Exhibit 4-56.4
FOURTH AMENDMENT
TO CREDIT AGREEMENT
FOURTH AMENDMENT, dated as of May 25, 1999 (this
"Amendment"), to the Credit Agreement referred to below by
and among CENTRAL VERMONT PUBLIC SERVICE
CORPORATION, a Vermont corporation ("Borrower"), each
of the lenders thatis a signatory to the Credit Agreement or which,
pursuant to Section 10.6 thereof shall become a "Lender" thereunder (the
"Lenders"), FLEET NATIONAL BANK, as syndication agent (the
"Syndication Agent"), and TORONTO DOMINION (TEXAS), INC., as
agent for the Lenders hereunder (the "Agent"; Lenders,
Syndication Agent and Agent are sometimes collectively
referred to herein as the "Lending Group").
W I T N E S S E T H
WHEREAS, the Borrower and the Lending Group are
parties to that certain Credit Agreement, dated as of
November 5, 1997 (as heretofore amended, supplemented or
otherwise modified, the "Credit Agreement"); and
WHEREAS, the Borrower and the Lending Group have
agreed to amend the Credit Agreement in the manner, and on
the terms and conditions, provided for herein.
NOW THEREFORE, in consideration of the premises
and for other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged,
the Borrower and the Lending Group hereby agree as follows:
1. Definitions. Capitalized terms not otherwise
defined herein shall have the meanings ascribed to them in
the Credit Agreement, as amended hereby (the "Amended Credit
Agreement").
2. Amendments to the Credit Agreement. The Credit
Agreement shall be amended as of the Amendment Effective
Date (as hereinafter defined) as follows:
(a) Section 1.1 of the Credit Agreement is
amended by deleting in its entirety the table appearing in
the definition of "Applicable Margin" and inserting in lieu
thereof the following new table:
"Debt Rating Applicable Margin
BB (or lower) 1.775%
BB+ 1.525%
BBB- 1.325%
BBB 1.250%
BBB+ 1.210%
A- (or higher) 1.175%"
(b) Section 1.1 of the Credit Agreement is
further amended by deleting the definition of "Maturity
Date" in its entirety and inserting in lieu thereof the
following new definition:
"Maturity Date" shall mean May 31, 2000,
unless extended as provided in Section 2.6(b), in which case
the Maturity Date shall mean May 30, 2001, May 30, 2002 or
November 5, 2002, as the case may be."
(c) Section 1.1 of the Credit Agreement is
further amended by inserting therein the following new
definitions in the appropriate alphabetical order:
"ABR Margin" shall mean, for each ABR Loan,
the applicable rate per annum set forth below based on the
respective Debt Rating:
Debt Rating ABR Margin
BB (or lower) 0.775%
BB+ 0.525%
BBB- 0.325%
BBB 0.250%
BBB+ 0.210%
A- (or higher) 0.175%
"Capital Expenditures" shall mean, with
respect to any Person, all expenditures (by the expenditure
of cash or the incurrence of Indebtedness) by such Person
during any measuring period for any fixed assets or
improvements or for replacements, substitutions or additions
thereto, that have a useful life of more than one year and
that are required to be capitalized under GAAP.
"Interest Coverage Ratio" shall mean the
ratio of (a) the sum of the following items related to the
Borrower's utility operations (excluding all non-cash
charges and credits related to FAS 5 and FAS 71, but
including all power costs when paid which are related to FAS
5 charges): net operating income, income taxes, amortization
and depreciation, less Capital Expenditures, to (b)
Borrower's net utility interest expense (whether cash or
noncash)."
(d) Section 2.3 of the Credit Agreement is
amended by deleting in its entirety the table appearing
therein and inserting in lieu thereof the following new
table:
"Debt Rating Facility Fee
BB (or lower) 0.725%
BB+ 0.650%
BBB- 0.550%
BBB 0.500%
BBB+ 0.475%
A- (or higher) 0.450%"
(e) Section 2.4(a) of the Credit Agreement is
amended and restated in its entirety to read as follows:
"(a) Subject to the provisions of Sections
2.3(c) and 2.4(c), each ABR Loan shall bear interest at a
rate per annum (computed on the basis of the actual number
of days elapsed over a year of 365 or 366 days, as the case
may be) equal to the ABR plus the ABR Margin."
(f) Section 2.6(b) of the Credit Agreement is
amended and restated in its entirety to read as follows:
"(b) So long as (i) no Default or Event of
Default has occurred and is continuing and (ii) there has
been no material adverse change in the business or financial
condition of the Borrower since June 2, 1999, then on each
of June 1, 2000, May 31, 2001 and May 31, 2002, the Borrower
may, at its option, upon not less than ninety (90) nor more
than one hundred eighty (180) days' prior written notice to
the Agent and subject to the approval of all of the Lenders,
extend the Maturity Date for an additional one-year period,
or if shorter until November 5, 2002."
(g) Section 2.9A of the Credit Agreement is
amended and restated in its entirety to read as follows:
"(a) If the Borrower issues First Mortgage
Bonds at any time after October 5, 1998, no later than the
Business Day following the date of receipt of the proceeds
thereof, the Borrower shall prepay the Loans in an amount
equal to all such proceeds, net of commissions and other
reasonable costs paid in connection therewith. In addition,
each Lender's Commitment shall be reduced permanently by an
amount equal to its Commitment Percentage multiplied by the
amount of such net proceeds.
(b) If at any time the commitment of
BankBoston, N.A. under the Receivables Purchase Agreement,
dated as of November 29, 1988, between the Borrower and
BankBoston, N.A. (as successor to The First National Bank),
as the same may be amended, supplemented or otherwise
modified from time to time, exceeds $17,000,000, each
Lender's Commitment shall be reduced permanently by an
amount equal to its Commitment Percentage multiplied by the
amount of such excess. If at any time the outstanding
balance of the Loans exceeds the aggregate Commitments,
Borrower shall immediately repay the Loans to the extent
required to eliminate such excess.
(c) Any prepayments made by the Borrower
pursuant to this Section 2.9A above shall be applied as
follows: first, to Fees, reimbursable expenses of the Agent
and any indemnity amounts to which any Secured Party is
entitled then due and payable by the Borrower pursuant to
any of the Loan Documents; second, to all interest then due
and payable on any outstanding Loans; and third, to the
principal balance of any outstanding Loans; provided that
outstanding ABR Loans shall be prepaid in full prior to the
prepayment of any outstanding Eurodollar Loans.
(d) Notwithstanding the foregoing
provisions of this Section 2.9A, if at any time the
mandatory prepayment of Loans required above would result in
the Borrower incurring breakage costs under Section 2.15 as
a result of Eurodollar Loans or Auction Advances being
prepaid other than on the last day of an Interest Period
applicable thereto (the "Affected Loans"), then the Borrower
may in its sole discretion initially deposit a portion (up
to 100%) of the amounts that otherwise would have been paid
in respect of the Affected Loans with the Agent (which
deposit, after giving effect to interest to be earned on
such deposit prior to the last day of the relevant Interest
Periods, must be equal in an amount to the amount of
Affected Loans not immediately prepaid) to be held as
security for the obligations of the Borrower hereunder
pursuant to a cash collateral agreement to be entered into
in form and substance reasonably satisfactory to the Agent,
with such cash collateral to be directly applied upon the
first occurrence (or occurrences) thereafter of the last day
of an Interest Period applicable to the relevant Loans that
are Eurodollar Loans or Auction Advances (or such earlier
date or dates as shall be requested by the Borrower), to
repay an aggregate principal amount of such Loans equal to
the Affected Loan not initially repaid pursuant to this
sentence. Notwithstanding anything to the contrary
contained in the immediately preceding sentence, all amounts
deposited as cash collateral pursuant to the immediately
preceding sentence shall be held for the sole benefit of the
Lenders whose Loans would have been immediately repaid with
the amounts deposited and upon the taking of any action by
the Agent or the Lenders pursuant to the remedial provisions
of Section 8.1, any amounts held as cash collateral pursuant
to this Section 2.9A(d) shall, subject to the requirements
of applicable law, be immediately applied to the relevant
Loans. Following repayment of the relevant Loans, any
remaining cash collateral will be returned to the Borrower."
(h) A new Section to the Credit Agreement is
hereby inserted immediately following Section 7.6, which
Section shall read as follows:
"SECTION 7.7 Interest Coverage Ratio. Permit
the Interest Coverage Ratio at the end of each calendar
quarter for the preceding four calendar quarters then ended
to be less than 1.50:1.00."
(i) Schedules 1 and 2 to the Credit Agreement are
amended by deleting such schedules in their entirety and
inserting in lieu thereof new schedules in the forms
attached hereto as Schedules 1 and 2, respectively.
3. Representations and Warranties. To induce the
Lending Group to enter into this Amendment, the Borrower
hereby represents and warrants that:
(a) The execution, delivery and performance by the
Borrower of this Amendment and the amended notes referred to
in Section 5(c) hereof (the "Amended Notes") and the
performance of the Amended Credit Agreement hereby have been
duly authorized by all necessary corporate and shareholder
action and (i) do not violate any Requirement of Law, (ii)
do not breach or result in an event of default under, or
otherwise violate the terms of, any indenture (including,
without limitation, the Indenture) or material agreement to
which the Borrower is a party or by which it or its property
is bound, (iii) will not result in or require the creation
of any Lien upon or with respect to any of its properties,
and (iv) do not require any consent or approval of any
creditor of the Borrower (including, without limitation, the
Indenture Trustee and the holders of the First Mortgage
Bonds).
(b) Each of this Amendment and the Amended Notes
has been duly executed and delivered by the Borrower.
(c) Each of this Amendment, the Amended Credit
Agreement and the Amended Notes are legal, valid and binding
obligations of the Borrower, enforceable against the
Borrower in accordance with their respective terms, subject
to (i) the effect of applicable bankruptcy, insolvency,
reorganization or moratorium or other similar laws affecting
the enforcement of creditors' rights generally, and (ii) the
application of general principles of equity (regardless of
whether considered in a proceeding in equity or at law).
(d) No Governmental Approvals are required for the
due execution, delivery and performance by the Borrower of
this Amendment, the Amended Credit Agreement and the Amended
Notes other than the approval or consent of the Vermont
Public Service Board and the approval of or waiver by the
Connecticut Department of Public Utility Control.
(e) There is no pending, or to the best of the
Borrower's knowledge, threatened action or proceeding
against the Borrower before any court, governmental agency
or arbitrator, which if adversely determined, could
reasonably be expected to materially adversely affect the
financial condition or results of operations of the Borrower
or that could otherwise materially adversely affect the
Borrower's ability to perform its obligations under any of
this Amendment, the Amended Credit Agreement or the Amended
Notes other than as described in the Borrower's Annual
Report on Form 10-K for the fiscal year ended December 31,
1998 and Form 10-Q for the fiscal quarter ended March 31,
1999.
(f) No Default or Event of Default has occurred
and is continuing, both before and after giving effect to
the execution and delivery of this Amendment and the Amended
Notes.
(g) The representations and warranties of the
Borrower contained in the Credit Agreement and each other
Loan Document shall be true and correct on and as of the
Amendment Effective Date with the same effect as if such
representations and warranties had been made on and as of
such date, except that any such representation or warranty
which is expressly made only as of a specified date shall be
true only as of such date.
4. No Other Amendments. Except as expressly
amended herein, each of the Credit Agreement and the other
Loan Documents shall be unmodified and shall continue to be
in full force and effect in accordance with its terms.
5. Effectiveness. This Amendment shall become
effective at such time on or after June 2, 1999 (the
"Amendment Effective Date") that each of the following
conditions have been satisfied in full in the judgment of
the Agent:
(a) Amendment. The Agent shall have received six
(6) original copies of this Amendment duly executed and
delivered by the Borrower, the Agent, the Syndication Agent
and the Lenders.
(b) Notes. Each Lender shall have received an
original Second Amended and Restated Revolving Loan Note,
payable to such Lender, duly executed by the Borrower,
substantially in the form of Schedule 2 to the Amended
Credit Agreement and duly completed in accordance with the
Amended Credit Agreement.
(c) Legal Opinions. The Agent shall have received
such legal opinions addressed to each of the Secured
Creditors as the Agent may reasonably request relating to
this Amendment and the Amended Credit Agreement, which
opinions shall be in form and substance, and from counsel,
reasonably acceptable to the Agent and its counsel.
(d) Board Resolutions and Incumbency Certificates
of Borrower. The Agent shall have received in form and
substance satisfactory to it a certificate of the Secretary
or an Assistant Secretary of Borrower certifying (i) the
resolutions adopted by the Borrower's Board of Directors
approving this Amendment and the transactions contemplated
hereby and (ii) the names and true signatures of the
authorized officers of Borrower.
(e) Articles of Incorporation; By-Laws and Good
Standing Certificates. The Agent shall have received in
form and substance satisfactory to it each of the following
documents:
(i) the certificate of incorporation of the
Borrower as in effect on the Amendment Effective Date,
certified by the Secretary of State or other appropriate
authority of the State of Vermont as of a recent date, and
the by-laws of the Borrower as in effect on the Amendment
Effective Date, certified by the Secretary, Assistant
Secretary or other appropriate officer of the Borrower; and
(ii) a good standing certificate for the
Borrower from the Secretary of State of the State of Vermont
as of a recent date.
(f) Approval. The Agent shall have received
evidence satisfactory to it and its counsel that the
Borrower has received the approval or consent of the Vermont
Public Service Board and the approval of or waiver by any
other state regulatory body with jurisdiction, in each case
required for (A) the increase in the interest rates and the
facility fee payable with respect to the Loans, (B) the
extension of the Maturity Date and (C) the other amendments
to the Credit Agreement, in each case effected hereby.
(g) Restructuring Fee. The Agent shall have
received, for the ratable benefit of the Lenders, a
restructuring fee in the amount of $100,000, which fee shall
be fully earned and nonrefundable as of the Amendment
Effective Date.
(h) Agency Fee. The Agent shall have received the
fee required to be paid on the Amendment Effective Date
pursuant to the Fee Letter, dated the date hereof, between
the Agent and the Borrower.
(i) Representations and Warranties. The
representations and warranties of the Borrower contained in
this Amendment shall be true and correct on and as of the
Amendment Effective Date.
6. Secured Obligations. After giving effect to
the amendments contemplated herein, the Secured Obligations
shall continue to be secured by the Mortgage and the
Security Agreement.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE
GOVERNED BY, AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.
8. Counterparts. This Amendment may be executed
by the parties hereto on any number of separate counterparts
and all of said counterparts taken together shall be deemed
to constitute one and the same instrument.
(SIGNATURE PAGE FOLLOWS)
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed and delivered as of the
day and year first above written.
CENTRAL VERMONT PUBLIC SERVICE CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President, Chief Financial Officer and Treasurer
TORONTO DOMINION (TEXAS), INC., as Agent
By:
Name:
Title:
TORONTO DOMINION (NEW YORK), INC.
By:
Name:
Title:
BANKBOSTON, N.A.
By:
Name:
Title:
FLEET NATIONAL BANK, as Syndication Agent and Lender
By:
Name:
Title:
CITIZENS BANK NEW HAMPSHIRE
By:
Name:
Title:
Schedule 1
COMMITMENTS OF THE LENDERS
Lender Address Commitment Commitment Percentage
Toronto Dominion 909 Fannin, $10,676,471 26.69%
(New York), Inc. Xxxxxxx, XX
00000
BankBoston, N.A. 000 Xxxxxxx Xx. 7,117,647 17.79%
Xxxxxx, XX
00000
Citizens Bank 00 Xxxx Xxxx Xx. 9,750,000 24.38%
Xxx Xxxxxxxxx Xxxxxxx, XX
00000
Fleet National One Federal St. 12,455,882 31.14%
Bank Xxxxxx, XX
00000
Total $40,000,000 100%
Exhibit A
Schedule 2 to CREDIT AGREEMENT
FORM OF SECOND AMENDED AND RESTATED REVOLVING LOAN NOTE
November 5, 1997
$XX,000,000 New York, New York
For value received, CENTRAL VERMONT PUBLIC
SERVICE CORPORATION, a Vermont corporation (the "Borrower"),
hereby unconditionally promises to pay on the Revolving Loan
Maturity Date to the order of [each Lender] (the "Lender"),
in lawful money of the United States of America and in
immediately available funds, a principal sum equal to
_____________________ Dollars ($XX,000,000.00) or, if less,
the aggregate unpaid principal amount of all Revolving Loans
made by the Lender to the Borrower under and pursuant to the
Credit Agreement dated as of November 5, 1997 (as amended,
supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, the lenders from
time to time party thereto, including the Lender, and
Toronto Dominion (Texas), Inc., as Agent (together with its
successors in such capacity, the "Agent"). The Borrower
further agrees to pay interest in like money on the unpaid
principal amount hereof from time to time outstanding at the
rates and on the dates determined in accordance with the
Credit Agreement. All payments of principal and interest
with respect to this Note shall be made by the Borrower at
the office of the Agent at 000 Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, or such other office as shall be from
time to time specified by the Agent to the Borrower.
The holder of this Note shall, and is hereby
irrevocably authorized by the Borrower to, endorse on the
Loan Schedule attached hereto and forming a part hereof (and
on separate continuations of such Loan Schedule which shall
be attached hereto and form a part hereof), or otherwise to
record on the Lender's internal records, appropriate
notations evidencing the date, Type and amount of each
Revolving Loan made under and pursuant to the Credit
Agreement, each continuation thereof, each conversion of all
or a portion thereof to another Type, the date and amount of
each payment or prepayment of principal of this Note which
is received by the Lender and, in the case of Eurodollar
Loans, the length of each Interest Period with respect
thereto, which recordation shall constitute prima facie
evidence of the accuracy of the information so recorded;
provided that failure by the Lender to make any such
notations or any error therein shall not affect any of the
Borrower's obligations in respect of this Note or obligate
the Borrower to pay any amounts in excess of the amounts
otherwise payable by the Borrower hereunder.
This Note is one of the Revolving Loan Notes
referred to in the Credit Agreement and any holder hereof is
entitled to all of the rights, remedies, benefits and
privileges provided for in the Credit Agreement, which,
among other things, contains provisions for the repayment
hereof and also for optional and mandatory prepayments
hereof under certain conditions. Upon the occurrence of any
one or more of the Events of Default specified in the Credit
Agreement, all amounts then remaining unpaid on this Note
shall become, or may be declared to be, immediately due and
payable, all as provided in the Credit Agreement.
The Borrower waives presentment, demand, protest,
notice of protest, notice of nonpayment or dishonor and all
other demands and notices in connection with the delivery,
acceptance, performance, default or enforcement of this Note
(other than such of the foregoing as are expressly required
by the terms of the Credit Agreement) and, to the fullest
extent permitted by applicable law, assents to any extension
or postponement of the time of payment or any other
indulgence, to any substitutions, exchange or release of
collateral and to the addition or release of any other party
or person, primarily or secondarily liable.
Terms defined in the Credit Agreement are used
herein as therein defined.
Payment of this Note is secured by the Security
Agreement and the Mortgage.
This Note amends and restates as of June 2, 1999
that certain Amended and Restated Revolving Loan Note dated
November 5, 1997 in the original principal amount of
[$______________] made by the Borrower in favor of the
Lender (the "Prior Note") and this Note is in substitution
and exchange for (but not in payment of) the Prior Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK DETERMINED
WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAW.
IN WITNESS WHEREOF, the Borrower has caused this
Revolving Loan Note to be duly executed and delivered under
seal by its officer thereunto duly authorized as of the date
hereof.
CENTRAL VERMONT PUBLIC SERVICE CORPORATION
By:
Name:
Title:
LOAN SCHEDULE TO REVOLVING LOAN NOTE
Loans, Conversions and Payments of ABR Loans
C>
Amount Amount Amount of Amount of Unpaid Notation
Date of ABR of ABR Loans Eurodollar Principal Made
Loans Principal Converted Loans Balance By
Repaid to Converted of ABR
Eurodollar to ABR Loans
Loans Loans
LOAN SCHEDULE TO REVOLVING LOAN NOTE
Loans, Conversions and Payments of Eurodollar Loans
Amount Amount Amount Interest Amount Unpaid Notation
of of of Period of ABR Principal Made
Date Eurodollar Principal Eurodollar for Loans Balance By
Loans Repaid Loans Eurodollar Converted of
Converted Loans to Eurodollar
to ABR Eurodollar Loans
Loans Loans
