.04, 5.05, 5.06, 5.07, 5.08, 5.09, 5.17 or 5.19;
or
(c) the
Borrower shall fail to observe or perform any covenant or agreement contained in
this Agreement (other than those covered by subsections (a) or (b) of this
Section 6.01) for 30 days after the earlier to occur of (i) written notice
thereof has been given to the Borrower by the Agent or any Lender or (ii) any
officer of the Borrower otherwise becomes aware of such failure; or
(d) any
representation, warranty, certification or statement made or deemed made by the
Borrower in Article IV of this Agreement or in any certificate, financial
statement or other document delivered pursuant to this Agreement shall prove to
have been incorrect in any material respect when made (or deemed made);
or
(e) the
Borrower shall fail to make any payment in respect of Debt outstanding (other
than the Loans) in an aggregate principal amount (individually or in the
aggregate) in excess of $5,000,000 when due or within an applicable grace
period; or
(f) any event
or condition shall occur (other than in connection with sinking fund or other
purchases or redemptions of the Borrower’s preferred stock or secured Debt
undertaken pursuant to the terms of the governing instruments or at the election
of the Borrower) which results in the acceleration of the maturity of Debt
outstanding in an aggregate principal amount in excess of $5,000,000
(individually or in the aggregate) of the Borrower or the obligation to purchase
such Debt by the Borrower (or its designee) prior to the scheduled maturity
thereof or enables the holders of such Debt or any Person acting on such
holders’ behalf to accelerate the maturity thereof or to require the purchase
thereof by the Borrower (or its designee) prior to the scheduled maturity
thereof, without regard to whether such holders or other Person shall have
exercised or waived their right to do so; or
(g) loss or
failure by the Borrower to obtain or maintain any necessary material public
utility or other material license, permit or authorization; or
(h) the
Borrower shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, or shall
consent to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against it,
or shall make a general assignment for the benefit of creditors, or shall fail
generally, or shall admit in writing its inability, to pay its debts as they
become due, or shall take any corporate action to authorize any of the
foregoing; or
(i) an
involuntary case or other proceeding shall be commenced against the Borrower
seeking liquidation, reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its property and such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of 60 days; or an order for relief shall be entered against the Borrower
under the federal bankruptcy laws as now or hereafter in effect; or
(j) The
occurrence of any of the following events or conditions, if any of the same
would have or would be reasonably expected to have a Material Adverse Effect:
(i) any “accumulated funding deficiency,” as such term is defined in Section 302
of ERISA and Section 412 of the Code, whether or not waived, shall exist with
respect to any Plan, or any lien shall arise on the assets of the Borrower or
any ERISA Affiliate in favor of the PBGC or a Plan; (ii) a Termination Event
shall occur with respect to a Single Employer Plan which is, in the reasonable
opinion of the Agent, likely to result in the termination of such Plan for
purposes of Title IV of ERISA; (iii) a Termination Event shall occur with
respect to a Multi-employer Plan or Multiple Employer Plan which is, in the
reasonable opinion of the Agent, likely to result in (A) the termination of such
Plan for purposes of Title IV of ERISA, or (B) the Borrower or any ERISA
Affiliate incurring any liability in connection with a withdrawal from,
reorganization of (within the meaning of Section 4241 of ERISA), or insolvency
(within the meaning of Section 4245 of ERISA) of such Plan; or (iv) any
prohibited transaction (within the meaning of Section 406 of ERISA or Section
4975 of the Code) or breach of fiduciary responsibility shall occur which would
be reasonably expected to subject the Borrower or any ERISA Affiliate to any
liability under Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of
the Code, or under any agreement or other instrument pursuant to which the
Borrower or any ERISA Affiliate has agreed or is required to indemnify any
person against any such liability; or
(k) one or
more judgments, orders, or decrees shall be entered against the Borrower
involving a liability of $15,000,000 or more, in the aggregate (to the extent
not paid or covered by insurance provided by a carrier who has acknowledged
coverage), and such judgments, orders or decrees (i) shall continue unsatisfied,
undischarged and unstayed for a period ending on the first to occur of (A) the
last day on which such judgment, order or decree becomes final and unappealable
and, where applicable, with the status of a judicial lien or (B) 60 days;
provided that if
such judgment, order or decree provides for periodic payments over time then the
Borrower shall have a grace period of 30 days with respect to each such periodic
payment and (ii) have been the subject of any enforcement proceeding commenced
by any creditor for a period of at least five Business Days; or
(l) a federal
tax lien relating to an amount in excess of $5,000,000 shall be filed against
the Borrower or any of its Subsidiaries under Section 6323 of the Code or a lien
relating to an amount in excess of $5,000,000 of the PBGC shall be filed against
the Borrower or any of its Subsidiaries under Section 4068 of ERISA and in
either case such lien shall remain undischarged for a period of 25 days after
the date of filing; or
(m) all or a
substantial part of the Properties of the Borrower shall be condemned, seized or
appropriated; or
(n) any of
the Loan Documents shall fail to be in full force and effect in any material
respect or the Borrower shall so assert in writing or any of the Loan Documents
shall fail to give the Agent or the Lenders the material rights, powers, liens
and privileges purported to be created thereby; or
(o) SCANA
shall cease to own, directly or indirectly, all of the outstanding Common Stock;
or
(p) failure
by the Borrower or any member of the Controlled Group to comply with all
applicable laws (including, but not limited to ERISA), regulations or similar
requirements of governmental authorities (including but not limited to the PBGC,
the Internal Revenue Service and the United States Department of Labor), except
(i) (A) where the necessity of such compliance is being contested in good faith
through appropriate proceedings diligently pursued or (B) where the failure to
so comply would not have a Material Adverse Effect, and (ii) such failure shall
continue for 30 days after the earlier to occur of (x) written notice thereof
has been given to the Borrower by the Agent at the request of any Lender or (y)
an officer of the Borrower otherwise becomes aware of any such
failure;
then, and
in every such event, the Agent, on behalf of the Lenders may (i) by notice to
the Borrower terminate the Commitments and they shall thereupon terminate and
(ii) by notice to the Borrower declare the Loans (together with accrued interest
thereon) and all other amounts payable hereunder and under the other Loan
Documents to be, and the Loans (together with all accrued interest thereon) and
all other amounts payable hereunder and under the other Loan Documents shall
thereupon become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower; provided that if any Event of Default specified in subsection (h) or
(i) of this Section 6.01 occurs with respect to the Borrower, without any notice
to the Borrower or any other act by the Agent or any Lender, the Commitment
shall thereupon automatically terminate and the Loans (together with accrued
interest thereon) and all other amounts payable hereunder and under the other
Loan Documents shall automatically become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
ARTICLE
VII
MISCELLANEOUS
SECTION
7.01. Notices.
All
notices, requests and other communications to any party hereunder shall be in
writing (including bank wire, facsimile transmission or similar writing) and
shall be given to such party at its address, or telecopy number set forth on
Schedule 1 hereof or such other address or telecopy number as such party may
hereafter specify for the purpose by notice to each other party. Each such
notice, request or other communication shall be effective (i) if given by
telecopier, when such telecopy is transmitted to the telecopy number specified
as provided in this Section and the confirmation of delivery is received, (ii)
if given by mail, 72 hours after such communication is deposited in the mails
with first class postage prepaid, addressed as aforesaid, or (iii) if given by
any other means, when delivered at the address specified as provided in this
Section; provided that Notices of Borrowings to the Agent under Article II shall
not be effective until received.
SECTION
7.02. No
Waivers.
No
failure or delay by the Agent or any Lender in exercising any right, power or
privilege hereunder or under any of the other Loan Documents shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION
7.03. Expenses;
Documentary Taxes; Indemnification.
(a) The
Borrower shall pay (i) all out-of-pocket expenses of the Agent, BOA and the
Arrangers (including reasonable fees and disbursements of one law firm serving
as special counsel for the Agent) in connection with the preparation of this
Agreement and the other Loan Documents, any waiver or consent hereunder or
thereunder or any amendment hereof or thereof or any Default hereunder or
thereunder and (ii) if an Event of Default occurs, all out-of-pocket expenses
incurred by the Agent and each of the Lenders, including reasonable fees and
disbursements of counsel of the Agent and each Lender, in connection with such
Event of Default and collection and other enforcement proceedings resulting
therefrom, including out-of-pocket expenses incurred in enforcing this Agreement
and the other Loan Documents.
(b) The
Borrower shall indemnify the Lenders against any transfer taxes, documentary
taxes, assessments or charges made by any Authority by reason of the execution
and delivery of this Agreement or the other Loan Documents (other than any
Assignment and Acceptance); provided that no Eligible Assignee shall be entitled
to receive any greater payment under this subsection (b) than the related
transferor Lender would have been entitled to receive.
(c) The
Borrower shall indemnify the Agent, each Arranger, each Lender and each
Affiliate thereof and their respective directors, officers, employees and agents
(each such person or entity, an “Indemnified
Person”) from
and hold each of them harmless against any and all losses, liabilities, claims
or damages to which any of them may become subject, insofar as such losses,
liabilities, claims or damages arise out of or result from any use by the
Borrower of the proceeds of any extension of credit by any Lender hereunder or
breach by the Borrower of this Agreement or any other Loan Document or from
investigation, litigation (including, without limitation, any actions taken by
the Agent or such Lender to enforce this Agreement or any of the other Loan
Documents (except, as to any such Indemnified Person, enforcement action brought
by such Indemnified Person, on which the Borrower prevails in a
final non-appealable judgment in favor of the Borrower by a court of competent
jurisdiction)) or other proceeding (including, without limitation, any
threatened investigation or proceeding) relating to the foregoing (and whether
or not such Indemnified Person is a party to any such investigation, litigation
or proceeding) and the Borrower shall reimburse each Indemnified Person upon
demand for any reasonable expenses (including, without limitation, legal fees)
incurred in connection with any such investigation or proceeding; but excluding
any such losses, liabilities, claims, damages or expenses incurred by reason of
the gross negligence or willful misconduct of the Person to be indemnified as
determined by a court of competent jurisdiction. No Indemnified Person shall be
responsible or liable for consequential or punitive damages relating to this
Agreement or any other Loan Documents or arising out of its activities in
connection herewith or therewith (whether before or after the Closing Date). The
agreements in this Section 7.03 shall survive the resignation of the Agent, the
replacement of any Lender, the termination of the Commitments and the repayment,
satisfaction or discharge of all the obligations of the Borrower to the Agent
and the Lenders under this Agreement and the other Loan Documents. All amounts
due under this Section 7.03 shall be payable within ten Business Days after
demand therefor.
SECTION
7.04. Amendments,
Waivers and Consents.
Neither
this Agreement nor any other Loan Document nor any of the terms hereof or
thereof may be amended, changed, waived, discharged or terminated unless such
amendment, change, waiver, discharge or termination is in writing and signed by
the Required Lenders and the Borrower; provided that no such amendment, change,
waiver, discharge or termination shall without the consent of each Lender
affected thereby:
(i) extend
the final maturity of any Loan, or any portion thereof;
(ii) reduce
the rate or extend the time of payment of interest (other than as a result of
waiving the applicability of any post-default increase in interest rates)
thereof or fees hereunder;
(iii) reduce or
waive the principal amount of any Loan;
(iv) increase
the Commitment of a Lender over the amount thereof in effect (it being
understood and agreed that a waiver of any Default or Event of Default or a
mandatory reduction in the Commitments shall not constitute a change in the
terms of any Commitment of any Lender);
(v) release
the Borrower from its obligations under the Loan Documents;
(vi) reduce
any percentage specified in, or otherwise modify, the definition of Required
Lenders;
(vii) consent
to the assignment or transfer by the Borrower of any of its rights and
obligations under (or in respect of) the Loan Documents except as permitted
thereby; or
(viii) amend,
modify or waive any provision of this Section 7.04.
SECTION
7.05. Benefit
of Agreement.
(a) This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto, each Indemnified Person referred to in Section 7.03, and
each of their respective successors and assigns; provided that the Borrower may
not assign or transfer any of its interests and obligations without prior
written consent of each of the Lenders; provided further, that the rights of
each Lender to transfer, assign or grant participations in its rights and/or
obligations hereunder shall be limited as set forth in this Section
7.05;
(b) Each
Lender may assign to one or more Eligible Assignees all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Loans, its Notes and its Commitment); provided,
however,
that
(i) each such
assignment shall be to an Eligible Assignee;
(ii) except in
the case of an assignment to another Lender, an Affiliate of an existing Lender
or any fund that invests in bank loans and is advised or managed by an
investment advisor to an existing Lender or an assignment of all of a Lender’s
rights and obligations under this Agreement, any such partial assignment shall
be in an amount at least equal to $5,000,000 (or, if less, the remaining amount
of the Commitment being assigned by such Lender) or an integral multiple of
$1,000,000 in excess thereof;
(iii) each such
assignment by a Lender of any portion of its Loans shall be accompanied by an
assignment of a constant, and not varying, percentage of all of such Lender’s
Loans, and each such assignment by a Lender of any portion of its Commitment
shall be accompanied by an assignment of a constant, and not varying, percentage
of all of such Lender’s Commitment; and
(iv) the
parties to such assignment shall execute and deliver to the Agent for its
acceptance an Assignment and Acceptance, together with any Note subject to such
assignment and a processing fee of $4,000.
Upon
execution, delivery and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Agreement arising after
the effective date of such Assignment and Acceptance. Upon the consummation of
any assignment pursuant to this Section 7.05, the assignor, the Agent and the
Borrower shall make appropriate arrangements so that, if required, new Notes are
issued to the assignor and the assignee. If the assignee is not a United States
person under Section 7701(a)(30) of the Code, it shall deliver to the Borrower
and the Agent certification as to exemption from deduction or withholding of
Taxes in accordance with Section 2.14.
(c) The Agent
shall maintain at its address referred to in Section 7.01 a copy of each
Assignment and Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Loans owing to, each Lender from time to time (the
“Register”). The
entries in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice. Any assignment of any Loan or other obligations shall
be effective only upon an entry with respect thereto being made in the
Register.
(d) Upon its
receipt of an Assignment and Acceptance executed by the parties thereto,
together with any Note subject to such assignment and payment of the processing
fee, the Agent shall, if such Assignment and Acceptance has been completed and
is in substantially the form of Exhibit
C hereto,
(i) accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the parties
thereto.
(e) Each
Lender may sell participations to one or more Persons (each a “Participant”) in all
or a portion of its rights and/or obligations under this Agreement (including
all or a portion of its Commitment or its Loans); provided,
however, that
(i) such Lender’s obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the Participant shall be entitled to the
benefit of the yield protection provisions, and the right of set-off contained
in Section 2.17, and (iv) the Borrower shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement, and such Lender shall retain the sole right to
enforce the obligations of the Borrower hereunder owing to such Lender and to
approve any amendment, modification or waiver of any provision of this Agreement
(other than amendments, modifications or waivers decreasing the amount of
principal of or the rate at which interest is payable on such Loans or Notes,
extending any scheduled principal payment date or date fixed for the payment of
interest on such Loans or Notes or extending its Commitment).
(f) Notwithstanding
any other provision set forth in this Agreement, any Lender may at any time
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 and any Operating
Circular issued by such Federal Reserve Bank. No such assignment shall release
the assigning Lender from its obligations hereunder.
(g) Any
Lender may furnish any information concerning the Borrower in the possession of
such Lender from time to time to assignees and Participants (including
prospective assignees and Participants), subject, however, to the provisions of
Section 7.06 hereof.
(h) Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting
Bank”) may
grant to a special purpose funding vehicle (a “SPC”),
identified as such in writing from time to time by the Granting Bank and
approved by the Agent and the Borrower, the option to provide to the Borrower
all or any part of any Loan advance that such Granting Bank would otherwise be
obligated to make to the Borrower pursuant to this Agreement; provided that (i)
nothing herein shall constitute a commitment by any SPC to make any Loan
advance, and (ii) if an SPC elects not to exercise such option or otherwise
fails to provide all or any part of such Loan advance, the Granting Bank shall
be obligated to make such Loan advance in full pursuant to the terms hereof. The
making of a Loan advance by an SPC hereunder shall utilize the Commitment of the
Granting Bank to the same extent, and as if, such Loan advance were made by such
Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for
any indemnity or similar payment obligation under this Agreement (all liability
for which shall remain solely with the Granting Bank to the full extent of the
Commitments hereunder). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior indebtedness of any SPC, it
will not institute against, or join any other person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any state thereof. In
addition, notwithstanding anything to the contrary contained in this Section
7.05 any SPC may (i) with notice to, but without the prior written consent of,
the Borrower and the Agent and without payment of any processing fee therefor,
assign all or a portion of its interests in any Loan advances to the Granting
Bank or to any financial institutions (consented to by the Borrower and the
Agent) providing liquidity and/or credit support to or for the account of such
SPC to support the funding or maintenance of Loan advances and (ii) disclose on
a confidential basis any non-public information relating to its Loan advances to
any rating agency, commercial paper dealer or provider of any surety, guarantee
or credit or liquidity enhancement to such SPC. This section may not be amended
without the written consent of each SPC unless the Lenders confirm that no such
SPCs exist.
SECTION
7.06. Confidentiality.
Each
Lending Party agrees to keep confidential any information furnished or made
available to it by or on behalf of the Borrower pursuant to this Agreement;
provided that nothing herein shall prevent any Lending Party from disclosing
such information (a) to any other Lending Party or any Affiliate of any Lending
Party, or any officer, director, employee, agent or advisor of any Lending Party
or any Affiliate of any Lending Party (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such information and instructed to keep such
information confidential), (b) to
any other Person if reasonably incidental to the administration of this
Agreement or the other Loan Documents (it being understood that the Persons to
whom such disclosure is made will be informed of the confidential nature of such
information and instructed to keep such information confidential), (c) as
required by any law, rule or regulation or by any subpoena or similar legal
proceeding, (d) upon the order of any court or administrative agency, (e) upon
the request or demand of any regulatory agency or authority, (f) that is or
becomes available to the public or that is or becomes available to any Lending
Party other than as a result of a disclosure by any Lending Party prohibited by
this Agreement, (g) in connection with any litigation to which such Lending
Party or any of its Affiliates may be a party; provided that if permitted by
applicable law or regulation, the Borrower is given notice prior to such
disclosure and is given an opportunity to obtain a protective order, (h) to the
extent necessary in connection with the exercise of any remedy under this
Agreement or any other Loan Document, (i) to the National Association of
Insurance Commissioners or any successor organization or any nationally
recognized rating agency that requires access to information about a Lender’s
investment portfolio in connection with ratings issued with respect to such
Lender, (j) to any direct or indirect contractual counterparty in swap
agreements or such contractual counterparty’s professional advisor (so long as
such contractual counterparty or professional advisor to such contractual
counterparty (i) has been approved in writing by the Borrower and (ii) agrees in
a writing enforceable by the Borrower to be bound by the provisions of this
Section 7.06) and (k) subject to provisions substantially similar to those
contained in this Section 7.06, to any actual or proposed Participant or
assignee. The agreements in this Section 7.06 shall survive any assignments
pursuant to Sections 7.05(b) and 8.09 hereof; provided,
however, that
the obligations of a Lender Party under this Section 7.06 shall terminate upon
the first anniversary of the date of the repayment of the Loans and other
obligations under the Loan Documents and the termination of the Commitments
hereunder.
SECTION
7.07. Representation
by the Lender.
Each
Lender hereby represents that it is a commercial lender or financial institution
which makes loans in the ordinary course of its business and that it will make
its Loans hereunder for its own account in the ordinary course of such business;
provided that, subject to Section 7.05 of this Agreement, the disposition of the
Notes or an interest in this Agreement held by such Lender shall at all times be
within its exclusive control.
SECTION
7.08. Governing
Law.
This
Agreement and each of the other Loan Documents shall be construed in accordance
with and governed by the law of the State of South Carolina.
SECTION
7.09. Consent
to Jurisdiction; Waiver of Jury Trial.
(a) The
Borrower (i) submits to personal jurisdiction in the State of South Carolina,
the courts thereof and the United States District Courts sitting therein, for
the enforcement of this Agreement, the Notes and the other Loan Documents and
(ii) waives any and all personal rights under the law of any jurisdiction to
object on any basis (including, without limitation, inconvenience of forum) to
jurisdiction or venue within the State of South Carolina for the purpose of
litigation to enforce this Agreement, the Notes or the other Loan Documents.
Nothing herein contained, however, shall prevent any Lender from bringing any
action or exercising any rights against any security and against the Borrower
personally or against any assets of the Borrower, within any other state or
jurisdiction.
(b) THE
AGENT, THE LENDERS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH,
THIS AGREEMENT AND ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF THE AGENT, THE
LENDERS OR THE BORROWER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT
AND THE LENDERS ENTERING INTO THIS AGREEMENT.
SECTION
7.10. Interpretation.
No
provision of this Agreement or any other Loan Document shall be construed
against or interpreted to the disadvantage of any party hereto by any court or
other governmental or judicial authority by reason of such party having or being
deemed to have structured or dictated such provision.
SECTION
7.11. Counterparts.
This
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
SECTION
7.12. Entire
Agreement.
This
Agreement and the other Loan Documents embody the entire agreement and
understanding between the parties hereto and thereto in respect of the
transactions contemplated hereby and thereby and supersede all prior
negotiations, understandings and agreements between such parties or any of them
in respect of such transactions.
ARTICLE
VIII
AGENCY
PROVISIONS
SECTION
8.01. Appointment.
Each
Lender hereby designates and appoints Wachovia, as the Agent of such Lender to
act as specified herein and in the other Loan Documents, and each such Lender
hereby authorizes the Agent as the Agent for such Lender, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
by the terms hereof and of the other Loan Documents, together with such other
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary elsewhere herein and in the other Loan Documents, the Agent shall
not have any duties or responsibilities, except those expressly set forth herein
and therein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any of the other Loan Documents, or shall
otherwise exist against the Agent. The provisions of this Section are solely for
the benefit of the Agent and the Lenders and the Borrower shall not have any
rights as a third party beneficiary of the provisions hereof. In performing its
functions and duties under this Agreement and the other Loan Documents, the
Agent shall act solely as the Agent of the Lenders and does not assume and shall
not be deemed to have assumed any obligation or relationship of agency or trust
with or for the Borrower or any of its Affiliates.
SECTION
8.02. Delegation
of Duties.
The Agent
may execute any of its duties hereunder or under the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
SECTION
8.03. Exculpatory
Provisions.
The Agent
and its officers, directors, employees, agents, attorneys-in-fact or affiliates
shall not be (i) liable for any action lawfully taken or omitted to be taken by
it or such Person under or in connection herewith or in connection with any of
the other Loan Documents (except for its or such Person’s own gross negligence
or willful misconduct), or (ii) responsible in any manner to any of the Lenders
for any recitals, statements, representations or warranties made by the Borrower
contained herein or in any of the other Loan Documents or in any certificate,
report, document, financial statement or other written or oral statement
referred to or provided for in, or received by the Agent under or in connection
herewith or in connection with the other Loan Documents, or the enforceability
or sufficiency therefor of any of the other Loan Documents, or for any failure
of the Borrower to perform its obligations hereunder or thereunder. The Agent
shall not be responsible, to any Lender for the effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement, or
any of the other Loan Documents or for any representations, warranties, recitals
or statements made by the Borrower herein or therein or made by the Borrower in
any written or oral statement or in any financial or other statements,
instruments, reports, certificates or any other documents in connection herewith
or therewith furnished or made by the Agent to the Lenders or by or on behalf of
the Borrower to the Agent or any Lender or be required to ascertain or inquire
as to the performance or observance of any of the terms, conditions, provisions,
covenants or agreements contained herein or therein or as to the use of the
proceeds of the Loans or of the existence or possible existence of any Default
or Event of Default or to inspect the properties, books or records of the
Borrower or its Affiliates.
SECTION
8.04. Reliance
on Communications.
The Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Borrower, independent accountants and other experts selected by the Agent with
reasonable care). The Agent may deem and treat the Lenders as the owner of their
respective interests hereunder for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the Agent
in accordance with Section 7.05 hereof. The Agent shall be fully justified in
failing or refusing to take any action under this Agreement or under any of the
other Loan Documents unless it shall first receive such advice or concurrence of
the Required Lenders as it deems appropriate or it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action.
The Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder or under any of the other Loan Documents in accordance with a
request of the Required Lenders (or to the extent specifically provided in
Section 7.04, all the Lenders) and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Lenders (including their
successors and assigns).
SECTION
8.05. Notice
of Default.
The Agent
shall not be deemed to have knowledge or notice of the occurrence of any Default
or Event of Default hereunder unless the Agent has received notice from a Lender
or the Borrower referring to the Loan Documents, describing such Default or
Event of Default and stating that such notice is a “notice of default.” In the
event that the Agent receives such a notice, the Agent shall give prompt notice
thereof to the Lenders. The Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Required
Lenders.
SECTION
8.06. Non-Reliance
on the Agent and Other Lenders.
Each
Lender expressly acknowledges that each of the Agent and its officers,
directors, employees, agents, attorneys-in-fact or affiliates has not made any
representations or warranties to it and that no act by the Agent or any
affiliate thereof hereinafter taken, including any review of the affairs of the
Borrower or any of its Affiliates, shall be deemed to constitute any
representation or warranty by the Agent to any Lender. Each Lender represents to
the Agent that it has, independently and without reliance upon the Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
assets, operations, property, financial and other conditions, prospects and
creditworthiness of the Borrower or its Affiliates and made its own decision to
make its Loans hereunder and enter into this Agreement. Each Lender also
represents 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 credit analysis, appraisals
and decisions in taking or not taking action under this Agreement, and to make
such investigation as it deems necessary to inform itself as to the business,
assets, operations, property, financial and other conditions, prospects and
creditworthiness of the Borrower and its Affiliates. Except for notices, reports
and other documents 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 business,
operations, assets, property, financial or other conditions, prospects or
creditworthiness of the Borrower or its respective Affiliates which may come
into the possession of the Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
SECTION
8.07. Indemnification.
The
Lenders agree to indemnify the Agent in its capacity as such (to the extent
required by the terms hereof to be, but not so reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
their respective Commitments (or if the Commitments have expired or been
terminated, in accordance with the respective principal amounts of outstanding
Loans of the Lenders), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time be imposed on,
incurred by or asserted against the Agent in its capacity as such in any way
relating to or arising out of this Agreement or the other Loan Documents or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Agent under
or in connection with any of the foregoing; provided that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or willful misconduct of the Agent. If any
indemnity furnished to the Agent for any purpose shall, in the opinion of the
Agent, be insufficient or become impaired, the Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until
such additional indemnity is furnished (which additional indemnity shall be
furnished in accordance with the terms of this Section 8.07). The agreements in
this Section shall survive the repayment of the Loans and other obligations
under the Loan Documents and the termination of the Commitments
hereunder.
SECTION
8.08. The
Agent in its Individual Capacity.
The Agent
and its affiliates may make loans to, accept deposits from and generally engage
in any kind of business with the Borrower, its Subsidiaries or their respective
Affiliates as though the Agent were not the Agent hereunder. With respect to the
Loans made by and all obligations of the Borrower hereunder and under the other
Loan Documents, the Agent shall have the same rights and powers under this Loan
Agreement as any Lender and may exercise the same as though it were not the
Agent, and the terms “Lender” and
“Lenders” shall
include the Agent in its individual capacity.
SECTION
8.09. Successor
Agent.
The Agent
may, at any time, resign upon 20 days’ written notice to the Borrower and the
Lenders. Upon any such resignation, the Required Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within 30 days
after the notice of resignation, then the retiring Agent shall select a
successor Agent provided such successor is a Lender hereunder or a commercial
bank organized under the laws of the United States of America or of any State
thereof and has a combined capital and surplus of at least $400,000,000. Upon
the acceptance of any appointment as the Agent hereunder by a successor, 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 as the Agent, as
appropriate, under this Agreement and the other Loan Documents and the
provisions of this Section 8.09 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Agent under this
Agreement.
SECTION
8.10. Other
Agents.
The
Arrangers and any Lender identified as an “Agent” other than the Agent shall not
have any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such. Without limiting
the forgoing, none of the Lenders so identified shall have or be deemed to have
any fiduciary relationship with any other Lender. Each Lender acknowledges that
it has not relied, and will not rely, on any of the Lenders so identified in
deciding to enter into this Agreement or in taking or not taking action
hereunder.
SECTION
8.11. Existing
Credit Agreement.
On the
date hereof, each of the Existing Credit Agreement and each of the Existing
Notes shall be amended and restated in their entirety. The parties hereto
acknowledge and agree that (a) the execution of this Agreement and the Notes
does not constitute a novation, payment and reborrowing, or termination of the
obligations under the Existing Credit Agreement and the Existing Notes as in
effect prior to the date hereof and which remain outstanding, (b) the
Obligations are in all respects continuing (as amended and restated hereby) and
(c) references in the other Loan Documents to the “Credit Agreement” shall be
deemed to be references to this Agreement and references to the notes issued
pursuant to the Existing Credit Agreement shall be deemed to be references to
the Notes issued pursuant to this Agreement, and to the extent necessary to
effect the foregoing, each such Loan Document is hereby deemed to be amended
accordingly.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
|
PUBLIC
SERVICE COMPANY OF NORTH | |
|
CAROLINA,
INCORPORATED | |
|
By: |
/s/
CathyY. Xxxxxx |
|
Name: |
Xxxxx
X. Xxxxxx |
|
Title: |
Treasurer |
|
WACHOVIA
BANK, | |
|
NATIONAL
ASSOCIATION,
as Agent | |
|
and
a Lender | |
|
By: |
/s/Xxxxxxxxx
X. Xxxxx |
|
Name: |
Xxxxxxxxx
X. Xxxxx |
|
Title: |
Managing
Director |
|
BANK
OF AMERICA, N.A.,
as | |
|
Syndication
Agent and a Lender | |
|
By: |
/s/Xxxxxxxx
X. Xxxxxxxxxx |
|
Name: |
Xxxxxxxx
X. Xxxxxxxxxx |
|
Title: |
Senior
Vice President |
|
THE
BANK OF NEW YORK,
as a | |
|
Documentation
Agent and a Lender | |
|
By: |
/s/Xxxxx
X. Xxxxxxxxxxx |
|
Name: |
Xxxxx
X. Xxxxxxxxxxx |
|
Title: |
Vice
President |
|
BRANCH
BANKING AND TRUST CO. | |
|
OF
SOUTH CAROLINA,
as a | |
|
Documentation
Agent and a Lender | |
|
By: |
/s/X.
X. Xxxxxxxxx, Xx. |
|
Name: |
X.
X. Xxxxxxxxx, Xx. |
|
Title: |
Senior
Vice President |
|
UBS
LOAN FINANCE LLC,
as a Lender | |
|
By: |
/s/Xxxxxxx
X. Saint |
|
Name: |
Xxxxxxx
X. Saint |
|
Title: |
Director,
Banking Products Services, US |
|
By: |
/s/Xxxxxxx
X. Xxxxxx |
|
Name: |
Xxxxxxx
X. Xxxxxx |
|
Title: |
Director,
Banking Products Services, US |
|
SUNTRUST
BANK,
as a Lender | |
|
By: |
/s/Xxxxxx
Xxxxxxx |
|
Name: |
Xxxxxx
Xxxxxxx |
|
Title: |
Vice
President |
|
CREDIT
SUISSE, CAYMAN ISLANDS | |
|
BRANCH,
as
a Lender | |
|
By: |
/s/Xxxxxxx
Xxxxx |
|
Name: |
Xxxxxxx
Xxxxx |
|
Title: |
Vice
President |
|
By: |
/s/Xxxxxx
Xxxxx |
|
Name: |
Xxxxxx
Xxxxx |
|
Title: |
Associate |
|
CAROLINA
FIRST BANK,
as a Lender | |
|
By: |
/s/Xxxxxx
X. Xxxx, Xx. |
|
Name: |
Xxxxxx
X. Xxxx, Xx. |
|
Title: |
Executive
Vice President |
|
THE
NATIONAL BANK OF SOUTH | |
|
CAROLINA, as
a Lender | |
|
By: |
/s/Xxxxxx
X. Xxxx |
|
Name: |
Xxxxxx
X. Xxxx |
|
Title: |
Senior
Vice President |
|
SOUTH
CAROLINA BANK AND | |
|
TRUST,
N.A.,
as a Lender | |
|
By: |
/s/Xxxxx
X. Xxxxxx, Xx. |
|
Name: |
Xxxxx
X. Xxxxxx, Xx. |
|
Title: |
EVP |
SCHEDULE
I
PUBLIC
SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED, COMMITMENTS AND PRO RATA
SHARES
|
LENDING/LIBOR
OFFICE
Wachovia
Bank, National Association
One
Wachovia Center
000
Xxxxx Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0000
Attention:
Syndication Agency Services
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
with
a copy of Notices to:
One
Wachovia Center, DC-5
000
Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0000
Attn:
Xxxxxxxxx X. Xxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
xxxx.xxxxx@xxxxxxxx.xxx |
Commitment
$24,038,461.53
|
Pro
Rata Share
19.23% | ||||
|
LIBOR/LENDING
OFFICE
Bank
of America, N.A.
Xxxxxx
Xxxxxxxxxx
000
Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
xxxxxxxx.x.xxxxxxxxxx@xxxxxxxxxxxxx.xxx
with
a copy of Notices to:
Xxxxxx
Xxxxxxxxx
000
Xxxx Xxxxxx
XX0-000-00-00
Xxxxxx,
Xxxxx 00000-0000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
Xxxxxxxxxx.xxxxxxxxx@xxxxxxxxxxxxx.xxx |
Commitment
$24,038,461.53
|
Pro
Rata Share
19.23% | ||||
|
LENDING/LIBOR
OFFICE
The
Bank of New York
Xxxxx
X. Xxxxxxxxxxx, Vice President
Xxx
Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Telephone:
000-000-0000
Facsimile:
(000) 000-0000
Email:
xxxxxxxxxxxx@xxxxxxxx.xxx
with
a copy of Notices to:
Xxxx
Xxxxxxxx
Xxx
Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
xxxxxxxxx@xxxxxxxx.xxx |
Commitment
$16,346,153.85
|
Pro
Rata Share
13.08% | ||||
|
LENDING/LIBOR
OFFICE
Branch
Bank and Trust Co. of South Carolina
X.X.
Xxxxxxxxx, Xx., Senior Vice President
0000
Xxxxxxxx Xxxxxx
Xxxxxxxx,
Xxxxx Xxxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
xxxxxxxxxx@xxxxxx.xxx
with
a copy of Notices to:
Xxxxxx
X Xxxxx
0000
Xxxxxxxx Xxxxxx
Xxxxxxxx,
Xxxxx Xxxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
xxxxxx@xxxxxx.xxx |
Commitment
$16,346,153.85
|
Pro
Rata Share
13.08% | ||||
|
LENDING/LIBOR
OFFICE
UBS
Loan Finance LLC
Xxxxx
Xxxxxxx
000
Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx,
Xxxxxxxxxxx 00000
Telephone:
(000) 000-0000
Email:
xxxxx.xxxxxxx@xxx.xxx
with
a copy of Notices to:
Xxxxxxxxxxx
Aithin
000
Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx,
Xxxxxxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
Xxxxxxxxxxx.xxxxxx@xxx.xxx |
Commitment
$12,500,000.00
|
Pro
Rata Share
10.00% | ||||
|
LENDING/LIBOR
OFFICE
SunTrust
Bank
Xxxxx
Xxxxxxx
000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx,
XX 00000
Tel:
000-000-0000
Fax:
000-000-0000
Xxxxx.xxxxxxx@xxxxxxxx.xxx
with
a copy of Notices to:
Xxxxxx
Xxxxxxx
000
Xxxxxxxxxx Xxxxxx, XX, 00xx
Xxxxx
Xxxxxxx,
Xxxxxxx 00000
Telephone:
(000) 000-0000
Email:
xxxxxx.xxxxxxx@xxxxxxxx.xxx |
Commitment
$9,615,384.62
|
Pro
Rata Share
7.69% | ||||
|
LENDING/LIBOR
OFFICE
Credit
Suisse First Boston, Acting Through Its Cayman Island
Branch
Xxxxx
Xx
Eleven
Xxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
xxxxx.xx@xxxx.xxx
with
a copy of Notices to:
Xxxxxx
Xxxxx
Xxx
Xxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
xxxxxx.xxxxx@xxxx.xxx |
Commitment
$9,615,384.62
|
Pro
Rata Share
7.69% | ||||
|
LENDING/LIBOR
OFFICE
The
National Bank of South Carolina
Xxxxxx
Xxxx
X.X.
Xxx 0000
Xxxxxxxx,
Xxxxx Xxxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
xxxxxxxxxx@xxxxxxxxxxxxxx.xxx
with
a copy of Notices to:
Xxxx
X. Xxxx
X.X.
Xxx 0000
Xxxxxxxx,
Xxxxx Xxxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
xxxxxxxx@xxxxxxxxxxxxxx.xxx |
Commitment
$6,730,769.23
|
Pro
Rata Share
5.38%
| ||||
|
LENDING/LIBOR
OFFICE
Carolinas
First Bank
Xxxxxxx
X. Xxxxxxxxxxx
000
Xxxxx Xxxx Xxxxxx, 00xx
Xxxxx
Xxxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
xxxxxxx.xxxxxxxxxxx@xxxxxxxxxxxxxx.xxx
with
a copy of Notices to:
Xxxxxxxx
X. Xxxxx
000
Xxxxx Xxxx Xxxxxx, 0xx
Xxxxx
Xxxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
Xxxxxxxx.xxxxxxxxx@xxxxxxxxxxxxxx.xxx |
Commitment
$4,807,692.31
|
Pro
Rata Share
3.85% | ||||
|
LENDING/LIBOR
OFFICE
South
Carolina Bank and Trust, N.A.
Xxx
Xxxxxx
0000
Xx. Xxxxxxxx Xxxx
Xxxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
with
a copy of Notices to:
Xxxxx
Xxxxxx
000
Xxxx X. Xxxxxxx Xxxxx
Xxxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000 |
Commitment
$961,538.46 |
Pro
Rata Share
0.77% | ||||
NOTICE
TO BORROWER:
0000 Xxxx
Xxxxxx
Xxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention:
Xxxxx Xxxxxx
Telecopy
number: (000) 000-0000
Confirmation
number: (000) 000-0000
Schedule
4.05
None
EXHIBIT
A
AMENDED
AND RESTATED
NOTE
Columbia,
South CarolinaJune 30,
2005
For value
received, PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED, a South
Carolina corporation (the “Borrower”),
promises to pay to the order of ___________________________ (the “Lender”), for
the account of its Lending Office, the principal sum of __________________
Dollars ($_________), or such lesser amount as shall equal the unpaid principal
amount of each Loan made by the Lender to the Borrower pursuant to the Credit
Agreement referred to below, on the dates provided in the Credit Agreement. The
Borrower promises to pay interest on the unpaid principal amount of this Note on
the dates and at the rate or rates provided for in the Credit Agreement.
Following the occurrence of an Event of Default, principal of and, to the extent
permitted by law, overdue interest on the principal amount hereof shall bear
interest at the Default Rate, as provided for in the Credit Agreement. All such
payments of principal and interest shall be made in lawful money of the United
States in federal or other immediately available funds at the Lending Office of
the Lender as set forth in the Credit Agreement.
All Loans
made by the Lender, the length of the respective Interest Periods, if any, and
the effective interest rates from time to time applicable thereto and all
prepayments of the principal thereof and whether such Loans are Alternate Base
Rate Loans or LIBOR Rate Loans shall be recorded by the Lender and, prior to any
transfer hereof, endorsed by the Lender on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part hereof, provided that
the failure of the Lender to make, or any error of the Lender in making, any
such recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This Note
is one of the Notes referred to in the Amended and Restated Five-Year Credit
Agreement (as the same may be amended from time to time, the “Credit
Agreement”) dated
as of June 30, 2005 among the Borrower, the lenders party thereto (including the
Lender) and Wachovia, as the Agent. Terms defined in the Credit Agreement and
not otherwise defined herein are used herein with the same meanings. Reference
is made to the Credit Agreement for provisions for the prepayment and the
repayment hereof and the acceleration of the maturity hereof.
The
Borrower hereby waives presentment, demand, protest, notice of demand, protest
and nonpayment and any other notice required by law relative hereto, except to
the extent as otherwise may be expressly provided for in the Credit Agreement.
The
Borrower agrees, in the event that this Note or any portion hereof is collected
by law or through an attorney at law, to pay all reasonable costs of collection,
including, without limitation, reasonable attorneys’ fees, to the extent
expressly provided for in the Credit Agreement.
This Note
shall be construed in accordance with and governed by the laws of the State of
South Carolina. This Note is an amendment and restatement of that certain note
dated June 15, 2004, in favor of the Lender. It is not intended as a novation or
substitution of the original obligation of the Borrower, but is a modification
thereof only. All Obligations represented by the original note shall continue,
except as may be modified hereby.
IN
WITNESS WHEREOF, the Borrower has caused this Note to be duly executed under
seal, by its duly authorized officer as of the day and year first above
written.
|
PUBLIC
SERVICE COMPANY OF NORTH | |
|
CAROLINA,
INCORPORATED | |
|
By: |
|
|
Name: |
|
|
Title: |
|
|
(SEAL) |
Note
(cont’d)
LOANS AND
PREPAYMENTS OF PRINCIPAL
|
Date |
Type
of
Loan |
Interest
Rate |
Amount
of
Loan |
Amount
of
Principal
Prepaid |
Length
of
Interest
Period |
Notation
Made
By |
EXHIBIT
B-1
[DRAFT]
June 30,
2005
Wachovia
Bank, National Association, as Administrative Agent,
under the
Credit Agreement referenced below
000 Xxxxx
Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Bank of
America, N.A., as Syndication Agent,
under the
Credit Agreement
000 Xxxxx
Xxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
and
The
Lenders listed on Schedule
I hereto
which are
parties
to the Credit Agreement on the date hereof
Gentlemen:
We have
acted as counsel for Public Service Company of North Carolina, Incorporated, a
South Carolina corporation (the “Borrower”), in
connection with the $125,000,000 Amended and Restated Five-Year Credit Agreement
dated as of June 30, 2005 (the “Credit
Agreement”), among
the Borrower, the Lenders identified therein, Wachovia Bank, National
Association, as Administrative Agent, and Bank of America, N.A., as Syndication
Agent (collectively, the “Agents”). Terms
defined in the Credit Agreement are used herein as defined therein. This opinion
is being furnished to you pursuant to Section 3.01(c) of the Credit
Agreement.
In
connection with this opinion, we have examined copies of the Credit Agreement
and the Notes which have been executed and delivered by the Borrower. We also
have examined originals or copies, certified or otherwise identified to our
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for purposes of this
opinion. As to questions of fact relating to the Borrower material to such
opinion, we have relied upon representations of officers of the Borrower and
certificates of public officials. In connection with the matters addressed in
paragraphs 2(iii) and 3, we have relied upon the opinion of Xxxxxxx X. Mood,
Senior Vice President and General Counsel to the Borrower of even date herewith
addressed to you.
When used
herein, “Loan
Documents” shall
mean the Credit Agreement and the Notes.
In our
examination, we have assumed, with your permission:
| (a) |
the
genuineness of all signatures and the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents;
|
| (b) |
that
each of the Loan Documents has been duly authorized, executed and
delivered by each of the parties thereto other than the Borrower, and is a
valid and binding obligation of each such party other than Borrower,
enforceable against each such party in accordance with its terms;
|
|
(c) |
that
good and adequate consideration was given for the execution and delivery
of the Loan Documents; |
|
(d) |
that
the Loans provided for in the Credit Agreement are for commercial
purposes; and |
|
(e) |
that
the Agents and the Lenders will exercise their rights and remedies under
the Loan Documents in good faith and in a commercially reasonable
manner. |
Upon the
basis of the foregoing, but subject to the assumptions and qualifications set
forth herein, we are of the opinion that:
1. The
Borrower is a corporation existing under the laws of the State of South Carolina
(the "State"), has
all corporate power required to carry on its business as now conducted and is
duly qualified to transact business in every jurisdiction in which, by the
nature of its business, such qualification is necessary, except where the
failure to be so qualified would not have a material adverse effect on the
business, operations, property or financial or other condition of the Borrower
on a consolidated basis.
2. The
execution, delivery and performance by the Borrower of the Credit Agreement and
the Notes (i) are within the Borrower’s corporate power, (ii) have been duly
authorized by all necessary corporate action and (iii) assuming compliance with
the SEC Order and the NCUC Order and that all required regulatory filings are
made, do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the Articles of Incorporation or By-laws of
the Borrower.
3. Each of
the Credit Agreement and each of the Notes constitutes a valid and binding
agreement of the Borrower, enforceable against the Borrower in accordance with
its terms.
4. The
Borrower is not an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
5. The rates
of interest to be charged on the Loans to the Borrower under the Credit
Agreement are not usurious under applicable constitutional, legislative,
judicial or administrative provisions, statutes, regulations, decisions, rulings
or other laws of the State.
The
opinions expressed herein are qualified as follows:
|
A. |
We
express no opinion as to compliance with law, or consents, approvals,
authorizations, orders, registrations or qualifications with or from
courts or governmental or regulatory authorities, with respect to the
conduct of the Borrower’s ongoing business operations.
|
|
B. |
This
opinion is based upon laws and regulations in effect on the date hereof,
and administrative and judicial interpretations thereof, and we assume no
obligation to update or supplement this opinion to reflect any events or
state of facts that may hereafter come to our attention or any changes in
laws, regulations or court decisions that may hereafter
occur. |
|
C. |
We
are qualified to practice law in the State and we express no opinion as to
any laws other than the laws of the State and of the United States of
America. |
|
D. |
We
advise you that we previously have represented and currently are
representing some of the Lenders and the Agents in unrelated matters. By
your acceptance of this opinion letter, you waive any claim for conflicts
of interest as a result of our representation of the Borrower in this
transaction and our representation of the Lenders and the Agents in
unrelated matters. |
|
E. |
The
obligations of the Borrower, and the rights of the Agents and the Lenders
under the Loan Documents, are subject to (i) the United States Bankruptcy
Code, 11 USC §101, et seq. (the “Bankruptcy
Code”);
(ii) bankruptcy, insolvency, fraudulent conveyance, marshalling, appraisal
rights, liquidation, receivership, moratorium, reorganization or other
similar laws affecting the enforcement of creditors’ rights generally;
(iii) general principles of equity limiting the availability of the remedy
of specific performance and affecting the enforcement of creditors’ rights
generally, regardless of whether such matters are considered in a
proceeding at law or in equity; (iv) considerations of public policy
including those limiting the enforceability of indemnities and remedies;
(v) a requirement that remedies be exercised in good faith; and (vi)
rights of any governmental authority or agency thereof arising under any
applicable law or regulation. |
|
F. |
This
opinion is limited to the matters expressly set forth herein. We
express no opinion with respect to any other matters or with respect to
any federal or State antitying, antitrust, securities, intellectual
property or tax laws, and no
other opinions should be inferred beyond the matters expressly
stated. |
|
X. |
Xxxxx
on the part of a lender to exercise remedies under a loan document has, in
some cases, been determined by the courts of the State to constitute a
waiver of such remedies. We express no opinion as to whether provisions
like those in the Loan Documents which purport to preclude such waivers
will be deemed enforceable if considered by the courts of the
State. |
|
H. |
The
waiver of rights, such as, without limitation, waivers of acceptance,
presentment, demand, protest, notice, defenses, appraisement, valuation,
stay, marshalling, rights of redemption, objections to jurisdiction, venue
and inconvenient forum, jury trial rights and other similar rights are
present waivers in advance of the existence of those rights and, as such,
are of doubtful enforceability in the State. In addition, certain waivers
may be unenforceable as against public policy, including but not limited
to waivers of defenses based on lack of capacity or lack of consideration,
and compulsory counterclaims may not be waived. Moreover, with respect to
waivers of rights to jury trials, we must advise you that while there
appears to be a basis of support in case law upholding such waivers, State
courts have strictly construed such
waivers. |
|
I. |
We
express no opinion as to the enforceability of provisions in the Loan
Documents pursuant to which the Borrower agrees to waivers on behalf of
third parties not a party to such Loan
Documents. |
|
J. |
We
express no opinion as to the enforceability of remedial provisions of the
Loan Documents which are dependent on licensure of or grant of other
governmental authority to the Agents or the
Lenders. |
|
K. |
As
noted in Mr. Mood’s opinion, further authorizations will be required in
order for the Borrower to borrow under the Credit Agreement after April
15, 2006, and certain filings are required under the SEC Order and the
NCUC Order. |
|
L. |
We
express no opinion as to the enforceability of any provision whereby the
Agents or any Lender reserve the right to charge "default interest" or a
higher rate of interest after default than the interest that would
otherwise accrue under the documents, or any other charge or fee, however
calculated, which would be deemed a penalty to the extent such interest,
charge or fee is in violation of public
policy. |
This
opinion is delivered to you in connection with the transactions referenced above
and may only be relied upon by you or any Eligible Assignee or Participant under
the Credit Agreement, and by no other Person, without our prior written
consent.
Very
truly yours,
XxXXXX
LAW FIRM, P.A.
By:
__________________________________
A member
of the Firm
Schedule
I
Lenders
identified in the Credit Agreement
Wachovia
Bank, National Association
Bank of
America, N.A.
The Bank
of New York
Branch
Banking and Trust Co. of South Carolina
UBS Loan
Finance LLC
Suntrust
Bank
Credit
Suisse First Boston, acting through its Cayman Islands Branch
The
National Bank of South Carolina
Carolina
First Bank
South
Carolina Bank and Trust, N.A.
EXHIBIT
X-0
Xxxx 00,
0000
Xxxxxxxx
Bank, National Association, as Administrative Agent,
under the
Credit Agreement referenced below
000 Xxxxx
Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Bank of
America, N.A., as Syndication Agent,
under the
Credit Agreement
000 Xxxxx
Xxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
and
The
Lenders listed on Schedule
I hereto
which are
parties
to the Credit Agreement on the date hereof
Gentlemen:
I am
Senior Vice President and General Counsel of Public Service Company of North
Carolina, Incorporated, a South Carolina corporation (the “Borrower”), and
have acted as counsel to the Borrower in connection with the $125,000,000
Amended and Restated Five-Year Credit Agreement dated as of June 30, 2005 (the
“Credit
Agreement”), among
the Borrower, the Lenders identified therein, Wachovia Bank, National
Association, as Administrative Agent, and Bank of America, N.A., as Syndication
Agent. Terms defined in the Credit Agreement are used herein as therein defined.
This opinion is being furnished to you pursuant to Section 3.01(c) of the Credit
Agreement.
In
connection with this opinion, I have examined copies of the Credit Agreement and
the Notes which have been executed and delivered by the Borrower. I also have
examined originals or copies, certified or otherwise identified to my
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion. In my examination, I have assumed the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified or photostatic copies and the
authenticity of the originals of such latter documents. I have assumed for
purposes of my opinion set forth below that the Credit Agreement has been duly
authorized, executed and delivered by each of the parties thereto other than the
Borrower. As to questions of fact relating to the Borrower material to such
opinion, I have relied upon representations of appropriate officers of the
Borrower and certificates of public officials.
Upon the
basis of the foregoing and subject to the qualifications, limitations and
exceptions set forth herein, I am of the opinion that:
1. The
execution, delivery and performance by the Borrower of the Credit Agreement and
the Notes (i) do not contravene, or constitute a default under, any provision of
applicable law or regulation (including, without limitation, PUHCA) or any
material agreement, judgment, injunction, order, decree or other instrument
which is binding upon the Borrower provided that the conditions in the SEC Order
set out in the Credit Agreement continue to be complied with, except that, in
order for the Borrower to borrow under the Credit Agreement after April 15,
2006, additional authorization from the Securities and Exchange Commission (the
“SEC”) will
be required; (ii) do not result in the creation or imposition of any Lien on any
asset of the Borrower (other than Liens created under the Credit Agreement); and
(iii) require no action by or in respect of, or filing with, any governmental
body, agency or official, except for (a) such authorizations as may be required
from the SEC which have been obtained through Xxxxx 00, 0000, (x) the filings
set forth in the SEC Order which filings, if any, required to have been made on
or before the date hereof, have been made, (c) such authorizations as may be
required by the NCUC which as set forth in the NCUC Order have been obtained and
(d) the filings required under the NCUC Order, which filings will be made within
the time periods required.
With
respect to the matters addressed in paragraph 1(i) above, I note for you that
the Borrower is a party to a Debenture Purchase Agreement dated as of June 25,
1992 relating to the Borrower’s $32,000,000 original principal amount 8.75%
Senior Debentures due June 30, 2012 (the “Debenture
Agreement”). The
Debenture Agreement contains covenants on the part of the Borrower to limit the
amount of (a) additional unsecured Funded Debt as defined in the Debenture
Agreement as all Debt (as defined in the Debenture Agreement) which would, in
accordance with generally accepted accounting principles, constitute long term
debt, and in any event includes (A) any Debt with a maturity more than one year
after the date of determination, (B) any Debt outstanding under a revolving
credit or similar agreement providing for borrowings (and renewals and
extensions thereof) over a period extending more than one year from the date of
determination notwithstanding that any such Debt may be payable on demand or
within one year after such date, (C) any Financing Lease Obligation (as defined
in the Debenture Agreement) and (D) any Guaranty (as defined in the Debenture
Agreement) with respect to Funded Debt of another person; and (b) Current Debt
as defined in the Debenture Agreement as all Debt which would, in accordance
with generally accepted accounting principles, constitute short term debt, and
in any event includes all such Debt with a maturity one year or less after the
date of determination (except any such Debt included in Funded Debt by reason of
clause (B) of the definition thereof). For purposes of the matters addressed in
paragraph 1(i) above, I have assumed that the Borrower, in the course of its
performance (but not the execution and delivery) of the Credit Agreement and the
Notes, will not violate the limitations on Funded Debt or Current Debt set forth
in the Debenture Agreement.
2. Other
than as disclosed in the Disclosure Documents, there are no actions, suits or
proceedings pending or, to my knowledge, threatened against or affecting the
Borrower before any court or arbitrator or any governmental body, agency or
official except actions, suits or proceedings that, if adversely determined,
would not individually or in the aggregate have a reasonable possibility (taking
into account the likelihood of an adverse determination) of having a Material
Adverse Effect.
I am
qualified to practice in the State of South Carolina and do not purport to be an
expert on, or to express any opinion herein concerning any law other than the
law of the State of South Carolina and the federal law of the United States. I
have made no independent investigation of the law of any jurisdiction other than
the law of the State of South Carolina and the federal law of the United
States.
This
opinion is delivered to you in connection with the transactions referenced above
and may only be relied upon by you or any Eligible Assignee or Participant under
the Credit Agreement and by no other Person, without my prior written consent.
Furthermore, these opinions are rendered as of the date hereof, and I disclaim
any requirements to update this opinion subsequent to the date
hereof.
Very
truly yours,
By:
Xxxxxxx
X. Mood, Jr.,
Senior
Vice President and General Counsel
Schedule
I
Lenders
identified in the Credit Agreement
EXHIBIT
C
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference
is made to the Amended and Restated Five-Year Credit Agreement dated as of June
30, 2005 (as amended and modified from time to time, the “Credit
Agreement”) among
PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED, a South Carolina
corporation, the Lenders identified therein and Wachovia Bank, National
Association, as the Agent. Terms defined in the Credit Agreement are used herein
with the same meaning.
The
“Assignor” and the
“Assignee”
referred to on Schedule I agree as follows:
1. The
Assignor hereby sells and assigns to the Assignee, without recourse and without
representation or warranty except as expressly set forth herein, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and to
the Assignor’s rights and obligations under the Agreement and the other Loan
Documents as of the date hereof equal to the percentage interest specified on
Schedule
I of all
outstanding rights and obligations under the Agreement and the other Loan
Documents. After giving effect to such sale and assignment, the Assignee’s
Commitment and the amount of the Loans owing to the Assignee will be as set
forth on Schedule
I and the
Assignor’s Commitment and the amount of the Loans owing to the Assignor will be
as set forth on Schedule
I.
2. The
Assignor (i) represents and warrants that it is the legal and beneficial owner
of the interest being assigned by it hereunder and that such interest is free
and clear of any adverse claim; (ii) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Loan Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Loan Documents or any other instrument or document furnished pursuant
thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Loan Documents or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Notes held by the Assignor and requests that the Agent
exchange such Notes for new Notes payable to the order of the Assignee in an
amount equal to the Commitment assumed by the Assignee pursuant hereto and to
the Assignor in an amount equal to the Commitment retained by the Assignor, if
any, as specified on Schedule
I.
3. The
Assignee (i) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements referred to in Sections 4.04(a)
and 5.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement as are delegated to the
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender; and (vi) attaches any
U.S. Internal Revenue Service or other forms required under Section
2.14.
4. Following
the execution of this Assignment and Acceptance, it will be delivered to the
Agent for acceptance and recording by the Agent. The effective date for this
Assignment and Acceptance (the “Effective
Date”) shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule
I.
5. Upon such
acceptance and recording by the Agent, as of the Effective Date, (i) the
Assignee shall be a party to the Credit Agreement and, to the extent provided in
this Assignment and Acceptance and the Credit Agreement, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance and the Credit Agreement, relinquish
its rights and be released from its obligations under the Credit
Agreement.
6. Upon such
acceptance and recording by the Agent, from and after the Effective Date, the
Agent shall make all payments under the Credit Agreement and the Notes in
respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and commitment fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate adjustments in
payments under the Credit Agreement and the Notes for periods prior to the
Effective Date directly between themselves.
7. This
Assignment and Acceptance shall be governed by, and construed in accordance
with, the laws of the State of South Carolina.
8. This
Assignment and Acceptance may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of
this Assignment and Acceptance by telecopier shall be effective as delivery of a
manually executed counterpart of this Assignment and Acceptance.
IN
WITNESS WHEREOF, the Assignor and the Assignee have caused this Assignment and
Acceptance to be executed by their officers thereunto duly authorized as of the
date hereof.
____________________________,
as Assignor
By:
Name
Title:
_______________________________,
as Assignee
By:
Name:
Title:
Notice
address of Assignee:
<<Assignee>>
_________________________
_________________________
Attn:
_____________________
Telephone:
(___) ___________
Telecopy:
(___) ____________
CONSENTED
TO:
WACHOVIA
BANK, NATIONAL ASSOCIATION,*
as the
Agent
By:
Name:
Title:
PUBLIC
SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED*
By:
Name:
Title:
_____________________________________
*Required
if the Assignee is an Eligible Assignee solely by reason of clause (iii) of the
definition of “Eligible Assignee.”
*Required
if the Assignee is an Eligible Assignee solely by reason of clause (iii) of the
definition of “Eligible Assignee.”
SCHEDULE
I
to
ASSIGNMENT
AND ACCEPTANCE
|
(a) |
Date
of Assignment:
|
|
|
(b) |
Legal
Name of Assignor:
|
|
|
(c) |
Legal
Name of Assignee:
|
|
|
(d) |
Effective
Date of Assignment*:
|
|
|
(e) |
Pro
Rata Percentage Assigned
(expressed
as a percentage set forth to at least 8 decimals)
|
% |
|
(f) |
Pro
Rata Percentage of Assignee
after
giving effect to this Assignment and Acceptance on the Effective Date (set
forth to at least 8 decimals)
|
% |
|
(g) |
Pro
Rata Percentage of Assignor
after
giving effect to this Assignment and Acceptance on the Effective Date (set
forth to at least 8 decimals)
|
% |
|
(h) |
Outstanding
Balance of Loans as of the Effective Date
|
$__________ |
|
(i) |
Dollar
Amount of Assignor’s portion of the Loans after giving effect to this
Assignment and Acceptance on the Effective Date (the amount set forth in
(h) multiplied by the percentage set forth in (g))
|
$__________ |
|
(j) |
Dollar
Amount of Assignee’s portion of the Loans after giving effect to this
Assignment and Acceptance on the Effective Date (the amount set forth in
(h) multiplied by the percentage set forth in (f))
|
$__________ |
__________________
*This
date should be no earlier than five Business Days after delivery of this
Assignment and Acceptance to the Agent.
EXHIBIT
D-1
NOTICE
OF BORROWING
[Date]
This
Notice of Borrowing is given under and pursuant to Section 2.02 of the Amended
and Restated Five-Year Credit Agreement (as amended from time to time, the
“Credit
Agreement”) dated
as of June 30, 2005, among PUBLIC SERVICE COMPANY OF NORTH CAROLINA,
INCORPORATED, the Lenders identified therein and Wachovia, as the Agent.
Capitalized terms used and not defined herein shall have the meanings assigned
to them in the Credit Agreement.
9. The date
of the Borrowing in connection with which this Notice of Borrowing is given
shall be ______________________________.
10. The Type
of and Interest Period (if applicable) for the Loan shall be
_______________________.
11. The
aggregate amount of such Borrowing shall be $___________________.
12. In the
case of a Borrowing comprising LIBOR Rate Loans the initial Interest Period is:
[1, 2, 3 or 6] months.
13. The
Borrower hereby represents and warrants that on the date the Borrowing requested
hereunder is made (both before and after giving effect to the making of such
Borrowing and after giving effect to the application, directly or indirectly, of
the proceeds of such Borrowing):
(b) no
Default or Event of Default has occurred and is continuing; and
(c) the
representations and warranties of the Borrower contained in Article IV of the
Credit Agreement (other than with respect to Section 4.04(b) and Section 4.05)
are true and correct in all material respects as if made on and as of the date
of such Borrowing.
The
Borrower has caused this Notice of Borrowing to be executed and delivered and
the certification and warranties contained herein to be made by its duly
authorized officer this _______ day of ________________________,
20___.
PUBLIC
SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED
By:
Title:
EXHIBIT
D-2
FORM
OF NOTICE OF CONVERSION
[Date]
This
Notice of Conversion is given under and pursuant to Section 2.16 of the Amended
and Restated Five-Year Credit Agreement (as amended from time to time, the
“Credit
Agreement”), dated
as of June 30, 2005, among PUBLIC SERVICE COMPANY OF NORTH CAROLINA,
INCORPORATED, the Lenders identified therein and WACHOVIA, as the Agent.
Capitalized terms used and not defined herein shall have the meanings assigned
to them in the Credit Agreement.
1. This
Notice of Conversion is made pursuant to the terms of the Credit
Agreement.
2. Please be
advised that the Borrower is requesting that as of _________ a portion of the
current outstanding Loans, in the amount of $______________, currently accruing
interest at _____________, be continued or converted at the interest rate option
set forth in paragraph 3 below.
3. The
interest rate option applicable to the conversion of all or part of the existing
Loans shall be:
a. ________ the
Alternate Base Rate
b. ________ the LIBOR
Rate plus the Applicable Percentage
for an
Interest Period of:
________
one month
________
two months
________
three months
________
six months
PUBLIC
SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED
By:
Name:
Title:
EXHIBIT
E
FORM
OF COMPLIANCE CERTIFICATE
COMPLIANCE
CERTIFICATE
Reference
is made to the Amended and Restated Five-Year Credit Agreement dated as of June
30, 2005 (as modified and supplemented and in effect from time to time, the
“Credit
Agreement”) by and
among Public Service Company of North Carolina, Incorporated, the Lenders from
time to time parties thereto, and Wachovia, as the Agent. Capitalized terms used
herein shall have the meanings ascribed thereto in the Credit Agreement; all
amounts shown herein, unless expressly set forth to the contrary, shall be
without duplication.
Pursuant
to the terms of the Credit Agreement, _________________________, the duly
authorized ____________________ of the Borrower, hereby certifies to the Agent
and the Lenders that, as of and for the Fiscal Quarter/Fiscal Year ended
___________, (i) the quarterly/annual financial statements for the fiscal period
cited, which accompany this certificate, fairly present in all material respects
the financial condition of the Borrower and have been prepared in accordance
with GAAP (in the case of any quarterly financial statements, subject to changes
resulting from normal year-end audit adjustments and with the understanding that
such financial statements may not contain the complete notes appearing in the
annual financial statements). (ii) no Default or Event of Default is in
existence on and as of the date hereof, (iii) Schedule
1 attached
hereto sets forth the true and correct amount of Off-Balance Sheet Debt in
excess of $5,000,000 in the aggregate of the Borrower as of the end of fiscal
period cited above and (iv) Schedule
2 attached
hereto sets forth the calculations (calculated as of the date of the financial
statements referred to above) demonstrating compliance by the Borrower with the
financial covenant contained in Section 5.19 of the Credit Agreement as of the
end of the fiscal period cited above.
PUBLIC
SERVICE COMPANY OF NORTH CAROLINA, INCORPORATED
By:
Name:
Title:
Schedule
1
Off
Balance Sheet Debt of the Borrower in Excess of $5,000,000 in the
Aggregate
Schedule
2
Compliance
with Financial Covenant
|
Compliance
with Section 5.19 - Debt Capitalization |
||||
|
A. |
Debt |
$ |
||
|
B. |
Total
Capitalization |
$ |
||
|
1. |
preferred
stock |
$ |
||
|
2. |
Common
Equity |
$ |
||
|
3. |
Debt
(Line A) |
$ |
||
|
4. |
unamortized
common stock expense |
$ |
||
|
5. |
Total
Capitalization (Line B.1 plus
Line B.2 |
|||
|
plus
Line B.3 minus
Line B.4) |
||||
|
C. |
Ratio
of Debt to Total Capitalization (Line A to Line B.5) |
to
1.0 | ||
|
(Not
to exceed .70 to 1.0) | ||||
