AMENDMENT AGREEMENT
This Amendment Agreement ("Agreement") is entered into as of the 4th day of
March, 2003, by and among UNITIL CORPORATION, a New Hampshire corporation with a
principal place of business at 0 Xxxxxxx Xxxx Xxxx, Xxxxxxx, Xxx Xxxxxxxxx,
00000 (the "Borrower") (the Borrower and all other persons primarily or
secondarily liable hereunder or in respect hereto are sometimes referred to
herein as the "Obligor") and FLEET NATIONAL BANK, a national bank organized
under the laws of the United States with an office at 0000 Xxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000 (the "Bank").
W I T N E S S E T H
WHEREAS, the Bank and the Borrower entered into a certain Letter Agreement
dated as of September 13, 2000, as amended, modified and supplemented (the
"Letter Agreement"), establishing a line of credit in favor of the Borrower in
the original principal amount of up to Sixteen Million Dollars ($16,000,000)
(the "Line") and have executed and/or delivered certain documents and
instruments in connection therewith (all of the foregoing, including, without
limitation, the Letter Agreement, as the same have been and may hereafter be
amended, renewed and/or modified are hereinafter referred to collectively as the
"Loan Documents");
WHEREAS, the Borrower and the Bank have agreed to amend the Letter
Agreement and Loan Documents to, among other things, (i) conditionally increase
the maximum principal amount available under the Line to Twenty One Million
Dollars ($21,000,000); and (ii) amend the Loan Documents in certain other
respects.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements therein contained, the receipt and adequacy of which are hereby
acknowledged, the parties covenant, stipulate and agree as follows:
1. Representations and Warranties of the Borrower. The Borrower represents
and warrants to the Bank as follows:
(a) The representations, warranties and covenants of the Borrower made in
the Loan Documents remain true and accurate and are hereby reaffirmed as of the
date hereof.
(b) The Borrower has performed, in all material respects, all obligations
to be performed by it to date under the Loan Documents and no event of default
exists thereunder.
(c) The Borrower is a corporation duly organized, qualified and existing in
good standing under the laws of the state of its formation and in all other
jurisdictions in which the character of the property owned or the nature of the
existing business conducted by the Borrower require its qualification as a
foreign corporation.
(d) The execution, delivery and performance of this Agreement and the
documents relating hereto (the "Amendment Documents") are within the power of
the Borrower and are not in contravention of law, of the Borrower's Articles of
Incorporation, Bylaws or the terms of any other documents, agreements or
undertaking to which the Borrower is a party or by which the Borrower is bound.
No approval of any person, corporation, governmental body or other entity
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not provided herewith is a prerequisite to the execution, delivery and
performance by the Borrower of the Amendment Documents or any of the documents
submitted to the Bank in connection with the Amendment Documents, or upon
execution by the Bank to ensure the validity or enforceability thereof.
(e) When executed on behalf of the Borrower, the Amendment Documents will
constitute valid and legally binding obligations of the Borrower, enforceable in
accordance with their terms.
2. Amendments to Letter Agreement. The Letter Agreement shall be amended as
follows:
(a) The first sentence of the first paragraph on page one of the Letter
Agreement is hereby amended by deleting the phrase "Sixteen Million Dollars
($16,000,000)" and replacing it with "Twenty One Million Dollars ($21,000,000)".
(b) The second sentence of the first paragraph on page one of the Letter
Agreement is hereby amended by deleting the date "June 30, 2001" and replacing
it with "June 30, 2004".
(c) The second sentence of the third paragraph on page one of the Letter
Agreement is hereby amended by deleting the phrase "of even or near date" and
replacing it with "dated September 18, 2000, as the same may be amended".
(d) The third paragraph on page one of the Letter Agreement is hereby
amended by adding the following at the end thereof:
"The Loan Documents together are intended by the parties as the final,
complete and exclusive statement of the transactions evidenced by this
Agreement and Loan Document. All prior or contemporaneous promises,
agreements and understandings, whether oral or written, are deemed to
be superceded by the Loan Documents, and no party is relying on any
promise, agreement or understanding not set forth in the Loan
Documents."
(e) The first sentence of the second full paragraph appearing on page two
of the Letter Agreement is hereby amended by inserting the following at the end
of said sentence before the period: "or any such individual as such officer
shall designate in writing who is authorized to borrow money from the Bank".
(f) The last sentence of the second full paragraph appearing on page two of
the Letter Agreement is hereby amended by deleting the phrase "minimum
increments" and replacing said phrase with "the minimum amount".
(g) The second sentence of the second full paragraph appearing on page
three of the Letter Agreement is hereby amended by deleting the amount
"$16,000,000" and replacing it with "$21,000,000".
3. Amendment to Line of Credit Promissory Note. The Line of Credit
Promissory Note in the original principal amount of Sixteen Million Dollars
($16,000,000) dated as of
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September 18, 2000, as amended, made payable by the Borrower to the Bank (the
"Line of Credit Note") is hereby amended as follows:
(a) The amount "$16,000,000" appearing in the upper left hand corner on
page 1 of the Line of Credit Note is deleted and replaced with "$21,000,000".
(b) The amount "Sixteen Million Dollars ($16,000,000)" appearing on page 1
in the first paragraph of the Line of Credit Note is hereby deleted and replaced
with "Twenty One Million ($21,000,000)".
(c) The fourth paragraph appearing on page 1 of the Line of Credit Note is
hereby amended by deleting the amount "Sixteen Million Dollars ($16,000,000)"
appearing in the first sentence thereof and replacing it with "Twenty One
Million Dollars ($21,000,000)"
(d) All terms and conditions of the Line of Credit Note, except as amended
hereby, are hereby ratified and confirmed.
4. 4. Conditions Subsequent. The parties hereto acknowledge and agree that
the Bank's agreement to increase the maximum principal amount available under
the Line from Sixteen Million Dollars ($16,000,000) to Twenty One Million
Dollars ($21,000,000) and to extend the Annual Review Date (as defined in the
Letter Agreement) to June 30, 2004 is expressly conditioned upon the Bank, the
Borrower and the Borrower's other lending institutions (being Sovereign Bank and
Citizens Bank New Hampshire) entering into an Intercreditor Agreement acceptable
to the Bank in its sole discretion (the "Intercreditor Agreement") within ninety
(90) days of the date hereof. If the parties are unable to agree upon and fully
execute the Intercreditor Agreement within said ninety (90) day period, the
Annual Review Date shall automatically revert back to June 30, 2003, and the
Borrower shall make such principal reduction payments on the Line as are
necessary to reduce the outstanding principal balance thereof to be no more than
$16,000,000 and then the maximum principal amount available under the Line shall
automatically reduce to $16,000,000.
5. Conditions Precedent. The obligations of the Bank hereunder are subject
to the following conditions precedent:
(a) The Borrower shall deliver to the Bank this Agreement and the Amendment
Documents.
(b) The Bank shall have received certified copies of instruments evidencing
all corporate action taken by the Borrower to authorize this Agreement, the
borrowing hereunder, and the execution and delivery of the Amendment Documents
and shall have executed and delivered all of those documents and other matters
set forth in the Closing Agenda attached hereto as Exhibit A.
(c) The Borrower pay the Bank a fee in the amount of $500.
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6. Loan Documents. The Borrower shall deliver this Agreement and the other
Amendment Documents to the Bank and these documents shall be included in the
term "the Loan Documents" in the Letter Agreement.
7. Future References. All references to the Loan Documents shall
hereinafter refer to such documents as amended.
8. Continuing Effect. The provisions of the Loan Document, as modified
herein, shall remain in full force and effect in accordance with their terms and
are hereby ratified and confirmed.
9. General.
(a) The Borrower shall execute and deliver such additional documents and do
such other acts as the Bank may reasonably require to implement the intent of
this Agreement fully.
(b) The Borrower shall pay all costs and expenses, including, but not
limited to, attorneys' fees incurred by the Bank in connection with this
Agreement. The Bank, at its option, but without any obligation to do so, may
advance funds to pay any such costs and expenses that are the obligation of the
Borrower and all such funds advanced shall bear interest at the highest rate
provided in the Loan Documents.
(c) This Agreement and Amendment Documents may be executed in several
counterparts by the Borrower, the Bank and any obligor or guarantor of the
Letter Agreement, each of which shall be deemed an original but all of which
together shall constitute one and the same Agreement
IN WITNESS WHEREOF, the parties have executed this agreement by their duly
authorized parties as of the date set forth above.
FLEET NATIONAL BANK
/s/ By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------- ---------------------------------------
Witness Xxxxxx X. Xxxxxxxxx, Its Duly
Authorized Assistant Vice President
UNITIL CORPORATION
/s/ By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------- ---------------------------------------
Witness Xxxxxxx X. Xxxxxx, Its Duly
Authorized President
UNITIL CORPORATION
/s/ By: /s/ Xxxx X. Xxxxxx
-------------------------------- ---------------------------------------
Witness Xxxx X. Xxxxxx, Its Duly
Authorized Treasurer
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STATE OF NEW HAMPSHIRE
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this 5th day of
March, 2003, by Xxxxxx X. Xxxxxxxxx, duly authorized Assistant Vice President of
FLEET NATIONAL BANK, a national bank organized under the laws of the United
States, on behalf of the same.
/s/ Xxxxx X. Xxxxxxx
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Justice of the Peace/Notary Public
My Commission Expires:
Notary Seal ------------
STATE OF NEW HAMPSHIRE
COUNTY OF ROCKINGHAM
The foregoing instrument was acknowledged before me this 4th day of
March, 2003, by Xxxxxxx X. Xxxxxx, duly authorized President of UNITIL
CORPORATION, a New Hampshire corporation, on behalf of the same.
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Justice of the Peace/Notary Public
My Commission Expires:
Notary Seal ------------
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XXXXX XX XXX XXXXXXXXX
XXXXXX XX XXXXXXXXXX
The foregoing instrument was acknowledged before me this 4th day of
March, 2003, by Xxxx X. Xxxxxx, duly authorized Treasurer of UNITIL CORPORATION,
a New Hampshire corporation, on behalf of the same.
/s/ Xxxxxx X. Xxxxxxx
Justice of the Peace/Notary Public
My Commission Expires:
Notary Seal -----------
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