GREEN MOUNTAIN POWER CORPORATION First Mortgage Bonds, 6.53% Series due August 1, 2036 BOND PURCHASE AGREEMENT Dated July 27, 2006
Exhibit
10.1
GREEN
MOUNTAIN POWER CORPORATION
$30,000,000
First
Mortgage Bonds, 6.53% Series due August 1, 2036
_______________________________
_______________________________
Dated
July 27, 2006
TABLE
OF CONTENTS
|
1.
|
Authorization
of Bonds
|
1
|
|
2.
|
Sales
and Purchase of Bonds
|
1
|
|
3.
|
Closing
|
1
|
|
4.
|
Conditions
to Closing
|
2
|
|
4.1. Conditions
to Purchaser’s Obligations
|
2
|
|
|
4.2. Conditions
to Company’s Obligation
|
4
|
|
|
5.
|
Representations
and Warranties, etc
|
4
|
|
5.1. Incorporation,
Standing, etc
|
4
|
|
|
5.2. Subsidiaries
|
5
|
|
|
5.3. Qualification
|
5
|
|
|
5.4. Business;
Financial Statements
|
5
|
|
|
5.6. Tax
Returns and Payments
|
6
|
|
|
5.7. Title
of Properties
|
6
|
|
|
5.8. Property
Subject to the Lien of the Indentures, etc.
|
6
|
|
|
5.9. Franchises,
etc.; Power Contracts
|
6
|
|
|
5.10. Litigation,
etc.
|
7
|
|
|
5.11. Compliance
with Other Instruments, etc.
|
8
|
|
|
5.12. Governmental
Consent
|
8
|
|
|
5.13. Offer
of Bonds
|
8
|
|
|
5.14. Use
of Proceeds
|
9
|
|
|
5.15. Federal
Reserve Regulations
|
9
|
|
|
5.16. Compliance
with ERISA
|
9
|
|
|
5.17. Foreign
Assets Control Regulations, etc.
|
10
|
|
|
5.18. Bonds
Comply with Indentures; Rank of Bonds
|
11
|
|
|
5.19. Disclosure
|
11
|
|
|
5.20. Indebtedness
|
11
|
|
|
6
|
Representations
and Warranties by Purchasers
|
11
|
|
6.1. Purchase
for Investment
|
11
|
|
|
6.2. Source
of Funds
|
12
|
|
|
7.
|
Accounting,
Financial Statements and Other Information
|
13
|
|
8.
|
Inspection
|
16
|
|
9.
|
Additional
Agreements of the Company
|
16
|
|
9.1. Home
Office Payment, etc.
|
16
|
|
|
9.2. Mutilated,
etc., Bonds
|
16
|
|
|
9.3. Power
Contracts
|
17
|
|
|
9.4. Denomination
of Bonds
|
17
|
|
|
9.5. Proration,
etc.
|
17
|
|
|
10.
|
Expenses,
etc
|
17
|
|
11.
|
Survival
of Representations and Warranties
|
18
|
|
12.
|
Notices,
etc.
|
18
|
|
13.
|
Substitution
of Xxxxxxxxx
|
00
|
|
00.
|
Exchange
of Bonds
|
18
|
|
15.
|
Miscellaneous
|
19
|
SCHEDULE
A Information
Relating to Purchasers
EXHIBIT
A Form
of
Supplemental Counsel for the Company
EXHIBIT
B1 Opinion
of Special Counsel for the Company
EXHIBIT
B2 Opinion
of Counsel for the Company
EXHIBIT
B3 Opinion
of Special Maine Counsel for the Company
EXHIBIT
B4 Opinion
of Special Massachusetts Counsel for the Company
EXHIBIT
B5 Opinion
of Special Counsel for the Purchasers
Green
Mountain Power Corporation
000
Xxxxx Xxxx
Xxxxxxxxxx,
Xxxxxxx 00000
First
Mortgage Bonds, 6.53% Series due August 1, 2036
July
27, 2006
TO
EACH
OF THE PURCHASERS LISTED IN
THE
ATTACHED SCHEDULE A
Dear
Sirs:
Green
Mountain Power Corporation, a Vermont corporation (the “Company”) agrees with
each of the purchasers listed in the attached Schedule A (such purchasers,
together, referred to herein as “you” or the “Purchasers” and individually as a
“Purchaser”) as follows:
1. Authorization
of Bonds.
The
Company has authorized the issue and sale of $30,000,000 aggregate principal
amount of its First Mortgage Bonds, 6.53% Series due August 1, 2036 (the
“Bonds”), to be issued under and secured as provided in the Company’s Indenture
of First Mortgage and Deed of Trust (the “Original Indenture”), dated as of
February 1, 1955, to The Bank of New York, as successor to United States Trust
Company of New York, successor to The Chase Manhattan Bank (National
Association), successor to The Chase National Bank of the City of New York,
as
trustee (the “Trustee”), as previously supplemented and modified by seventeen
supplemental indentures and as to be further supplemented and modified by an
Eighteenth Supplemental Indenture (the “Eighteenth Supplemental Indenture”), to
be dated as of July 1, 2006 and to be substantially in the form of Exhibit
A
attached hereto. As used herein, “Indenture” shall mean the Original Indenture,
as previously supplemented and modified by seventeen supplemental indentures
and
as further supplemented and modified by the Eighteenth Supplemental Indenture.
The Bonds shall be issuable in fully registered form only, shall mature on
August 1, 2036, shall bear interest at the rate of 6.53% per annum, payable
semi-annually on February 1 and August 1 of each year, commencing February
1,
2007, shall be subject to redemption as provided in the Eighteenth Supplemental
Indenture and shall be in the form established pursuant to the Eighteenth
Supplemental Indenture. As provided in the Eighteenth Supplemental Indenture,
the Bonds originally issued to you thereunder shall be dated, and shall bear
interest from, the date of their original issue on the date of the Closing
referred to in section 3. References to a “Schedule” or “Exhibit”, unless
otherwise specified, are to a Schedule or Exhibit to this
Agreement.
2. Sale
and Purchase of Bonds.
Subject
to the terms and conditions of this Agreement, the Company will issue and sell
to each Purchaser, and each Purchaser will purchase from the Company, in two
tranches at the Initial Closing and the Second Closing provided for in section
3, Bonds in the principal amount specified opposite such Purchaser’s name in
Schedule A at a purchase price equal to 100% of the face principal amount
thereof.
3. Closings.
The
sale of the Bonds to be purchased by you shall take place at the offices of
Hunton & Xxxxxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m.,
New York City time, in two installments (i) on August 3, 2006, or on such other
business day thereafter on or prior to August 31, 2006 as may be agreed upon
by
the Company and you (the "Initial Closing"), and (ii) on December 1, 2006,
or on
such other business day thereafter on or prior to December 31, 2006 as may
be
agreed upon by the Company and you (the "Second Closing" -- the Initial Closing
and the Second Closing being sometimes herein referred to collectively as the
"Closings" and each individually as a "Closing"). At each Closing, the
Company will deliver to each Purchaser the Bonds in the principal amount to
be
purchased by each Purchaser in the form of a single Bond (or such greater number
of Bonds as such Purchaser may request) dated the date of such Closing, duly
authenticated by the Trustee and registered in the name of such Purchaser (or
in
the name of its nominee), against delivery by such Purchaser to the Company
or
its order of immediately available funds in the amount of the purchase price
for
the Bonds being purchased by such Purchaser at such Closing. If at the Closing
the Company shall fail to tender such Bonds to you as provided in this section
3, or any of the conditions specified in section 4.1 shall not have been
fulfilled to your satisfaction, you shall, at your election, be relieved of
all
further obligations under this Agreement without thereby waiving any rights
you
may have by reason of such failure or such nonfulfillment.
4. Conditions
to Closing.
4.1. Conditions
to Purchaser’s Obligations.
Your
obligation to purchase and pay for the Bonds to be sold to you at each Closing
is subject to the fulfillment to your satisfaction, prior to or at each Closing,
of the following conditions:
(a) The
representations and warranties of the Company contained in this Agreement shall
be correct when made and at the time of such Closing, except as affected by
the
consummation of such transactions.
(b) The
Company shall have performed and complied with all agreements and conditions
contained in this Agreement required to be performed or complied with by it
prior to or at such Closing and at the time of such Closing the Indenture shall
be in full force and effect and no condition or event shall exist that
constitutes or that, after notice or lapse of time or both, would constitute
a
“default” (as defined in the Indenture).
(c) The
Company shall have delivered to you an Officers’ Certificate, dated the date of
such Closing, certifying that the conditions specified in subdivisions (a)
and
(b) of this section 4.1 have been fulfilled. As used in this Agreement, the
term
“Officers’ Certificate” shall mean a certificate executed on behalf of the
Company by its President or one of its Vice Presidents or its Controller and
its
Treasurer or its Assistant Treasurer or (solely with respect to the Officers’
Certificate delivered pursuant to this clause (c)) its General
Counsel.
(d) You
shall
have received from (i) Hunton & Xxxxxxxx, special counsel for the Company,
(ii) Xxxxxx X. Xxxxxxx, Xx., Esq., general counsel for the Company, (iii)
Xxxxxxx & Xxxx, special Maine counsel for the Company, (iv) Bulkey,
Xxxxxxxxxx and Xxxxxxx, special Massachusetts counsel for the Company, and
(v)
Xxxxxxxxx Traurig LLP, your special counsel in connection with the transactions
contemplated by this Agreement, favorable opinions substantially in the forms
set forth in Xxxxxxxx X0, X0, X0, X0 and B5, respectively, and covering such
other matters incident to such transactions as you may reasonably request,
each
addressed to you, dated the date of such Closing and otherwise satisfactory
in
substance and form to you.
(e) The
Company and the Trustee shall have duly authorized, executed and delivered
the
Eighteenth Supplemental Indenture and the Company shall have caused (i) the
Eighteenth Supplemental Indenture to have been recorded or filed prior to the
first Closing as a real estate mortgage in all places in the States of Vermont
and Maine and The Commonwealth of Massachusetts in which recording is necessary
to preserve and protect the lien of the Indenture upon any of the properties
of
the Company specifically described therein as subject to the lien of the
Indenture, (ii) all financing and continuation statements under the Uniform
Commercial Code with respect to the personal property described in the granting
clauses of the Indenture to have been duly filed in all places necessary to
perfect and protect the security interest granted by such Indenture to the
extent such security can be perfected by the filing of appropriate financing
statements, and (iii) all taxes, fees and other charges payable in connection
with the execution, delivery and filing of the Eighteenth Supplemental Indenture
and such financing and continuation statements and in connection with the issue
and sale Bonds to have been paid in full.
(f) There
shall have been issued by the Public Service Board (the “Board”) of the State of
Vermont an order consenting to the issuance and sale of the Bonds as
contemplated by this Agreement and such order shall be in full force and effect
and there shall have been filed with the Department of Telecommunications and
Energy of The Commonwealth of Massachusetts (the “MDTE”) a certification by the
Board of the Board’s jurisdiction concerning financing of the
Company.
(g) On
the
date of each Closing your purchase of and payment for the Bonds to be purchased
by you (i) shall be permitted by the laws and regulations of each jurisdiction
to which you are subject (but without recourse, in the case of any such
jurisdiction, to any provision (commonly referred to as a “basket” provision)
permitting the investment of an amount not to exceed a specified percentage
of
your admitted assets in investments other than those expressly permitted by
the
laws and regulations of such jurisdiction), (ii) shall not
violate any applicable law or regulation (including, without limitation,
Regulation G, T, U or X of the Board of Governors of the Federal Reserve System)
and (iii) not subject you to any tax, penalty or liability under or pursuant
to
any applicable law or regulation, which law or regulation was not in effect
on
the date hereof.
You
shall have received such evidence as you may reasonably request, including
an
Officers’ Certificate of the Company, to enable you to determine whether such
purchase is so permitted. The condition to closing contained in this subdivision
(g) with respect to each Closing will be deemed satisfied upon the occurrence
of
each Closing.
(h) All
corporate and other proceedings in connection with the transactions contemplated
by this Agreement, including all proceedings under the Indenture, and all
documents and instruments incident to such transactions shall be satisfactory
to
you and your special counsel, and you and your special counsel shall have
received all such counterpart originals or certified or other copies of such
documents as you or they may reasonably request.
(i) A
Private
Placement number issued by Standard & Poor's CUSIP Service Bureau (in
cooperation with the Securities Valuation Office of the National Association
of
Insurance Commissioners) shall have been obtained for the Bonds.
(j) The
Company shall not have changed its jurisdiction of incorporation or been a
party
to any merger or consolidation and shall not have succeeded to all or any
substantial part of the liabilities of any other entity, at any time following
the date of the most recent financial statements referred to in section
5.4.
4.2. Conditions
to Company’s Obligation.
The
obligation of the Company to issue, sell and deliver the Bonds to be purchased
by you under this Agreement shall be subject to the accuracy of your
representations contained in section 6 of this Agreement.
5. Representations
and Warranties, etc.
The
Company represents and warrants that:
5.1. Incorporation,
Standing, etc.
(a) The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Vermont and has all requisite corporate
power and authority to own and operate its properties, to carry on its business
as now conducted and as proposed to be conducted, to enter into this Agreement
and the Eighteenth Supplemental Indenture, to issue and sell the Bonds and
to
carry out the terms of this Agreement, the Indenture and the Bonds.
(b) This
Agreement, the Eighteenth Supplemental Indenture, the Bonds and each other
agreement and instrument executed and delivered by the Company in connection
with the issuance, sale and delivery of the Bonds (the “Transaction Documents”)
have been duly authorized by all necessary corporate action on the part of
the
Company, and this Agreement constitutes, and upon execution and delivery thereof
each Bond and each other Transaction Document will constitute, a legal, valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
(i)
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered
in
a proceeding in equity or at law).
5.2. Subsidiaries.
The
Company has no subsidiaries, as such term is defined in Regulation S-X of the
Securities and Exchange Commission (“Subsidiaries”), other than four
Subsidiaries, the assets and operations of which are not significant to the
financial or other condition or the operation of the business of the
Company.
5.3. Qualification.
The
Company is duly qualified and in good standing as a foreign corporation
authorized to do business in the State of Maine and The Commonwealth of
Massachusetts, which are the only jurisdictions in which the nature of its
activities or the character of the properties it owns or leases makes such
qualification necessary.
5.4. Business;
Financial Statements.
The
Company has delivered to you complete and correct copies of (a) its annual
report to stockholders for the fiscal year ended December 31, 2005 (the “Annual
Report”), (b) its annual report on Form 10-K for such fiscal year (the “Form
10-K”) as filed with the Securities and Exchange Commission (the “Commission”),
(c) its quarterly report on Form 10-Q for the quarter ended March 31, 2006
(the
“Quarterly Report”) as filed with the Commission, (d) its Current Reports on
Form 8-K dated June 22, 2006, June 19, 2006, May 25, 2006, May 3, 2006, April
5,
2006, March 7, 2006, March 2, 2006, March 1, 2006 and January 4, 2006
(collectively, the “8K Reports”) as filed in the Commission, and (e) a
memorandum dated July 5, 2006 prepared by Sovereign Securities Corporation,
LLC
(the "Placement Agent") for use in connection with the Company’s private
placement of the Bonds (such memorandum, including appendices thereto, is herein
called the “Memorandum”). The Annual Report, the Form 10-K, the Quarterly
Report, the 8-K Reports and the Memorandum are collectively called the "GMP
Disclosure Documents”. The Memorandum correctly describes, as of its date, the
business then conducted and proposed to be conducted by the Company. There
are
included in the Form 10-K consolidated financial statements of the Company and
its consolidated Subsidiaries for each of the fiscal years ended December 31,
2005 and 2004, accompanied in each case by the opinion thereon of Deloitte
&
Touché LLP, independent public accountants. All financial statements included in
the foregoing materials delivered to you (except as otherwise specified therein)
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods specified and present
fairly the financial position of the Company and its consolidated Subsidiaries
as of the respective dates specified and the results of their operations and
cash flow for the respective periods specified (subject, in the case of the
unaudited financial statements included in the Quarterly Report, to normal
year
end and audit adjustments).
5.5. Changes,
etc.
Since
December 31, 2005, (a) except for normal seasonal variations in the business
of
the Company, the occurrence of events described in the GMP Disclosure Documents
and the consummation of the transactions contemplated by this Agreement, there
has been no change in the assets, liabilities or financial condition of the
Company, other than changes which have not been, either in any case or in the
aggregate, materially adverse to the Company, (b) except for normal seasonal
variations in the business of the Company and the occurrence of events described
in the GMP Disclosure Documents, neither the business, operations or affairs
nor
any of the properties or assets of the Company have been affected by any
occurrence or development (whether or not insured against) which has been,
either in any case or in the aggregate, materially adverse to the Company and
(c) the Company has not directly or indirectly declared, ordered, paid, made
or
set apart any sum or property for any dividend or any purchase, redemption
or
other retirement of any shares of stock of the Company except as permitted
by
the Indenture. The Company has no material obligations or liabilities,
contingent or otherwise, except those (i) disclosed or adequately provided
for
by the financial statements mentioned in section 5.4, (ii) disclosed in the
GMP
Disclosure Documents, and (iii) relating to the consummation of the transactions
contemplated by this Agreement.
5.6. Tax
Returns and Payments.
The
Company has filed all tax returns required by law to be filed by it and has
paid
all taxes, assessments and other governmental charges levied upon it and any
of
its properties, assets, income or franchises which are due and payable, other
than those presently payable without penalty or interest. The Federal income
tax
liabilities of the Company have been finally determined by the Internal Revenue
Service and satisfied, or the time for audit has expired, for all fiscal periods
through December 31, 2001. The charges, accruals and reserves on the books
of
the Company in respect of Federal and state income taxes for all fiscal periods
are adequate in the opinion of the Company, and the Company knows of no unpaid
assessment for additional Federal or state income taxes for any
period.
5.7. Title
to Properties.
The
Company has title in fee simple, subject only to permitted encumbrances as
defined in the Indenture, to all the real estate described or referred to in
the
Indenture as being subject to the lien thereof, except (i) property heretofore
released from the lien of the Indenture in accordance with the terms thereof,
(ii) property held under leases and rights of way, easements, riparian rights,
flowage rights and property of a similar character, and (iii) certain other
properties, titles to which are subject to reservations, encumbrances and minor
defects in titles such as are customarily encountered in the public utility
business and which do not materially interfere with their use by the Company;
and the Company has good and marketable title, subject only to permitted
encumbrances as defined in the Indenture, to the other properties described
or
referred to in the Indenture as being subject to the lien thereof, except
property heretofore released from the lien of the Indenture in accordance with
the terms thereof.
5.8. Property
Subject to the Lien of the Indenture, etc.
(a) At
the
Closing, the physical properties and franchises described in, and subject to
the
lien of, the Indenture will include all the physical properties and franchises
owned by the Company on the date of the Closing and used or useful in its public
utility business, except (i) such property as may have been duly released from
the lien of the Indenture and (ii) certain other classes of property expressly
excepted in the Indenture, and such physical properties and franchises will
include substantially all of the physical properties and franchises from which
the consolidated operating revenues of the Company set forth in the income
statements referred to in section 5.4 were derived.
(b) At
the
Closing, the Indenture will constitute a valid first mortgage lien upon the
real
property then owned by the Company and described in the granting clauses of
the
Indenture other than classes of property expressly excepted in the Indenture,
subject only to permitted encumbrances under the Indenture, and a valid and,
to
the extent that it may be perfected by filing under the Uniform Commercial
Code,
perfected security interest in such of the personal property of the Company
as
is described in the Indenture.
(c) The
Company is not a party to or bound by any contract or agreement or subject
to
any charter, by-law or other contractual restriction which, in its opinion
materially and adversely affects, or insofar as the Company now foresees will
in
the future materially and adversely affect its business, operations, properties
or assets, or its financial condition.
5.9. Franchises,
etc.; Power Contracts.
(a) The
Company owns or possesses all franchises, permits, patents, trademarks, service
marks, trade names, copyrights, licenses and authorizations, and all other
operating rights, consents, authorizations and orders (collectively,
“Franchises”), and all rights with respect to the foregoing, necessary for the
conduct of its business as now conducted; all of such Franchises are valid
and
subsisting and contain no unduly burdensome restriction, condition or
limitation; and the Company is not in default in respect of any
thereof.
(b) Each
of
those agreements (the “Power Contracts”) for the purchase of power listed in the
Form 10-K under the caption “Power Resources” and in Note J of the Notes to the
Financial Statements contained in the Form 10-K, excluding those which, by
their
terms as stated in the Form 10-K, have expired, has been duly authorized,
executed and delivered by the Company and, to the best of the Company’s
knowledge, the other parties thereto and, except as disclosed in the Form 10-K,
is in full force and effect, with no default or breach existing thereunder
by
the Company or, to the best of the Company’s knowledge, by the other parties
thereto.
5.10. Litigation,
etc.
There
is no action, proceeding or investigation pending or, to the best of the
Company’s knowledge, threatened against the Company (a) which questions the
validity of this Agreement, the Indenture or the Bonds or any action taken
or to
be taken pursuant to this Agreement, the Indenture or the Bonds, or (b) except
as disclosed under the heading “Legal Proceedings” in, and in Note H of the
Notes to the Financial Statements contained in, the Form 10-K and under the
heading “Environmental Matters” in the Quarterly Report, which, so far as the
Company can now foresee, would have a substantial possibility of resulting
either in any case or in the aggregate, in any adverse change in the business,
operations, condition (financial or otherwise), properties or assets of the
Company or in any liability on the part of the Company which in any such case
would be material to the Company.
5.11. Compliance
with Other Instruments, etc.
The
Company is not in violation of, and the execution, delivery and performance
of
the Transaction Documents will not violate, any term of its Restated Articles
of
Association, as amended, or By-Laws, and is not in violation of, and will not
violate, any term of any agreement or instrument to which it is a party or
by
which it or any of its properties are bound or any term of any applicable law,
ordinance, rule or regulation of any governmental authority or any term of
any
applicable order, judgment or decree of any court, arbitrator or governmental
authority, except as disclosed in the Form 10-K and the Quarterly Report under
the caption “Environmental Matters,” the consequences of which violation, so far
as the Company can now foresee, would have a substantial possibility of having
a
materially adverse effect on the business, operations, condition (financial
or
otherwise), properties or assets of the Company; the execution, delivery and
performance of the Transaction Documents will not result in any violation of
or
be in conflict with or constitute a default under any such term or result in
the
creation of (or impose any obligation on the Company to create) any lien (except
for that created by the Indenture) upon any of the properties or assets of
the
Company pursuant to any such term.
5.12. Governmental
Consent.
No
consent, approval or authorization of, or declaration or filing with, any
governmental authority is required for the valid execution and delivery of
this
Agreement or the Eighteenth Supplemental Indenture or the valid offer, issue,
sale and delivery of the Bonds pursuant to this Agreement and the Eighteenth
Supplemental Indenture except (a) the issue of an order by the Board consenting
to the issuance and sale of the Bonds, (b) the recording and filing of the
Eighteenth Supplemental Indenture and financing statements pursuant to the
Indenture and (c) the filing with the MDTE of a certification (the
“Certification”) by the Board of the Board’s regulatory jurisdiction concerning
financing of the Company. An order in Docket No. 7184, dated July 13, 2006
(the
“Order”), consenting to the issuance and sale of the Bonds has been issued by
the Board, the Company has delivered to you complete and correct copies of
such
order and all supplements, amendments or other filings to or with the Order,
the
Order is in full force and effect, no proceeding has been instituted to review,
suspend, limit, restrict or revoke the Order and the Company has provided you
with a copy of a letter by the Department of Public Service of the State of
Vermont (the “VDPS”) waiving the right of the VDPS to institute any such
proceeding. The Certification has been filed with the MDTE and is in full force
and effect.
5.13. Offer
of Bonds.
Neither
the Company nor the Placement Agent, the only person acting on its behalf in
connection with the offering or sale of the Bonds or any similar securities
of
the Company, has directly or indirectly offered the Bonds or any part thereof
or
any similar securities for sale to, or solicited any offer to buy any of the
same from, or otherwise approached or negotiated in respect thereof with, anyone
other than you and other accredited investors. Neither the Company nor anyone
acting on its behalf will offer or sell the Bonds or any part thereof or any
similar securities so as to subject the issuance and sale of the Bonds to the
registration and prospectus delivery provisions of the Securities Act of 1933,
as amended (the “Securities Act”).
5.14. Use
of Proceeds.
The
Company will apply the net proceeds of the sale of the Bonds, subject to the
provisions of section 5.15, only (i) to partially fund additional capital
investment in Vermont Electric Power Company, which owns and operates the bulk
transmission system in Vermont, (ii) to repay $14,000,000 of first mortgage
bonds maturing in November and December 2006, and (iii) to repay short-term
bank
borrowings.
5.15. Federal
Reserve Regulations.
The
Company will not, directly or indirectly, use any of the proceeds of the sale
of
the Bonds for the purpose, whether immediate, incidental or ultimate, of buying
a “margin stock” or of maintaining, reducing or retiring any indebtedness
originally incurred to purchase a stock that is currently a “margin stock”, or
for any other purpose which might violate, in each case Regulation T, U or
X
issued by the Board of Governors of the Federal Reserve System, as at any time
amended (and any successor regulation or law to any thereof), and the Company
agrees to execute all instruments which may be necessary from time to time,
if
any, to comply with all the requirements of Regulation U of the Federal Reserve
System, as at any time amended. No indebtedness being reduced or retired out
of
the proceeds of the sale of the Bonds was incurred for the purpose of purchasing
or carrying any such “margin stock”.
5.16. Compliance
with ERISA.
(a) Neither
any employee pension benefit plan (within the meaning of section 3 of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) which is
or has been established or maintained or to which contributions are or have
been
made by the Company or any trade or business, whether or not incorporated,
which, together with the Company, is under common control, as described in
section 414(b) or (c) of the Internal Revenue Code of 1986, as amended (the
“Code”) (any such employee pension benefit plan being herein called a “Plan”),
nor any trust created under any Plan, has been terminated and for which the
Company had any liability that has not been satisfied in full. No material
liability of the Company to the Pension Benefit Guaranty Corporation or the
Internal Revenue Service has been or is expected by the Company to be incurred
with respect to any Plan which is or would be materially adverse to the
Company.
(b) The
execution and delivery of this Agreement and the Eighteenth Supplemental
Indenture and the issue and sale of the Bonds under the Indenture at the Closing
will not involve any transaction which is subject to the prohibitions of section
406 of ERISA or in connection with which a tax could be imposed pursuant to
section 4975 of the Code. The representation by the Company in the preceding
sentence is made in reliance upon and subject to the accuracy of your
representation in section 6.2 of this Agreement as to the source of the funds
used to pay the purchase price of the Bonds purchased by you.
(c) The
Company and each trade or business (whether or not incorporated) which is under
common control with the Company under Section 414(b), (c), (m) or (o) of the
Code (“ERISA Affiliate”) have operated and administered each Plan in compliance
with all applicable laws except for such instances of noncompliance as have
not
resulted in and could not reasonably be expected to result in a Material Adverse
Effect. Neither the Company nor any ERISA Affiliate has incurred any material
liability pursuant to Title I or IV of ERISA or the penalty or excise tax
provisions of the Code relating to employee benefit plans (as defined in Section
3 of ERISA), and no event, transaction or condition has occurred or exists
that
would reasonably be expected to result in the incurrence of any such liability
by the Company or any ERISA Affiliate, or in the imposition of any Lien on
any
of the rights, properties or assets of the Company or any ERISA Affiliate,
in
either case pursuant to Title I or IV of ERISA or to such penalty or excise
tax
provisions or to Section 401(a)(29) or 412 of the Code, other than such
penalties, taxes, liabilities or Liens as would not be individually or in the
aggregate material.
(d) The
present value of the aggregate accrued benefits under each of the Plans that
is
subject to Title IV of ERISA (other than Multiemployer Plans), determined as
of
the end of such Plan's most recently ended plan year on the basis of the
actuarial assumptions specified for funding purposes in such Plan's most recent
actuarial valuation report, did not exceed the aggregate current value of the
assets of such Plan allocable to such accrued benefits.
(e) Neither
the Company nor its ERISA Affiliates have participated in any Multiemployer
Plans, as defined in Section 3(37) of ERISA.
5.17. Foreign
Assets Control Regulations, USAPatriot Act, etc.
To the
best knowledge of the Company, neither the
issue
and sale of the Bonds by the Company nor its use of the proceeds thereof will
violate the Trading with the Enemy Act, as amended, the Foreign Assets Control
Regulations, the Transaction Control Regulations, the Cuban Assets Control
Regulations, the Foreign Funds Control Regulations or the Iranian Assets Control
Regulations of the United States Treasury Department (31 C.F.R., Subtitle B,
Chapter V, as amended) or any enabling legislation or executive order relating
thereto. The Company is not in violation of any law, rule, regulation
(including, without limitation under the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act,
the
Trading with the Enemy Act, the foreign assets control regulations of the United
States Treasury Department and Executive Order 13224 of September 23, 2001)
binding upon it.
5.18. Bonds
Comply with Indenture; Rank of Bonds.
The
Bonds, when issued and delivered, will comply with the provisions of the
Indenture and will be secured equally and ratably with all other bonds issued
under the Original Indenture and any indenture supplemental thereto (except
insofar as any sinking and improvement fund, depreciation fund or other fund
established in accordance with the provisions of the Indenture may afford
additional security for the bonds of any specific series).
5.19. Disclosure.
This
Agreement, the Memorandum and the other documents, certificates’ and instruments
delivered to you by or on behalf of the Company in connection with the
transactions contemplated by this Agreement, taken as a whole, do not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein, in light of the
circumstances in which they were made, not misleading. There is no fact known
to
the Company which materially adversely affects or in the future has a
substantial possibility (so far as the Company now foresees) of materially
adversely affecting the business, operations, condition (financial or
otherwise), properties or assets of the Company which has not been set forth
in
this Agreement or the Memorandum or in the other documents, certificates and
instruments delivered to you by or on behalf of the Company in connection with
the transactions contemplated by this Agreement.
5.20. Indebtedness.
Except
for the bonds issued under and pursuant to the Indenture, the Company has no
indebtedness other than as disclosed in the Memorandum, the Form 10-K and the
Quarterly Report. Neither the Company nor any Subsidiary is in default and
no
waiver of default is currently in effect, in the payment of any principal or
interest on any indebtedness of the Company or any Subsidiary and no event
or
condition exists with respect to any indebtedness of the Company or any
Subsidiary that would permit (or that with notice or the lapse of time, or
both,
would permit) one or more persons to cause such indebtedness to become due
and
payable before its stated maturity or before its regularly scheduled dates
of
payment.
6. Representations
and Warranties by Purchasers.
6.1. Purchase
for Investment.
Each
Purchaser represents that such Purchaser is purchasing the Bonds for its own
account or for one or more separate accounts maintained by such Purchaser or
for
the account of one or more pension to trust funds and not with a view to the
distribution thereof, provided that the disposition of such Purchaser’s or such
pension or trust fund’s property shall at all times be within such Purchaser’s
or such pension or trust fund’s control. Each Purchase represents that such
Purchaser is (and each separate account for which such Purchaser may be acting
is) an “accredited investor” described in Sections (1), (2), (3) or (7) of Rule
501(a) of Regulation D of the Securities Act and that it has the ability to
evaluate the merits and risks of an investment in the Bonds and the ability
to
assume the economic risks involved in such an investment. Each Purchaser
understands that the Bonds have not been registered under the Securities Act
and
may be resold only if registered pursuant to the provisions of the Securities
Act or if an exemption from registration is available, except under
circumstances where neither such registration nor such an exemption is required
by law, and that the Company is not required to register the Bonds. Each
Purchaser acknowledges that each Bond will contain a legend to the foregoing
effect and agrees that it will only transfer such Bonds in accordance with
the
transfer restrictions set forth in such legend.
6.2. Source
of Funds.
Each
Purchaser represents that at least one of the following statements is an
accurate representation as to each source of funds (a “Source”) to be used by
such Purchaser to pay the purchase price of the Bonds to be purchased by such
Purchaser hereunder:
(a) the
Source is an “insurance company general account” within the meaning of
Department of Labor Prohibited Transaction Exemption (“PTE”) 95-60 (issued July
12, 1995) and there is no employee benefit plan, treating as a single plan
all
plans maintained by the same employer or employee organization, with respect
to
which the amount of the general account reserves and liabilities for all
contracts held by or on behalf of such plan, exceeds ten percent (10%) of the
total reserves and liabilities of such general account (exclusive of separate
account liabilities) plus surplus, as set forth in the NAIC Annual Statement
for
such Purchaser most recently field with such Purchaser’s state of domcile;
or
(b) the
Source is either (i) an insurance company pooled separate account, within the
meaning of PTE 90-1 (issued January 29, 1990), or (ii) a bank collective
investment fund, within the meaning of the PTE 91-38 (issued July 12, 1991)
and,
except as such Purchaser has disclosed to the Company in writing pursuant to
this paragraph (b), no employee benefit plan or group of plans maintained by
the
same employer or employee organization beneficially owns more than 10% of all
assets allocated to such pooled separate account or collective investment fund;
or
(c) the
Source constitutes assets of an “investment fund” (within the meaning of Part V
of the QPAM Exemption) managed by a “qualified professional asset manager” or
“QPAM” (within the meaning of Part V of the QPAM Exemption), no employee benefit
plan’s assets that are included in such investment fund, when combined with the
assets of all other employee benefit plans established or maintained by the
same
employer or by an affiliate within the meaning of Section V(c)(1) of the QPAM
Exemption of such employer or by the same employee organization and managed
by
such QPAM, exceed 20% of the total client assets managed by such QPAM, the
conditions of Part I(c) and (g) of the QPAM Exemption are satisfied, neither
the
QPAM nor a person controlling or controlled by the QPAM (applying the definition
of “control” in Section V(e) of the QPAM Exemption) owns a 5% or more interest
in the Company and (i) the identity of such QPAM and (ii) the names of all
employee benefit plans whose assets are included in such investment fund have
been disclosed to the Company in writing pursuant to this paragraph (c);
or
(d) the
Source is a governmental plan; or
(e) the
Source constitutes assets of a "plan(s)" (within the meaning of Section IV
of
PTE 96-23 (the "INHAM Exemption")) managed by an "in-house asset manager" or
"INHAM" (within the meaning of Part IV of the INHAM Exemption), the conditions
of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the
INHAM nor a person controlling or controlled by the INHAM (applying the
definition of "control" in Section IV(d) of the INHAM Exemption) owns a 5%
or
more interest in the Company and (i) the identity of such INHAM and (ii) the
name(s) of the employee benefit plan(s) whose assets constitute the Source
have
been disclosed to the Company in writing pursuant to this clause (e);
or
(f) the
Source is one or more employee benefit plans, or a separate account or trust
fund comprised of one or more employee benefit plans, each of which has been
identified to the Company in writing pursuant to this paragraph (e);
or
(g) the
Source does not include assets of any employee benefit plan, other than a plan
exempt from the coverage of ERISA.
If
any
Purchaser or any subsequent transferee of the Bonds indicates that such
Purchaser or such transferee is relying on any representation contained in
paragraph (b), (c) or (e) above, the Company shall deliver on the date of the
applicable Closing and on the date of any applicable transfer a certificate,
which shall either state that (i) it is neither a party in interest nor a
“disqualified person” (as defined in Section 4975(e)(2) of the Code), with
respect to any plan identified pursuant to paragraphs (b) or (e) above, or
(ii)
with respect to any plan, identified pursuant to paragraph (c) above, neither
it
nor any “affiliate” (as defined in Section V(c) of the QPAM Exemption) has at
such time and during the immediately preceding one year, exercised the authority
to appoint or terminate said QPAM as manager of any plan identified in writing
pursuant to paragraph (c) above or to negotiate the terms of said QPAM’s
management agreement on behalf of any such identified plan. As used in this
Section 6.2, the terms “employee
benefit plan”,
“governmental
plan”,
“party
in interest”
and
“separate
account”
shall
have the respective meanings assigned to such terms in Section 3 of
ERISA.
7. Accounting,
Financial Statements and Other Information.
The
Company will maintain a system of accounting established and administered in
accordance with generally accepted accounting principles and will set aside
on
its books all such proper reserves as shall be required by generally accepted
accounting principles. The Company will deliver to you, so long as you shall
be
entitled to purchase Bonds under this Agreement or you or your nominee shall
be
the holder of any Bonds:
(a) within
60
days after the end of each of the first three quarterly fiscal periods in each
fiscal year of the Company, a consolidated balance sheet of the Company its
consolidated Subsidiaries as at the end of such period and the related
consolidated statements of income and cash flow, of the Company and its
consolidated Subsidiaries for such period and (in the case of the second and
third quarterly periods) for the period from the beginning of the current fiscal
year to the end of such quarterly period, setting forth in each case in
comparative form the consolidated figures for the corresponding periods of
the
previous fiscal year, all in reasonable detail and certified principal financial
officer of the Company as presenting fairly, in accordance with generally
accepted accounting principles applied (except as specifically set forth
therein) basis consistent with such prior fiscal periods, the information
contained therein, subject to changes resulting from normal year-end and audit
adjustments;
(b) within
120 days after the end of each fiscal year of the Company, a consolidated
balance sheet of the Company and its consolidated Subsidiaries as at the end
of
such year
and
the related consolidated statements of income and cash flow of the Company
and
its consolidated Subsidiaries for such fiscal year, setting forth in each case
in comparative form the consolidated figures for the previous fiscal year,
all
in reasonable detail and accompanied by the report thereon, not qualified as
a
result of limitations imposed
by the Company on the scope of the audit or as a result of nonconformity with
generally accepted accounting principles or auditing standards insofar as may
be
required by rule or order of any regulatory body having jurisdiction over the
Company, of Deloitte & Touche or other independent accountants of recognized
national standing selected by the Company;
(c) together
with each delivery of financial statements pursuant to subdivisions (a) and
(b)
of this section 7, an Officers’ Certificate stating that the signers have
reviewed the terms of this Agreement, the Indenture and the Bonds and have
made,
or caused to be made under their supervision, a review in reasonable detail
of
the transactions and condition of the Company and its Subsidiaries during the
accounting period covered by such financial statements and that such review
has
not disclosed the existence during or at the end of such accounting period,
and
that the signers do not have knowledge of the existence as at the date of the
Officers’ Certificate, of any condition or event (specifically including any
condition or event that would violate the provisions of section 1.04 of the
Eighteenth Supplemental Indenture) which constitutes or which, after notice
or
lapse of time or both, will constitute a “default” (as defined in the
Indenture), or, if any such condition or event exists, specifying the nature
and
period of existence thereof and what action the Company has taken or is taking
or proposes to take with respect thereto;
(d) together
with each delivery of consolidated financial statements pursuant to subdivision
(b) of this section 7, a written statement by the independent public accountants
giving the report thereon (i) stating that their audit examination has included
a review of the terms of this Agreement and of the Indenture and the Bonds
relate to accounting matters and (ii) stating whether, in the course of their
audit examination, they obtained knowledge (and whether, as of the date of
such
written statement, they have knowledge) of the existence of any condition or
event which constitutes or, with or without notice or lapse of time or both,
will, constitute a “default” (as defined in the Indenture), and, if so,
specifying the nature and period of existence thereof;
(e) promptly
upon receipt thereof, copies of all reports submitted to the Company by
independent public accountants in connection with each annual, interim special
audit of the books of the Company or any Subsidiary made by such accountants
(excluding confidential management reports and any letters, not made available
publicly, from the Company’s independent public accountants to management
commenting upon the Company’s internal accounting controls);
(f) promptly
upon their becoming available, copies of all financial statements, reports,
notices and proxy statements sent or made available generally by the Company
to
its public security holders, of all regular and periodic reports and all
registration statements and prospectuses (other than any registration statement
or prospectus relating to (i) the offering of securities of the Company to
stockholders of the Company pursuant to any dividend reinvestment and stock
purchase plan or (ii) the offering of securities of the Company or of interests
in an employee benefit plan to employees of the Company or any Subsidiary)
filed
by the Company or any Subsidiary with the Commission or any governmental
authority succeeding to any of its functions (other than any of the foregoing
or
any portion thereof as to which the Company shall have requested confidential
treatment from the Commission, unless and until the Commission shall have denied
such request) and of all press releases and other statements made available
generally by the Company to the public concerning material developments in
the
business of the Company and its Subsidiaries;
(g) with
reasonable promptness, such other information and data with to respect to the
Company or any of its Subsidiaries as from time to time may be reasonably
requested; and
(h) with
reasonable promptness, copies of all certificates, reports and other documents
and information delivered by the Company or that the Company causes to be
delivered to the Trustee customarily or periodically or pursuant to section
9.06(b), or 9.09 of the Indenture or that you may reasonably
request.
8. Inspection.
The
Company will permit any authorized representatives designated by you, so long
as
you shall be entitled to purchase Bonds under this Agreement or you or your
nominee shall be the holder of any Bonds, without expense to the Company, to
visit and inspect any of the properties of the Company or any of its
Subsidiaries, including its and their books of account, and to make copies
and
take extracts therefrom, and to discuss its and their affairs, finances and
accounts with its and their officers and independent public accountants (and
by
this provision the Company authorizes such accountants to discuss with such
representatives the affairs, finances and accounts of the Company and its
Subsidiaries), all at such reasonable times and as often as may be reasonably
requested. Any information relating to the Company and any Subsidiary obtained
by such inspection shall be considered confidential and you and your authorized
representatives shall maintain the confidentiality thereof, except (i) such
information as was in the public domain when so initially disclosed as evidenced
by publication or otherwise, or as thereafter becomes part of the public domain
independently of any act of the person performing such inspection, provided,
however, that such information did not or does not become part of the public
domain through the breach of any confidentiality obligation owing to the
Company, (ii) any information the disclosure of which is required by any
governmental entity or authority having or claiming jurisdiction over you or
to
the National Association of Insurance Commissioners or similar organizations
or
their successors, (iii) disclosure of information in compliance with the duly
issued order of any court, or (iv) of such information to the prospective
transferee in connection with any contemplated transfer by you of any
Bond.
9. Additional
Agreements of the Company.
9.1. Home
Office Payment, etc.
So long
as you or your nominee shall be the holder of any Bond, and notwithstanding
anything contained in such Bond and in the Indenture to the contrary, the
Company will pay, or cause the Trustee or any other paying agent appointed
by
the Company to pay, all sums becoming due on such Bond for principal, premium,
if any, and interest by the method and at the address specified for such purpose
in Schedule A, or at such other address as you shall have from time to specified
to the Company and the Trustee or other paying agent in writing for such
purpose, without the presentation or surrender of such Bond or the making of
any
notation thereon, except that any Bond paid or redeemed in full shall thereafter
be surrendered to the Trustee at its principal office. Prior to any sale or
other disposition of any Bond held by you or your nominee, you will make a
notation thereon of all principal payments previously made thereon and of the
date to which interest has been paid or, at your option, you will surrender
the
same to the Trustee in exchange for a Bond or Bonds aggregating the same
principal amount as the unpaid aggregate principal amount of the Bond
surrendered. The Company will extend, and will cause the Trustee to extend,
the
benefits of Section 1.02(B) of the Supplemental Indenture to any institutional
investor meeting the requirements of Section 15 hereof which is the direct
or
indirect transferee of any Bond purchased by you under this Agreement. The
Company will cause an executed or conformed copy of this Agreement to be filed
with the Trustee pursuant to the fourth paragraph of Section 10.04 of the
Original Indenture.
9.2. Mutilated,
etc., Bonds.
Notwithstanding any provision of the Indenture or the Bonds to the contrary,
if
any Bond of which you are the owner is mutilated, destroyed or lost, the
affidavit of your Treasurer or any Assistant Treasurer or any Securities Officer
setting forth the circumstances with respect to such mutilation, or loss shall
be accepted as satisfactory evidence thereof, and no charge, payment of
expenses, indemnity or security shall be required as a condition to the
execution and delivery by the Company and the authentication by the Trustee
of a
new Bond in replacement thereof other than your written agreement to indemnify
the Company and the Trustee under the Indenture.
9.3. Power
Contracts.
So long
as you or your nominee holds any of the Bonds, the Company will not (except
as
permitted by the Indenture) transfer or otherwise dispose of, or create or
incur
or permit to be created or incurred any mortgage, lien, charge or encumbrance
of
any kind upon, the right, title and interest of Company in and to any of the
Power Contracts or any other contracts for the purchase of power similar thereto
(the “Future Power Contracts”), provided
that the
Company may nonetheless (a) contract for the resale of energy or capacity
covered by such Power Contracts or Future Power Contracts to the extent not
deemed necessary to its retail customers’ needs, (b) create or incur or permit
to be created or incurred any mortgage, lien, charge or encumbrance of any
kind
upon the right, title and interest of the Company in and to any of such Power
Contracts or Future Power Contracts to extent not deemed necessary to its retail
customers’ needs, and (c) assign or otherwise transfer its rights to or
interests in any Future Power Contracts to any subsidiary or affiliate of the
Company. The Company may, in addition, without obtaining any consent or approval
from you, such nominee or such holder, modify, amend, supplement, terminate
or
replace any of said Power Contracts or Future Power Contracts, provided
that any
modification, amendment or replacement of or supplement to any of the Power
Contracts or the Future Power Contracts shall be deemed to be a Power Contract
or a Future Power Contract, respectively, and subject to the provisions of
the
first sentence of this section 9.3.
9.4. Denomination
of Bonds.
At any
time on request by you, the Company will exchange any Bond or Bonds held by
you
for another Bond or other Bonds, in such denominations as you may request,
equal
in aggregate principal amount to the aggregate principal amount of the Bond
or
Bonds then held by you at such time and surrendered by you to the Company.
Notwithstanding the preceding sentence, the Company shall have no obligation
to
issue, transfer, exchange or sell any Bond to you or any subsequent transferee
in a principal amount that is less than $500,000, unless you are selling all
of
the Bonds then held by you.
9.5. Proration,
etc.
The
Company will not modify or alter or permit the modification or alteration of
the
provisions of Section 1.02(B) of the Eighteenth Supplemental Indenture, or
your
rights or the obligations of the Company and the Trustee thereunder, unless
the
Company has received your express written consent to such modification or
alteration.
10. Expenses,
etc.
Whether
or not the transactions contemplated by this Agreement shall be consummated,
the
Company will pay all reasonable expenses in connection with such transactions
and in connection with any amendments or waivers requested by the Company
(whether or not the same become effective) under or in respect of this
Agreement, the Indenture or the Bonds, including, without limitation:
(a)
the
cost and expenses of preparing and reproducing this Agreement, the Eighteenth
Supplemental Indenture and the Bonds, of furnishing all opinions by counsel
for
the Company and all certificates on behalf of the Company, the cost of obtaining
the private placement number from Standard & Poor’s Corporation and of the
Company’s performance of and compliance with all agreements and conditions
contained herein on its part to be performed or complied with; (b) the fees
and
costs of the Trustee under the Indenture; (c) the cost of delivering to your
principal or custodian bank, insured to your satisfaction, any Bonds sold to
you
hereunder and delivered to you in physical form and delivered in physical form
upon any substitution or any exchange or transfer of the Bonds pursuant to
the
Indenture or section 14 and of your obtaining and delivering Bonds, insured
to
your satisfaction, upon any such substitution or exchange or transfer; (d)
the
fees and out-of-pocket costs of the Placement Agent, including the reasonable
fees, expenses and disbursements of its counsel in connection with such
transactions; (e) the reasonable fees, expenses and disbursements of your
special counsel in connection with such transactions and any such amendments
or
waivers; (f) the reasonable out-of-pocket expenses incurred by you in connection
with such transactions and any such amendments or waivers; (g) the costs and
expenses incurred in enforcing or defending (or determining whether or how
to
enforce or defend) any rights under this Agreement or the Bonds or in responding
to any subpoena or other legal process or informal investigative demand issued
in connection with this Agreement or the Bonds, or by reason of being a holder
of any Bond; and (h) the costs and expenses, including financial advisors’ fees,
incurred in connection with the insolvency or bankruptcy of the Company or
in
connection with any work-out or restructuring of the transactions contemplated
hereby and by the Bonds. The Company also will pay, and will save you and each
holder of any Bonds harmless from any and all liabilities with respect to any
taxes (including interest and penalties, but excluding taxes based on or
measured by your net income) which may be payable in respect of the execution
and delivery of this Agreement, the Eighteenth Supplemental Indenture, the
issue
of the Bonds and any amendment or waiver requested by the Company under or
in
respect of this Agreement, the Indenture or the Bonds.
11. Survival
of Representations and Warranties.
All
representations and warranties contained in this Agreement or made in writing
by
the Company in connection with the transactions contemplated by this Agreement
shall survive the execution and delivery of this Agreement and the Eighteenth
Supplemental Indenture, any investigation at any time made by you or on your
behalf, the purchase of the Bonds by you under this Agreement and any
disposition or payment of the Bonds. All statements contained in any certificate
or other instrument delivered by the Company pursuant to this Agreement or
in
the Memorandum or in connection with the transactions contemplated by this
Agreement shall be deemed representations and warranties of the Company under
this Agreement.
12. Notices,
etc.
Except
as otherwise provided in this Agreement, notices and other communications under
this Agreement shall be in writing and shall be delivered, or mailed by
registered or certified mail, postage prepaid, addressed, (a) if to you, at
the
address set forth in Schedule A or at such other address as you shall have
furnished to the Company in writing, except as otherwise provided in section
9.1
with respect to payments on Bonds held by you or your nominee, or (b) if to
any
other holder of any Bond, at such address as such other holder shall have
furnished to the Company in writing, or, until any such other holder so
furnishes to the Company an address, then to and at the address of the last
holder of such Bond who has furnished an address to the Company, or (c) if
to
the Company, at its address set forth at the beginning of this Agreement, to
the
attention of the General Counsel, or at such other address, or to the attention
of such other officer, as the Company shall have furnished to you in
writing.
13. Substitution
of Purchaser.
You
shall have the right to substitute any one of your “affiliates” (as defined in
the Indenture) as the purchaser of the Bonds which you have agreed to purchase
hereunder, by written notice to the Company, which notice shall be signed by
both you and such affiliate, shall contain such affiliate’s agreement to be
bound by this Agreement and shall contain a confirmation by such affiliate
of
the accuracy with respect to it of the representations set forth in section
6.
Upon receipt of such notice, wherever the word “you” is used in this Agreement
(other than in this section 13), such word shall be deemed to refer to such
affiliate in lieu of you. In the event that such affiliate is so substituted
as
a purchaser hereunder and such affiliate thereafter transfers to you all of
the
Bonds then held by such affiliate, upon receipt by the Company of notice of
such
transfer, wherever the word “you” is used in this Agreement (other than in this
section 13), such word shall no longer be deemed to refer to such affiliate,
but
shall refer to you, and you shall have all the rights of an original holder
of
the Bonds under this Agreement.
14. Exchange
of Bonds.
The
Company may require you, at the option and
sole
expense of the Company, to exchange any Bonds paid or redeemed in part for
such
denominations as you may request (subject to the provisions of section 9.4),
of
the appropriate aggregate unpaid principal amount, provided
that the
Company may require you to make such an exchange of partially paid or redeemed
Bonds only if (i) Company desires to use Bond Credits (as defined in the
Indenture) reflected by the portions of such Bonds that have been paid or
redeemed as a basis for the issuance bonds under the Indenture, and (ii) the
Trustee requires the exchange of such Bonds a condition to permitting the
Company to use the Bond Credits reflected by the paid or redeemed portions
of
such Bonds as a basis for the issuance of other bonds.
15. Miscellaneous.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
assigns of each of the parties hereto, including any of Bonds acquired by you
pursuant to this Agreement. Except as stated in section 11, this Agreement
embodies the entire agreement and understanding between you and the Company
and
supercedes all prior agreements and understandings relating to the subject
matter hereof. This Agreement shall be construed and enforced in accordance
with
and governed by the law of the State of New York. The headings in this Agreement
are for purposes of reference only and shall not limit or otherwise affect
the
meaning hereof. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one instrument.
(Remainder
of Page Intentionally Left Blank)
If
you
are in agreement with the foregoing, please sign the form of agreement on the
accompanying counterparts of this letter and return one of the same to the
Company, whereupon this letter shall become a binding agreement between you
and
the Company.
Very
truly yours,
GREEN
MOUNTAIN POWER CORPORATION
By: /s/Xxxxxx
X. Xxxxxxx, Xx.
Name:
Xxxxxx X. Xxxxxxx, Xx.
Title:
Vice President, General Counsel and Secretary
The
foregoing Agreement is hereby agreed to as of the date hereof.
CONNECTICUT
GENERAL LIFE INSURANCE COMPANY
By: CIGNA
Investments, Inc. (authorized agent)
By: /s/Xxxxx
X. Xxxx
Name: Xxxxx
X.
Xxxx
Title: Managing
Director
If
you
are in agreement with the foregoing, please sign the form of agreement on the
accompanying counterparts of this letter and return one of the same to the
Company, whereupon this letter shall become a binding agreement between you
and
the Company.
Very
truly yours,
GREEN
MOUNTAIN POWER CORPORATION
By: /s/Xxxxxx
X. Xxxxxxx, Xx.
Name:
Xxxxxx X. Xxxxxxx, Xx.
Title:
Vice President, General Counsel and Secretary
The
foregoing Agreement is hereby agreed to as of the date hereof.
HARTFORD
LIFE INSURANCE COMPANY
By: Hartford
Investment Management Company,
Its
Agent
and Attorney-in-Fact
By: /s/Xxxxxx
X. Xxxxxx
Name: Xxxxxx
X.
Xxxxxx
Title: Managing
Director
SCHEDULE
A
INFORMATION
RELATING TO PURCHASERS
|
Name
And Address Of Purchaser
Connecticut
General Life Insurance Company
Nominee
Name: CIG & Co.
c/o
CIGNA Investments, Inc.
Attention:
Fixed Income Securities, X00X
Xxxxxxxx,
XX 00000
Fax:
000-000-0000
Tax
Identification No. 00-0000000
(1) All
payments by wire transfer
of
immediately available funds to:
X.X.
Xxxxxx Chase Bank
BNF=CIGNA
Private Placements/AC=9009001802
ABA#
000000000
With
each payment identified as follows:
Green
Mountain Power Corporation
First
Mortgage Bonds,
6.53%
Series due August 1, 2036
PPN: 393154
AC 3
Principal
or Interest
(2) Address
for Notices Related to Payments:
CIG
& Co.
c/o
CIGNA Investments, Inc.
Attention:
Fixed Income Securities, X00X
Xxxxxxxx,
XX 00000
Fax:
000-000-0000
with
a copy to:
X.X.
Xxxxxx Xxxxx Bank
00000
Xxxxxx Xxxxxxx, 00xx
Xxxxx
Xxxxxx,
XX 00000
Attention:
Xxxxx Xxxx, Mail Code 300-116
Fax:
000-000-0000
(3) Address
for All Other Notices:
CIG
& Co.
c/o
CIGNA Investments, Inc.
Attention:
Fixed Income Securities, X00X
Xxxxxxxx,
XX 00000
Fax:
000-000-0000
|
Principal
Amount of
Bonds
to be Purchased
At
Initial Closing:
$3,500,000
$2,000,000
At
Second Closing:
$6,500,000
$3,000,000
|
Purchase
Price
At
Initial Closing:
$3,500,000
$2,000,000
At
Second Closing:
$6,500,000
$3,000,000
|
SCHEDULE
A
INFORMATION
RELATING TO PURCHASERS
|
Name
And Address Of Purchaser
Hartford
Life Insurance Company
Hartford
Investment Management Company
c/o
Investment Department-Private Placements
Regular
Mailing Address:
X.X.
Xxx 0000
Xxxxxxxx,
XX 00000-0000
Overnight
Mailing Address:
00
Xxxxxxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
Fax.:
000-000-0000
Tax
Identification No. 00-0000000
(1) All
payments by wire transfer
of
immediately available funds to:
XX
Xxxxxx Xxxxx
0
Xxx Xxxx Xxxxx
Xxx
Xxxx, XX 00000
Bank
ABA# 000000000
Chase
NYC/Cust
A/C#
000-0-000000 for F/C/T
G10056-LC2
Attn:
Bond Interest/Principal - Green
Mountain Power Corp. - 6.53% Due August 2036
PPN
# 393154 AC 3 Prin $______ Int $______
With
each payment identified as follows:
Green
Mountain Power Corporation
First
Mortgage Bonds,
6.53%
Series due August 1, 2036
PPN: 393154
AC 3
Principal
or Interest
(2) Address
for Notices Related to Payments:
Hartford
Investment Management Company
c/o
Portfolio Support
Regular
Mailing Address:
X.X.
Xxx 0000
Xxxxxxxx,
XX 00000-0000
Overnight
Mailing Address:
00
Xxxxxxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
Fax.:
000-000-0000/8876
(3) Address
for All Other Notices:
Hartford
Life Insurance Company
Hartford
Investment Management Company
c/o
Investment Department-Private Placements
Regular
Mailing Address:
X.X.
Xxx 0000
Xxxxxxxx,
XX 00000-0000
Overnight
Mailing Address:
00
Xxxxxxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
Fax.:
000-000-0000
|
Principal
Amount of
Bonds
to be Purchased
At
Initial Closing:
$5,500,000
At
Second Closing:
$5,000,000
$4,500,000
|
Purchase
Price
At
Initial Closing:
$5,500,000
At
Second Closing:
$5,000,000
$4,500,000
|
Exhibit
A
[FORM
OF EIGHTEENTH SUPPLEMENTAL INDENTURE]
