Contract
MOUNTAINEER GAS COMPANY |
TABLE OF CONTENTS |
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Section |
Page |
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1. |
AUTHORIZATION OF NOTES |
1 |
2. |
SALE AND PURCHASE OF NOTES |
1 |
3. |
CLOSING |
2 |
4. |
CONDITIONS TO CLOSING |
2 |
4.1 Representations and Warranties |
2 |
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4.2 Performance; No Default |
2 |
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4.3 Compliance Certificates |
2 |
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4.4 Opinions of Counsel |
3 |
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4.5 Purchase Permitted By Applicable Law, etc. |
3 |
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4.6 Sale of Other Notes |
3 |
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4.7 Payment of Special Counsel Fees |
3 |
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4.8 Private Placement Number |
3 |
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4.9 Changes in Corporate Structure |
4 |
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4.10 Regulatory Approvals |
4 |
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4.11 Payment of Outstanding Indebtedness |
4 |
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4.12 Proceedings and Documents |
4 |
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5. |
REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
4 |
5.1 Organization; Power and Authority |
4 |
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5.2 Authorization, etc. |
5 |
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5.3 Disclosure |
5 |
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5.4 Organization and Ownership of Shares of Subsidiaries |
5 |
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5.5 Financial Statements |
6 |
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5.6 Compliance with Laws, Other Instruments, etc. |
6 |
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5.7 Governmental Authorizations, etc. |
7 |
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5.8 Litigation; Observance of Statutes and Orders |
7 |
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5.9 Taxes |
7 |
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5.10 Title to Property; Leases |
7 |
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5.11 Licenses, Permits, etc. |
8 |
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5.12 Compliance with ERISA |
8 |
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5.13 Private Offering by the Company |
9 |
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5.14 Use of Proceeds; Margin Regulations |
9 |
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5.15 Existing Indebtedness |
9 |
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5.16 Foreign Assets Control Regulations, etc. |
9 |
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5.17 Status under Certain Statutes |
10 |
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5.18 Nature of Business |
10 |
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5.19 Environmental Matters |
11 |
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6. |
REPRESENTATIONS OF THE PURCHASER |
11 |
6.1 Purchase for Investment |
11 |
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6.2 Source of Funds |
11 |
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7. |
INFORMATION AS TO COMPANY |
12 |
7.1 Financial and Business Information |
12 |
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7.2 Compliance Certificates |
15 |
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7.3 Inspection |
15 |
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8. |
PREPAYMENT OF THE NOTES |
16 |
8.1 Required Prepayments |
16 |
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8.2 Optional Prepayments with Make-Whole Amount |
16 |
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8.3 Allocation of Partial Prepayments |
17 |
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8.4 Maturity; Surrender, etc. |
17 |
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8.5 Purchase of Notes |
17 |
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8.6 Make-Whole Amount |
18 |
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TABLE OF CONTENTS |
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Section |
Page |
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9. |
AFFIRMATIVE COVENANTS |
19 |
9.1 Compliance with Law |
19 |
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9.2 Insurance |
19 |
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9.3 Maintenance of Properties |
19 |
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9.4 Payment of Taxes |
20 |
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9.5 Corporate Existence, etc. |
20 |
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9.6 Gas Purchase Contracts |
20 |
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10. |
NEGATIVE COVENANTS |
20 |
10.1 Transactions with Affiliates |
20 |
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10.2 Merger, Consolidation, etc. |
20 |
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10.3 Indebtedness |
21 |
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10.4 Restricted Payments |
22 |
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10.5 Negative Pledge |
22 |
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10.6 Disposition of Assets |
23 |
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10.7 Issuance and Sale of Restricted Subsidiaries' Stock |
23 |
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10.8 Net Worth |
24 |
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10.9 Line of Business |
24 |
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11. |
EVENTS OF DEFAULT |
24 |
12. |
REMEDIES ON DEFAULT, ETC. |
26 |
12.1 Acceleration |
26 |
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12.2 Other remedies |
26 |
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12.3 Rescission |
27 |
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12.4 No Waivers or Election of Remedies, Expenses, etc. |
27 |
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13. |
REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES |
27 |
13.1 Registration of Notes |
27 |
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13.2 Transfer and Exchange of Notes |
28 |
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13.3 Replacement of Notes |
28 |
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14. |
PAYMENT OF NOTES |
28 |
14.1 Place of Payment |
28 |
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14.2 Home Office Payment |
29 |
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15. |
EXPENSES, ETC. |
29 |
15.1 Transaction Expenses |
29 |
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15.2 Survival |
30 |
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16. |
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE |
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AGREEMENT |
30 |
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17. |
AMENDMENT AND WAIVER |
30 |
17.1 Requirements |
30 |
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17.2 Solicitation of Holders of Notes |
30 |
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17.3 Binding Effect, etc. |
31 |
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17.4 Notes Held by Company |
31 |
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18. |
NOTICES |
31 |
19. |
REPRODUCTION OF DOCUMENTS |
32 |
20. |
CONFIDENTIAL INFORMATION |
32 |
21. |
SUBSTITUTION OF PURCHASER |
33 |
22 |
MISCELLANEOUS |
33 |
22.1 Successors and Assigns |
33 |
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22.2 Payments Due on Non-Business Days |
33 |
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22.3 Severability |
33 |
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22.4 Construction |
34 |
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22.5 Counterparts |
34 |
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22.6 Governing Law |
34 |
SCHEDULE A |
INFORMATION RELATING TO PURCHASES |
SCHEDUELE B |
DEFINED TERMS |
SCHEDULE 4.9 |
Changes in Corporate Structure |
SCHEDULE 5.3 |
Disclosure |
SCHEDULE 5.4 |
Organization and Ownership of Shares of Subsidiaries |
SCHEDULE 5.5 |
Financial Statements |
SCHEDULE 5.8 |
Litigation |
SCHEDULE 5.11 |
Licenses, Permits, etc. |
SCHEDULE 5.14 |
Use of Proceeds |
SCHEDULE 5.15 |
Existing Indebtedness and Liens |
SCHEDULE 5.19 |
Environmental Matters |
EXHIBIT 1.1 |
Form of 7.83% Senior Note, Class A, due October 31, 2009 |
EXHIBIT 1.2 |
Form of 8.09% Senior Note, Class B, due October 31, 2019 |
EXHIBIT 4.4(a) |
Form of Opinion of Special Counsel for the Company |
EXHIBIT 4.4 (b) |
Form of Opinion of Special Counsel for the Purchasers |
MOUNTAINEER GAS COMPANY |
000 Xxxxxxx Xxxxxx |
Charleston, WV 25301 |
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Ladies and Gentlemen: |
specified opposite its name in Schedule A. Your obligation hereunder and the obligations of the Other Purchasers under the Other Agreements are several and not joint obligations and you shall have no obligation under any Other Agreements and no liability to any Person for the performance or non-performance by any Other Purchaser thereunder. |
3. CLOSING. |
4. CONDITIONS TO CLOSING. |
(b) Secretary's Certificate. The Company shall have delivered to you a certificate certifying as to the bylaws and resolutions attached thereto and other corporate proceedings relating to the authorization, execution and delivery of the Notes, this Agreement ant the Other Agreements. |
4.4 Opinions of Counsel. |
4.5 Purchase Permitted By Applicable Law, etc. |
4.6 Sale of Other Notes. |
4.7 Payment of Special Counsel Fees. |
4.8 Private Placement Number. |
4.9 Changes in Corporate Structure. |
4.10 Regulatory Approvals. |
4.11 Payment of Outstanding Indebtedness. |
4.12 Proceedings and Documents. |
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. |
The Company represents and warrants to you that: |
5. 1 Organization; Power and Authority. |
paid and non-assessable and is owned beneficially and of recorded by Eastern Systems Corporation. |
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5.3 Disclosure. |
5.4 Organization and Ownership of Shares of Subsidiaries. |
(a) Schedule 5.4 is a complete and correct list of the Company's Restricted Subsidiaries and Unrestricted Subsidiaries, including Mountaineer Gas Services, Inc. ("MGS") and MAPCOM Systems, Inc. ("MAPCOM"), showing, as to each Subsidiary, the correct name thereof, the jurisdiction of its organization, and the percentage of shares of each class of its capital stock or similar equity interest outstanding owned by the Company and each other Subsidiary. |
(b) All of the outstanding shares of capital stock or similar equity interests of each Subsidiary shown in Schedule 5.4 as being owned by the Company and its Subsidiaries have been validly issued, are fully paid and no assessable and are owned by the Company or another Subsidiary free and clear of any Lien. |
(c) Each Subsidiary identified in Schedule 5.4 is a corporation or other legal entity duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, and is duly qualified as a foreign corporation or other legal entity and is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing would not individually or in the aggregate, reasonable be expected to have a Material Adverse Effect. Each such Subsidiary has the corporate or other power and authority and franchisees and governmental consents and approvals to own or hold under lease the properties it purports to own or hold under lease and to transact the business it transacts and proposes to transact. |
(d) No Subsidiary is a party to, or otherwise subject to, any legal restriction or agreement (other than this Agreement and the Other Agreements and customary limitations imposed by corporate law statutes) restricting the ability of such Subsidiary to pay dividends out of profits or make similar distributions of profits to the Company or any of its Subsidiaries that owns outstanding shares of capital stock or similar equity interest of such Subsidiary. |
5.5 Financial Statements. |
The Company has delivered to you copies of the financial statements of the company and its Subsidiaries listed on Schedule 5.5. All of said financial statements (including in each case the related schedules and notes) fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the respective dates specified in such Schedule and the consolidated results of their operations and cash flows for the respective periods so specified and have been prepared in accordance with GAAP consistently applied throughout the periods involved except as set forth in the notes thereto (subject, in the case of any interim financial statements, to normal year-end adjustments). |
5.6 Compliance with Laws, Other Instruments, etc. |
The execution, delivery and performance by the Company of this Agreement, the Other Agreements and the Notes will not (1) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan purchase or credit agreement, lease, corporate charter or by-laws, or any other Material agreement or instrument to which the Company or any Subsidiary is bound or by which the Company or any Subsidiary or any of their respective properties may be bound or affected, (ii) conflict with or result in a breach of any of the terms, conditions or provisions or any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to the Company or any Subsidiary, or (iii) violate any provision of any statue or other rule or regulation of any Governmental Authority applicable to the Company or any Subsidiary. |
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No consent, approval or authorization, or registration, filing or declarations with any Governmental Authority is required in connection with the execution delivery or performance by the Company of this Agreement and the Other Agreements or the issuances and sale by the Company of the Notes. |
5.8 Litigation; Observance of Statutes and Orders. |
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5.10 Title to Property; Leases. |
5.11 Licenses, Permits, etc. |
Except as disclosed in Schedule 5.11, the Company and each Subsidiary owns or possesses all licenses, permits, franchises, authorizations, patents, copyrights, service marks, trademarks and trade names, or rights thereto necessary for the present and planned future conduct of its business, without known conflict with the rights of others. |
5.12 Compliance with ERISA. |
(b) The present value of the aggregate benefit liabilities under each of the Plans (other than Multiemployer Plans), determined by the July 1, 1998 Actuarial Valuation Report prepared by Xxxxxxx X. Xxxxxx, Incorporated, did not exceed the aggregate current value of the assets of such Plan allocable to such benefit liabilities by more than 6 million in the case of any single Plan and by more than $6 million in the aggregate for all Plans. The term "benefit liabilities" has the meaning specified in section 4001 of ERISA and the terms "current value" and "present value" have the meaning specified in section 3 of ERISA. |
(c) The Company and its ERISA Affiliates have not incurred withdrawal liabilities (and are not subject to contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer Plans that individually or in the aggregate are Material. |
(d) The expected postretirement benefit obligation (determined as of the last day of the Company's most recently ended fiscal year in accordance with Financial Accounting Standards Board Statement No. 106, without regard to liabilities attributable to continuation coverage mandated by section 4980B of the Code) of the Company and its Subsidiaries is not Material. |
(e) The execution and delivery of this Agreement and the Other Agreements and the issuance and sale of the Notes hereunder and thereunder will not involve any transaction that is subject to the prohibitions of section 406 of ERISA or in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code. The representation by the Company in the first sentence of this Section 5.12(e) is made in reliance upon and subject to the accuracy of our representation in Section 6.2 of this Agreement and the similar representations of the other Purchasers in the Other Agreements as to the funds to be used to pay the purchase price of the Notes to be purchased by you. |
(e) Notice of Default or Event of Default - promptly and in any event within five days after a Responsible Officer becoming aware of the existence of any Default or Event of Default, a written notice specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto; |
(f) Notice of Claimed Default - immediately upon becoming aware that the holder of any Indebtedness or security of the Company or any Subsidiary has given notice or taken any other action with respect to a clamed default or event of default, a notice specifying the notice given or action taken by such holder, the nature of the claimed default or event of default and the action the Company is taking with respect thereto; |
(g) ERISA Matters - promptly, and in any event within five days after a Responsible Officer becoming aware of any of the following, a written notice setting forth the nature thereof and the action, if any, that the Company of an XXXXX Xxxxxxxxx proposes to take with respect thereto; |
(i) with respect to any Plan, any reportable event, as defined in section 4043(b) of ERISA and the regulations thereunder, for which notice thereof has not been waived pursuant to such regulations as in effect on the date hereof; or |
(ii) the taking by the PBGC of steps to institute, or the threatening by the PBGC of the institution of, proceedings under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by the company of any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by the PBGC with respect to such Multiemployer Plan; or |
(iii) any event, transaction or condition that could result in the incurrence of any liability by the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefits plans, or in the imposition of any Lien on any of the rights, properties or assets of the Company or any ERISA Affiliate pursuant to "Title I or IV of ERISA or such penalty or excise tax provisions, if such liability or Lien, taken together with any other such liabilities or Liens then existing, would reasonably be expected to have a Material Adverse Effect; |
(h) WVPSC Reports - promptly upon its becoming available, one copy of each annual report filed by the Company of any Subsidiary with the WVPSC; |
(i) Rate Orders - promptly upon their becoming available, one copy of (i) any notices received from Federal or state regulatory agencies relating to an order, ruling, statute or other law or any application or other presentation made by the Company or a Subsidiary to any such agency or other information which might have a Material Adverse Effect; and (ii) any decision or order of the WVPSC relating to a change in rates or a fuel adjustment clause or similar rate-setting mechanism for the Company; |
(j) Change of Control - not later than two Business Days after knowledge by a Responsible Officer that a Change of Control has occurred or is proposed to occur, a notice specifying (1) the date on which such Change of Control occurred or is expected to occur and |
describing such Change of Control in detail, and (2) that each holder of Notes may require prepayment of its Notes pursuant to Section 8.1; and |
(k) Requested Information - with reasonable promptness, such other data and information relating to the business, operations, affairs, financial conditions, assets or properties of the Company of any of its Subsidiaries or relating to the ability of the Company to perform its obligations hereunder and under the Notes as from time to time may be reasonably requested by any such holder of Notes. |
7.2 Compliance Certificates. |
(i) Covenant Compliance - the information (including detailed calculations) required in order to establish whether the Company was in compliance with the requirements of Section 10.3 through Section 10.6 and Section 10.8 hereof, inclusive, during the quarterly or annual period covered by the statements then being furnished ( including with respect to each such Section, where applicable, the calculations of the maximum or minimum amount, ratio or percentage, as the case may be, permissible under the terms of such Sections, and the calculation of the amount, ratio or percentage then in existence and the information required by Section 10.3 (d));and |
(ii) Default or Event of Default - statement that such officer has reviewed the relevant terms hereof and has made, or caused to be made, under this or her supervision, a review of the transactions and conditions of the Company and its Subsidiaries from the beginning of the quarterly of annual period covered by the statements then being furnished to the date of the certificate and that such review shall not have disclosed the existence during such period of any condition or event that constitutes a Default or an Event of Default of, if any such condition or event existed or exists (including, without limitation, any such event or condition resulting from the failure of the company or any Subsidiary to comply with any Environmental Law), specifying the nature and period of existence thereof and what action the company shall have taken or proposes to take with respect thereto. |
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(a) No Default - if not Default or Event of Default then exists, at the expense of such holder and upon reasonable prior notice to the Company, to visit the principal executive office of the Company or any Subsidiary, to discuss the affairs, finances and accounts of the Company and its Subsidiaries with the Company's or any Subsidiary's officers, and, with the consent of the Company (which consent will not be unreasonably withheld) to visit the other offices and properties of the company and each Subsidiary, all at such reasonable times and as often as may be reasonably requested in writing; and |
(b) Default - if a Default or Event of Default then exists, at the expense of the Company to visit and inspect any of the offices or properties of the Company of any Subsidiary, to examine all their respective books of account, records, reports and other papers, to make copies and extracts therefrom, and to discuss their respective affairs, finances and accounts with their respective officers and independent public accountants (and by this provision the Company authorizes said accountants to discuss the affairs, finances and accounts of the Company and its Subsidiaries), all at such times and as often as may be requested. |
8. PREPAYMENT OF THE NOTES. |
8.2 Optional Prepayments with Make-Whole Amount. |
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the date of the prepayment), setting forth the details of such computation. Two Business Days prior to such prepayment, the Company shall deliver to each holder of Notes a certificate of a Senior Financial Officer specifying the calculation of such Make-Whole Amount as of the specified prepayment date. |
8.3 Allocation of Partial Prepayments. |
8.4 Maturity; Surrender, etc. |
8.5 Purchase of Notes. |
8.6 Make-Whole Amount. |
"Called Principal" means, with respect to any Note, the principal of such Note that is to be prepaid pursuant to Section 8.2 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires. |
"Discounted Value" means, with respect to the Called Principal of any Note, the amount obtained by discounting all Remaining Scheduled Payments with respect to such Called Principal from their respective scheduled due dates to the Settlement Date with respect to such Called Principal, in accordance with accepted financial practice and at a discount factor (applied on the same periodic basis as that on which interest on the Notes is payable ) equal to the Treasury Rate with respect to such Called Principal. |
"Treasury Rate" means, with respect to the Called Principal of any Note, 0.50% over the yield to maturity implied by the yields reported, as of 10:00 A.M. (New York City time) on the second Business Day proceeding the Settlement Date with respect to such Called Principal for actively traded U.S. Treasury Securities having a constant maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date (as shown on page "USD" of the Bloomberg Financial Markets Service or such other display as may replace the Bloomberg Financial Markets Service); provided, however, that if there is no U.S. Treasury security for which a weekly average yield is given which has a constant maturity equal to the Remaining Average Life of the Notes, the Treasury Rate shall be obtained by interpolating linearly between (1) the U.S. Treasury security for which a weekly average yield is given with the duration closets to and greater than the Remaining Average Life and (2) the U.S. Treasury security for which a weekly average yield is given with the duration closest to and less than the Remaining average Life, except that if the Remaining Average Life is less than one year, the weekly average yield on actively traded U.S. Treasury securities adjusted to a constant maturity of one year shall be used. |
"Remaining Average Life" means, with respect to any Called Principal, the number of years (calculated to the nearest one-twelfth year) obtained by dividing (i) such Called Principal into (ii) the sum of the products obtained by multiplying (a) the principal component of each Remaining Scheduled Payment with respect to such Called Principal by (b) the number of years (calculated to the nearest on-twelfth year) that will elapse between the Settlement Date with respect to such Called Principal and the schedule due date of such Remaining Scheduled Payment. |
"Remaining Scheduled Payments" means, with respect to the Called Principal of any Note, all payments of such Called Principal and interest thereon that would be due after the Settlement Date with respect to such Called Principal if no payment of such Called Principal were made prior to its scheduled due date, provided that if such Settlement Date is not a date on which interest payments are due to be made under the terms of the Notes, then the amount of the next succeeding scheduled interest payment will be reduced by the amount of interest accrued to such Settlement Date and required to be paid on such Settlement Date pursuant to Section 8.2 or 12.1. |
"Settlement Date" means, with respect to the Called Principal of any Note, the date on which such Called Principal is to be prepaid pursuant to Section 8.2 or has become or is declared to be immediately due and payable pursuant to Section 12.1 as the context requires. |
9. AFFIRMATIVE COVENANTS. |
9.1 Compliance with Law. |
9.2 Insurance. |
9.3 Maintenance of Properties. |
9.4 Payment of Taxes. |
9.5 Corporate Existence, etc. |
9.6 Gas Purchase Contracts. |
10. NEGATIVE COVENANTS. |
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10.2 Merger, Consolidation, etc. |
(2) immediately before and after giving effect to such transaction or series of transactions (including any Indebtedness incurred in connection therewith ), no Default or Event of Default shall have occurred and be continuing; and |
(3) immediately after giving effect to such transaction or series of transactions, the Company of the Surviving Entity, as the case may be, could incur $1.00 of additional Consolidated Funded Indebtedness pursuant to Section 10.3. |
No such conveyance, assignment, transfer lease of other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries shall have the effect of releasing the Company or any successor corporation that shall theretofore have become such in the manner prescribed in this Section 10.2 from its liability under this Agreement of the Notes. |
(b) The Company shall not permit any Restricted Subsidiary to consolidate with or merge into any other corporation or sell, convey, assign transfer, lease or otherwise dispose of all or substantially all of its assets except as permitted by Section 10.2 (a). |
10.3 Indebtedness. |
(a) The Company will not directly or indirectly become liable for, create, issue, assume, guarantee, renew or extend any Funded Indebtedness (other than the Notes) unless; |
(i) immediately after giving effect to the incurrence of such Funded Indebtedness and the application of the proceeds therefrom and taking account of the Indebtedness evidenced by the Notes and the Other Notes, the ratio of consolidated Funded Indebtedness to Total Capitalization of the company and its Restricted Subsidiaries on a consolidated basis will not exceed 0.65 to 1.00; and |
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(b) The Company will not permit any Restricted Subsidiary to become liable for, create, issue assume, guarantee, renew or extend, directly or indirectly, any Indebtedness. |
(c) The Company will not directly or indirectly become liable for, create, issue, assume, guarantee, renew or extend any Indebtedness if in connection therewith, the Company must agree to a limitation on Restricted Payments that is more restrictive than the provisions of Section 10.4. |
(d) The Company will either (i) have no Current Debt outstanding on any day during a period of at least thirty consecutive days during each period of twelve consecutive months, or (ii) there shall be a period of thirty consecutive days during each twelve month period when the Company would be entitled to incur at least $1.00 of additional Funded Indebtedness under Section 10.3(a) if, for purposes of the test provided in clause (i) of Section 10.3(a), consolidated Funded Indebtedness included the average balance of Current Debt outstanding during such thirty-day period plus the highest balance of Funded Indebtedness of the Company outstanding on any day during such thirty-day period. Each quarterly compliance certificate delivered pursuant to Section 7.2(b) shall designate the most recent thirty-day period during which the Company satisfied the requirements of this Section 10.3(d) and the average balance of Current Debt, if any, outstanding during such thirty-day period. If during such thirty-day period Current Debt was outstanding, an amount of Current Debt equal to the average balance during such period shall be included in Funded Indebtedness of the Company for all purposes of this Agreement until the Company next satisfies the requirements of this Section by having no Current Debt outstanding for at least thirty consecutive days. |
10.4 Restricted Payments. |
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10.5 Negative Pledge. |
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(1) Liens securing the payment of taxes, assessments or governmental charges or levies is or the demands of suppliers, mechanics carriers, warehousers, landlords and other like Persons, provided that (A) such Liens do not in the aggregate materially reduce the value of any properties subject to the Liens or materially interfere with their use in the ordinary conduct of the owning company's business and (B) all claims which the Liens secure are not yet due or are being actively contested in good faith and by appropriate proceedings and for which such owning company has established adequate reserves in accordance with GAAP; |
(2) Liens incurred or deposits made in the ordinary course of business (A) in connection with worker's compensation, unemployment insurance, social security and other like laws, or (B) to secure the performance of letters of credit, bids, tenders, sales, contracts, leases, statutory obligations, surety, appeal and performance bonds and other similar obligations, in each case not incurred in connection with the borrowing of money, the obtaining of advances or the payment of the deferred purchase price of property; |
(3) attachment, judgment and other similar Liens arising in connection with court or regulatory proceedings, provided that (A) execution and other enforcement are effectively stayed, (B) all claims which the Liens secure are being actively contested in good faith and by appropriate proceedings, and (C) adequate book reserve been established with respect thereto; |
(4) mechanics', workmens', materialmens', construction and other similar liens arising in the ordinary course of business or incident to the construction or improvement of any property, provided that the obligations which those Liens secure are not yet due; |
(5) Liens identified in Schedule 5.15 existing on the date hereof, provided that the Indebtedness secured by such Lines shall not be increased or renewed and the time for repayment of such Indebtedness shall not be extended; |
(6) Purchase Money Mortgages or conditional sale, Capital Lease, sale/lease back or other title retention agreements or other Liens incurred, taken subject to or assumed in connection with the purchase, lease, improvement or construction of property or to secure Indebtedness incurred solely for the purpose of financing the acquisition, lease, construction or improvement of any such property to be subject to such mortgages, agreements or other Liens; provided, however, that (A) such property is to be used in the business of the Company or its Restricted Subsidiaries, (B) the Indebtedness secured by any such Lien is permitted by Section 10.3 and does not exceed 80% of the lesser of the purchase price or the fair market value of the property subject to such Lien, and (C) no such Lien shall extend to or cover not originally subject thereto, other than improvements to the property originally subject thereto; and |
(7) Liens securing an aggregate amount of Funded Indebtedness, in addition to that permitted by paragraph (6), which is incurred as permitted by Section 10.3 and does not exceed 5% of consolidated Net Tangible Assets. |
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Neither the Company nor any Restricted Subsidiary will not otherwise dispose of any Indebtedness owned by it or any shares owned by it of the stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into stock) of a restricted Subsidiary (said stock, options, warrants and other Securities herein called "Subsidiary Stock"), nor will any Restricted Subsidiary issue, sell or other wise dispose of any shares of its own Subsidiary Stock, except to the Company of a Wholly-Owned Restricted Subsidiary; provided that the foregoing restrictions do not apply to the issue of directors' qualifying shares. |
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10.9 Line of Business. |
11. EVENTS OF DEFAULT. |
(a) the Company defaults in the payment of any principal, interest or Make-Whole Amount, if any, on any Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise or; |
(b) the Company defaults in the performance of or compliance with any term contained in Section 7.1(e), (f) or (j) or Section 10.1 through Section 10.9; or |
(c) the Company defaults in the performance of or compliance with any term contained herein (other than those referred to in paragraphs (a) and (b) of this Section 11) and such default is not remedied within 30 days after the earlier of (i) a Responsible Officer obtaining actual knowledge of such default and (ii) the Company receiving written notice of such default from any holder of a Note (any such written notice to be identified as a "notice of default" and to refer specifically to this paragraph (c) of Section 11); or |
(d) any representation or warranty made in writing by or on behalf of the Company or by any officer of the Company in this agreement or any Other Agreement or in any writing furnished in connection with the transactions contemplated here by proves to have been false or incorrect in any material respect on the date as of which made; or |
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(f) (i) the Company or any Restricted Subsidiary is in default (as principal or as guarantor or other surety) in the payment of any principal of or premium or make-whole amount or interest on any Indebtedness that is outstanding in an aggregate principal amount of at least $5,000,000 beyond any period of grace provided with respect thereto, or (ii) the company or any Restricted Subsidiary is in default in the performance of or compliance with any term of any evidence of any Indebtedness in an aggregate outstanding principal amount of at least $5,000,000 or of any mortgage, indenture or other agreement relating thereto or any other condition exists, and as a consequence of such default or condition such Indebtedness has become or has been declared due and payable, or any holder of such Indebtedness or a trustee is permitted to declare such Indebtedness to be due and payable, before its stated maturity or before its regularly schedule dates of payment; or |
(g) the Company or any Restricted Subsidiary (i) is generally not paying, or admits in writing its inability to pay, its debts as they become due, (ii) files, or consents by answer or otherwise to the filing against it or, a petition for relief or reorganization or arrangement or any other petition in bankruptcy ,for liquidation or to take advantage of any bankruptcy or, insolvency, reorganization, moratorium or other similar law of any jurisdiction, (iii) makes an assignment for the benefit of its creditors, |
(h) a court or governmental authority of competent jurisdiction enters an order appointing, without consent by the Company or any of its Restricted Subsidiaries a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, or constituting an order for relief or approving a petition for relief or reorganization or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution , winding-up or liquidation of the Company or any of its Restricted Subsidiaries, or any such petition shall be filed against the Company or any of its Restricted Subsidiaries and such petition shall not be dismissed with 60 days or |
(i) a final judgment or judgments for the payment of money aggregating in excess of $500,000 are rendered against one or more of the Company and its Restricted Subsidiaries and such judgments are not, within 30 days after entry thereof, bonded discharged or stayed pending appeal, or are not discharge within 30 days after the expiration of such stay; or |
(j) if (i) any Plan shall fail to satisfy the minimum funding standards of ERISA or the Code for any plan year or part thereof or a waiver of such standards or extension off any amortization period is sought or granted under section 412 of the Code, (ii) a notice of intent to terminate any Plan shall have been or is reasonably expected to be filed with the PBGC or the PBGC shall have instituted proceedings under ERISA section 4042 to terminate or appoint a trustee to administer any Plan or the PBGC shall have notified the company of any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the aggregate "amount |
of unfounded benefit liabilities" (within the meaning of section 4001(a)(18) of ERISA) under all Plans determined in accordance with title IV of ERISA shall exceed $10,000,000, (iv) the Company or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, (v) the Company or any ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) the Company or any Subsidiary establishes or amends any employee welfare benefit plan that provides post-employment welfare benefits in a manner that would increase the liability of the Company or any Subsidiary thereunder, and any such event or events described in clauses (i) through (vi) above, either individually or together with any other such event or events would reasonably be expected to have a Material Adverse Effect, unless such event or events are required by law. |
As used in Section 11(j), the terms "employee benefit plan" and "employee welfare benefit plan" shall have the respective meanings assigned to such items in Section 3 of ERISA. |
12. REMEDIES ON DEFAULT, ETC. |
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(b) If any other Event of Default (other than an Event of Default described in paragraph (a) of Section 11) has occurred and is continuing, any holder or holders of more than 50% in principal amount of the Notes at the time outstanding may at any time at its or their option, by notice or notices to the Company, declare all the Notes then outstanding to be immediately due and payable. |
(c) If any Event of Default described in paragraph (a) of Section 11 has occurred and is continuing, any holder or holders of Notes at the time outstanding affected by such Event of Default may at any time, at its or their option, by notice or notices to the Company, declare all the Notes held by it or them to be immediately due and payable. |
Upon any Notes becoming due and payable under this Section 12.1, whether automatically or by declaration, such Notes will forthwith mature and the entire unpaid principal amount of such Notes, plus (x) all accrued and unpaid interest thereon and (y) the Make-Whole Amount determined in respect of such principal amount (to the full extent permitted by applicable law), shall all be immediately due and payable, in each and every case without presentment, demand, protest or further notice, all of which are hereby waived. The Company acknowledges, and the parties hereto agree, that each holder of a Note has the right to maintain its investment in the Notes free from repayment by the Company (except as herein specifically provided for) and that the provision for payment of a Make-Whole Amount by the Company in the event that the Notes are prepaid or are accelerated as a result of an event of default, is intended to provide compensation for the deprivation of such right under such circumstances. |
12.2 Other remedies. |
If any Default or Event of Default has occurred and is continuing and irrespective of whether any Notes have become or have been declared immediately due and payable under Section 12.1, the holder of any Note at the time outstanding may proceed to protect and enforce the rights of such holder by an action at law, suit in equity or other appropriate proceeding, whether for the specific performance of any agreement contained herein or in any Note, or for an injunction against a violation of any of the terms hereof or thereof, or in aid of the exercise of any power granted hereby or thereby or by law or otherwise. |
12.3 Rescission. |
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12.4 No Waivers or Election of Remedies, Expenses, etc. |
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES. |
13.1 Registration of Notes. |
promptly upon request therefor, a complete and correct copy of the names and addresses of all registered holders of Notes. |
13.2 Transfer and Exchange of Notes. |
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13.3 Replacement of Notes. |
Upon receipt by the Company of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Note (which evidence shall be, in the case of an Institutional Investor, notice from such Institutional Investor of such ownership and such loss, theft, destruction or mutilation), and |
(a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it provided that if the h older of such Notes is, or is a nominee for, an original Purchaser or an Institutional Investor, such Person's own unsecured agreement of indemnity shall be deemed to be satisfactory), or |
(b) in the case of mutilation, upon surrender and cancellation thereof, the Company at its own expense shall execute and deliver, in lieu thereof, a new Notes, dated and bearing interest from the date to which interest shall have been paid on such lost, stolen, destroyed or mutilated Note or dated the date of such lost, stolen, destroyed or mutilated Note if no interest shall have been paid thereon. |
14. PAYMENT OF NOTES. |
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principal office of the Company in such jurisdiction. The Company may at any time, by notice to each holder of a Note, change the place of payment of the Notes so long as such place of payment shall be either the principal office of the company in the United States or the principal office of a bank or trust company in the United States. |
14.2 Home Office Payment. |
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15.2 Survival. |
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT. |
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(b) Payment. The Company will not directly or indirectly pay or cause to be paid any remuneration, whether by way of supplemental or additional interest, fee or otherwise, or grant any security, to any holder of Notes as consideration for or as an inducement to the entering into by any holder of Notes or any waiver or amendment of any of the terms and provisions hereof unless such remunerations concurrently paid, or security is concurrently granted, on the same terms, ratably to each holder of Notes then outstanding even if such holder did not consent to such waiver or amendment. |
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17.4 Notes Held by Company, etc." |
18. NOTICES. |
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(ii) if to any other holder of any Note, to such holder at such address as such other holder shall have specified to the Company in writing, or |
(iii) if to the Company, to the Company at its address set forth at the beginning hereof to the attention of Xxxxxxx X. Xxxxxxxx, President, or at such other address as the Company shall have specified to the holder or each Note in writing. |
Notices under this Section 18 will be deemed given only when actually received. |
19. REPRODUCTION OF DOCUMENTS. |
20. CONFIDENTIAL INFORMATION |
to effect compliance with any law, rule, regulation or order applicable to you, (x) in response to any subpoena or other legal process (y) in connection with any litigation to which you are a party or (z) if an Event of Default has occurred and is continuing, to the extent you may reasonably determine such delivery and disclosure to be necessary or appropriate in the enforcement or for the protection of the rights and remedies under you Notes and this Agreement. Each holder of a Note, by its acceptance of a Note, will be deemed to have agreed to be bound by and to be entitled to the benefits of this Section 20 as though it were a party to this Agreement. On reasonable request by the Company in connection with the delivery to any holder of a Note of information required to be delivered to such holder under this Agreement or requested by such holder (other than a holder that is a part to this Agreement to its nominee), such older will enter into an agreement with the Company embodying the provisions of this Section 20. |
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without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction. |
22.4 Construction. |
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22.5 Counterparts. |
22.6 Governing Law. |
(SIGNATURE PAGE TO FOLLOW) |
If you are in agreement with the foregoing, please sign the form of agreement on the accompanying counterpart of this Agreement and return it to the Company, whereupon the foregoing shall become a binding agreement between you and the Company. |
Very truly yours, |
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The foregoing is hereby agreed to as of the date thereof. |
(SIGNATURE PAGE TO NOTE PURCHASE AGREEMENT) |
If you are in agreement with the foregoing, please sign the form of agreement on the accompanying counterpart of this Agreement and return it to the Company, whereupon the foregoing shall become a binding agreement between you and the Company. |
Very truly yours, |
The foregoing is hereby agreed to as of the date thereof. |
(SIGNATURE PAGE TO NOTE PURCHASE AGREEMENT) |
INFORMATION RELATING TO PURCHASES |
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Principal Amount of |
Teachers Insurance and Annuity Association of America |
1 Class A Note for $10,000,000 |
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Chase Manhattan Bank |
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Notices |
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Contemporaneously with the above electronic funds transfer, advice setting forth (1) the full name, Cusip number and coupon on the Note; (2) allocation of payment between principal, interest, premium and any special payment; and (3) name and address of Bank (or Trustee) from which wire transfer was sent, shall be delivered, mailed or faxed to: |
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Teachers Insurance and Annuity Association of America |
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Teachers Insurance and Annuity Association of America |
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American United Life Insurance Company |
1 Class B Note for $4,000,000 |
1. All payments on account of the Notes or other obligations in accordance with the provisions thereof shall be made by bankwire transfer of immediately available funds for credit not later than 12 noon New York time to: |
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The Bank of New York |
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2. Contemporaneously with the above wire transfer, advice setting forth: |
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3. All notices with respect to prepayments, both scheduled and unscheduled, whether partial or in full, and notice of maturity shall be delivered or mailed to: |
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American United Life Insurance Company |
4. All other communications which shall include, but not be limited to, financial statements and certificates of compliance with financial covenants, shall be delivered or mailed to: |
American United Life Insurance Company |
5. All securities shall be registered in the name of American United Life Insurance Company. |
6. Tax I.D. No. 00-0000000 |
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1. All payments on account of the Notes or other obligations in accordance with the provisions thereof shall be made by bank wire transfer of immediately available funds for credit, not later than 12 noon, New York time, to: |
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The Bank of New York |
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2. Contemporaneously with the above wire transfer, advice setting forth: |
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3. All notices with respect to prepayments, both scheduled and unscheduled, whether partial or in full, and notice of maturity shall be delivered or mailed to: |
4. All other communications which shall include, but not be limited to, financial statements and certificates of compliance with financial covenants shall be delivered or mailed to: |
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6. Tax I.D. No. 00-0000000 |
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Principal Amount of |
Berkshire Life Insurance Company |
1 Class B Note for $2,000,000 |
000 Xxxxx Xxxxxx |
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Pittsfield, Massachusetts 01201 |
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1. All payments on account of the Notes or other obligations in accordance with the provisions thereof shall be made by bank wire transfer of immediately available funds for credit, not later than 12 noon, New York time to: |
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2. Contemporaneously with the above wire transfer, advice setting forth: |
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(1) the full name, interest rate, PPN number and maturity date of the Notes; |
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3. All notices with respect to prepayments, both scheduled and unscheduled, whether partial or in full, and notice of maturity shall be delivered or mailed to: |
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Berkshire Life Insurance Company |
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4. All other communications which shall include, but not be limited to, financial statements and certificates of compliance with financial covenants, shall be delivered or mailed to: |
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Berkshire Life Insurance Company |
5. All securities shall be registered in the name of Berkshire Life Insurance Company. |
6. Tax I.D. No. 00-0000000 |
SCHEDULE B |
DEFINED TERMS |
As used herein, the following terms have the respective meanings set forth below or set forth in the section hereof following such term: |
"Affiliate" means at any time, and with respect to any Person, any other Person that at such time directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is under common Control with, such first Person. As used in this definition, "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. Unless the context otherwise clearly requires, any reference to an "Affiliate" is a reference to an Affiliate of the Company. |
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"Change of Control" means, at any time, the occurrence of an event which results if any person other than Eastern Systems Corporation becoming the beneficial owner, directly or indirectly, or more than 50% of the total Voting Stock of the Company. As used in this definition, "person" shall have the meaning given it in Sections 13(d) and 14(d) of the Exchange Act, and "beneficial ownership" shall have the meaning given it in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be deemed to have "beneficial ownership" of all shares of Voting Stock of the Company that such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time. |
"Class A Notes" is defined in Section 1. |
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"Closing " is defined in Section 3. |
"Code" means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated thereunder from time to time. |
"Company" means Mountaineer Gas Company, a West Virginia corporation. |
"Confidential Information" is defined in Section 20. |
"Consolidated funded Indebtedness" at any date, means the amount, without duplication, of the Funded Indebtedness of the Company and all Restricted Subsidiaries at such date, determined on a consolidated basis. |
"Consolidated Net Income" for any period means net income after income taxes of the Company and its Restricted subsidiaries on a consolidated basis for such period, as determined in accordance with GAAP, but excluding: |
(1) the amount by which capital gains and other extraordinary credits exceed capital |
(2) any gain arising from any write-up of assets or from the acquisition of any |
(3) earnings of any Person realized prior to the date it becomes a Restricted |
(4) earnings of any Person (other than a Restricted Subsidiary) in which the Company or any Restricted Subsidiary has an ownership interest, not received by the Company or |
(5) earnings denominated in any currency which is not freely convertible into United |
(6) any portion of the earnings of any Restricted Subsidiary which for any reason is |
(7) earnings of any Person (other than a Restricted Subsidiary) realized prior to the |
(8) any gain arising from the termination of a Pension Plan; |
provided that for purposes only of Section 10.4, the amount paid to Affiliates for management or other services in any period shall be added to net income for the period in the determination of Consolidated Net Income for the period. |
"Consolidated Net Tangible Assets" at any time means the net book value (after deducting depreciation, obsolescence, amortization, valuation and other proper reserves) at which the Tangible Assets of the Company and its Restricted Subsidiaries should be shown on a consolidated balance sheet at such time in accordance with GAAP. |
"Consolidated Tangible Shareholders Equity" at any date, means the amount at which common and preferred stock, capital surplus and retained earnings of the Company and its Restricted Subsidiaries would be shown on a consolidated balance sheet at such date in |
accordance with GAAP, less the amount at which assets other than Tangible Assets would be shown on such balance sheet. |
"Consolidated Total Assets" means, at any time, the total assets of the Company and its Subsidiaries which would be shown as assets on a consolidated balance sheet of the company and its Subsidiaries as of such time prepared in accordance with GAAP, after eliminating all amounts properly attributable to minority interest, if any, in the stock and surplus of Subsidiaries. |
"Coral" is defined in Section 5.18. |
"Default" means an event or condition the occurrence or existence of which would, with the lapse of time or the giving of notice or both, become an Event of Default. |
"Default Rate" means 2% per annum above the rate of interest stated in clause (a) of the first paragraph of the Notes. |
"Discounted Value" is defined in Section 8.6. |
"EBIT" for any period means the sum of (a) Consolidated Net Income for such period, |
"Environmental Laws" means any and all Federal, state, local, and foreign statues, |
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended |
"ERISA Affiliate" means any trade or business (whether or not incorporated ) that is |
"Event of Default" is defined in Section 11. |
"Exchange Act" means the Securities Exchange Act of 1934, as amended. |
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"GAAP" means generally accepted accounting principles as in effect from time to time in the United States of America. |
"Governmental Authority" means |
(a) the government of |
(i) the United States of America or any State or other political subdivision thereof, or |
(ii) any jurisdiction I which the company or any Subsidiary conducts all or any part of its business, or which asserts jurisdiction over any properties of the Company or any Subsidiary, or |
(b) any entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, any such government. |
"Guaranty" means, with respect to any Person, any obligation (except the endorsement in the ordinary course of business of negotiable instruments for deposit or collection) or such Person guaranteeing or in effect guaranteeing any indebtedness, dividend or other obligation of any other Person in any manner, whether directly or indirectly, including (without limitation) obligations incurred through an agreement, contingent or otherwise, by such Person: |
(a) to purchase such indebtedness or obligation or any property constituting security therefor; |
(b) to advance or supply funds (i) for the purchase or payment or such indebtedness or obligation, or (ii) to maintain any working capital or other balance sheet condition or any income statement condition of any other Person or otherwise to advance or make available funds for the purchase or payment or such indebtedness or obligation; |
(d) other wise to assure the owner of such indebtedness or obligation against loss in respect thereof. |
in any computation of the indebtedness of other liabilities of the obligor under any Guaranty, the indebtedness or other obligations that are the subject of such Guaranty shall be assumed to be direct obligations of such obligor. |
"Hazardous Material" means any and all pollutants, toxic or hazardous wastes or any other substances that might pose a hazard to health or safety, the removal of which may be required or the generation, manufacture, refining, production, processing, treatment, storage, handling, transportation, transfer, use, disposal, release, discharge, spillage, seepage, or filtration or which is or shall be restricted prohibited or penalized by any applicable law (including, without limitation, asbestos, urea formaldehyde foam insulation and polychlorinated biphenyls). |
"Holder" means, with respect to any Note, the Person in whose name such Note is registered in the register maintained by the Company pursuant to Section 13.1. |
"Indebtedness" with respect to any Person means, at any time, without duplication, |
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(b) its liabilities for the deferred purchase price of property acquired by such Person (excluding accounts payable arising in the ordinary course of business but including all liabilities created or arising under any conditional sale or other title retention agreement with respect to any such property); |
(c) all liabilities appearing on its balance sheet in accordance with GAAP in respect of Capital Leases; |
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(e) all of its liabilities in respect of letters of credit or instruments serving a similar function issued or accepted for its account by banks and other financial institutions (whether or not representing obligations for borrowed money); |
(f) Swaps of such Person; and |
(g) any Guaranty of such Person with respect to liabilities of a type described in any of clauses (a) through (f) hereof |
"Institutional Investor" means (a) any original purchase of a Note, (b) any holder of a Note holding more than 5% of the aggregate principal amount of the Notes then outstanding, and (c) any bank, trust company, savings and loan association or other financial institutional, an pension plan, any investment company, any insurance company, any broker or dealer, or any other similar financial institutional or entity, regardless of legal form. |
"Interest Expense" with respect to any Person for any period means the interest expense, including the interest portion of rental payments under Capital Leases, of such Person for such period, as determined in accordance with GAAP. |
"Investment" means all in any Person other than routine investments in property to be used or consumed in the ordinary course of business. |
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"MAPCOM" is defined in Section 5.4. |
'MGS" is defined in Section 5.4. |
"Make-Whole Amount" is defined in Section 8.6. |
"Material" means material in relation to the business, operations, affairs, financial condition, assets, or properties of the Company and its Subsidiaries taken as a whole. |
"Material Adverse Effect" means a material adverse effect on (a) the business, operations, franchises, affairs, financial condition, assets or properties of the Company or any Subsidiary, (b) the rates to be charged by the Company or the valuation of any of its property for ratemaking purposes, (c) the ability of the Company to perform its obligations under this Agreement, the Other Agreements and the Notes, or (d) the validity or enforceability of this Agreement, the Other Agreements or the Notes. |
"Memorandum" is defined in Section 5.3. |
"Multiemployer Plan" means any Plan this is a "multiemployer plan" (as such terms is defined in section 4001(a)(3) of ERISA). |
"Notes" is defined in Section 1. |
"Officer's Certificate" means a certificate of a Senior Financial Officer or of any other officer of the Company whose responsibilities extend to the subject matter of such certificate. |
"Operating Subsidiary" means each Subsidiary that owns and/or operates a local natural gas distribution company. |
"Other Agreements" is defined in Section 2. |
"Other Notes" means the Company's 7.59% Senior Notes due October 1, 2010. |
"Other Purchasers" is defined in Section 2. |
"PBGC" means the Pension Benefit Guaranty Corporation referred to and defined in ERISA or any successor thereto. |
"Person" means an individual, partnership, corporation, limited liability company, association, trust unincorporated organization, or a government or agency or political subdivision thereof. |
"Plan" means an "employee benefit plan" (as defined in section 3(3) of ERISA) that is or, within the preceding five years, has been established or maintained, or to which contributions are or, within the preceding five years, have been made or required to be made, by the Company or any ERISA Affiliate or with respect to which the Company or any ERISA Affiliate may have any liability. |
"Preferred Stock" means any class of capital stock of a corporation that is preferred over any other class of capital stock of such corporation as to the payment of dividends or the payment of any amount upon liquidation or dissolution of such corporation. |
"Pro Forma Interest Expense" for any period, with respect of any coverage determination required under Section 10.3 means the sum after giving effect to the funded Indebtedness to be tested and to any concurrent transactions, of the annual Interest Expense of all Indebtedness (including guaranteed Indebtedness of the Company and restricted Subsidiaries (other than Indebtedness owed to the Company or a Wholly-Owned Restricted Subsidiary). |
"property" or "properties" means, unless otherwise specifically limited, real or personal property of any kind, tangible or intangible, xxxxxx or inchoate. |
"Purchase Money Mortgage" means any Lien or property which is granted or retained at the time of the original acquisition or improvement or such property or within 12 months of such acquisition or improvement in order to permit or facilitate the financing of the acquisition of improvement of such property. |
"QPAM Exemption" means Prohibited Transaction Class Exemption 84-14 issued by the United States Department of Labor. |
"Rate Moratorium Agreement" is defined in Section 5.17. |
"Redeemable Stock" means capital stock which by its terms is required or permitted to be redeemed, paid or purchases by the issuer thereof on a periodic or other basis. |
"Remaining Average Life" is defined in Section 8.6. |
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"Required Holders" means, at any time, the holders of at least 51% in principal amount of the Notes at the time outstanding (exclusive of Notes then owned by the Company or any of its Affiliates). |
"Responsible Officer" means any Senior Financial Officer and any other officer of the Company with responsibility for the administration of the relevant portion of this agreement. |
"Restricted Investments" means all investments, made in cash or by delivery of property, by the Company and its Restricted Subsidiaries (x) in any Person, whether by acquisition of a Security, or by loan, advance or capital contribution, or otherwise or (y) in any property (items (x) and (y) herein called "Investments"), except Investments in: |
(a) property to be used in the ordinary course of business as described in Section 5.18, and equity Investments by the Company in each of MGS and MAPCOM; |
(b) current assets arising from the sale of goods and services in the ordinary course of business; |
(c) direct non-callable obligations of end non-callable obligations fully guaranteed by, the United States of America, or any agency or instrumentality of the United States of America the obligations of which are backed by the full faith and credit of the Untied States of America; |
(d) commercial paper (including both interest-bearing and non-interest bearing obligations) payable on demand or on a specified date not more than one year from the date of issuance thereof having a rating of !-1 from Standard & Poor's corporation or P-1 by Xxxxx'x Investors Service, Inc; and |
(e) short-term certificates of deposit of any depository institution or trust company incorporated under the laws of the Untied States of America or any state thereof which as a combined capital and surplus of at least $250,000,000, which is subject to supervision by federal and/or state banking authorities and which, at the time of investment, has the highest short-term credit rating available from Standard & Poor's Corporation or Xxxxx'x Investors Service, Inc. |
Investments shall be valued at cost less any net return of capital through the sale or liquidation thereof or other return of capital thereon. |
"Restricted Payment" means, without duplication: |
(a) the declaration or payment by the Company of any dividend or distribution on its capital stock (other than dividends or distributions payable solely in shares of capital stock (other than Redeemable Stock) or in options, warrants or other rights to acquire capital stock (other than Redeemable Stock)); |
(b) the purchase, redemption or other acquisition or retirement for value by the Company or any Restricted Subsidiary of any shares of the Company's capital stock; |
(c) the purchase, redemption, defeasance or other acquisition or retirement for Value by the Company or a Restricted Subsidiary prior to the maturity date thereof of any Indebtedness that is subordinated in right off payment to the Notes, or the making of a principal payment with respect to any such Indebtedness prior to the date that such payment is required by the terms of such Indebtedness; or |
(d) the making by the Company or a Restricted Subsidiary of any Restricted Investment; or |
(e) the payment by the Company or a Restricted Subsidiary of fees to an Affiliate for management services or otherwise. |
"Restricted Subsidiary" means each of MGS, MAPCOM an any other Subsidiary, |
(1) organized under the laws of the United States or Canada or a jurisdiction thereof, |
(2) which conducts substantially all of its business and has substantially all of its Property within the United States and Canada, |
(3) at least 80% (by number of votes) of the Voting Stock of which and 100% of all other equity securities of which are legally and beneficially owned by the Company and its Wholly-owned Restricted Subsidiaries; and |
(4) which has been designated by the Company as a Restricted Subsidiary by notice to each of the holders of the Notes outstanding at the time. |
Once the Company has designated any Subsidiary as a Restricted Subsidiary, it may not terminate such designation. |
"Senior Financial Officer" means the chief financial officer of the Company. |
"Settlement Date" is defined in Section 8.6. |
"Source" is defined in Section 6.2. |
"Subsidiary" means, as to any Person, any corporation, association or other business entity in which such Person or one or more of its Subsidiaries or such Person and one or more of its Subsidiaries owns sufficient equity or voting interest to enable it or them (as a group) ordinarily, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such entity, and any partnership or joint venture if more than a 50% interest in the profits or capital thereof is owned by such Person or one or more of its Subsidiaries or such Person and one or more of its Subsidiaries (unless such partnership can and does ordinarily take major business actions without the prior approval of such Person or one or more its Subsidiaries). Unless the context otherwise clearly requires, any reference to a "Subsidiary" is a reference to a Subsidiary of the Company, |
"Subsidiary Stock" is defined in Section 10.7. |
"Surviving Entity" is defined in Section 10.2. |
"Swaps" means, with respect to any Person, payment obligations with respect to interest rate swaps, currency swaps and similar obligations obligating such Person to make payments whether periodically or upon the happening of a contingency. For the purposes of this Agreement, the amount of the obligation under any Swap shall be the amount determined in respect thereof as of the end of the then most recently ended fiscal quarter of such Person, bases on the assumption that such Swap had terminated at the end of such fiscal quarter, and in making such determination, if any agreement relating to such Swap provides for the netting of amounts payable by and to such Person thereunder or if any such agreement provides for the simultaneous. |
payment of amounts by and to such Person, then in each such case, the amount of such obligation shall be the net amount so determined. |
"Tangible Assets" means all assets other than; |
(a) deferred assets, other than prepaid insurance and prepaid taxes provided that regulatory assets or the Company, such as, but not limited to, synthetic natural gas development costs, deferred pension costs, deferred rate case costs, costs incurred in connection with the Columbia Gas bankruptcy an FASB 109 taxes, which are deferred in anticipation of their amortization or other recovery through customer rates shall constitute Tangible Assets so long as WVPSC continues to permit such recover; |
(b) patents, copyrights, trademarks, trade names, franchises, good will, experimental expense and other similar intangibles; |
(c) treasury stock and Restricted Investments; and |
(d) unamortized debt discount and expense; provided that unamortized debt discount and expense of the Company which is deferred in anticipation of its amortization or other recovery through customer rates shall constitute Tangible Assets for long as WVPSC continues to permit such recovery. |
"Total Capitalization" means the sum of Consolidated Funded Indebtedness and Consolidated Tangible Shareholders' Equity. |
"Treasury Rate" is defined in Section 8.6. |
"Voting Stock" means securities of any class or classes, the holders of which are ordinarily, in the absence of contingencies, entitled to elect corporate directors (or Persons performing similar functions). |
"Unrestricted Subsidiaries" means any Subsidiary of the Company that is not a Restricted Subsidiary. |
"WVPSC" is defined in Section 4.10. |
"Wholly-Owned Restricted Subsidiary" means any Restricted Subsidiary, all of the equity securities (except directors' qualifying shares) of which are owned by the Company and/or the Company's other Wholly-Owned Restricted Subsidiaries. |
Mountaineer Gas Company |
Mountaineer Gas Company |
Mountaineer Gas Company |
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None of the Subsidiaries listed below has any authorized, issued or outstanding shares of its capital stock of any class or any commitments to issue any share of its capital stock of any class or any securities convertible into or exchangeable for any shares of its capital stock of any class except as otherwise stated in this Schedule 5.4 |
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Additional Names |
MGS |
MGC |
Common |
100 |
100 |
100 |
$1.00 |
West Virginia |
None |
None |
MAPCOM |
MGC |
Common Stock |
75,000 |
60,150 |
60,150 |
None |
Virginia |
West Virginia |
None |
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1. Audited financial statements for the year ending June 30, 1999. |
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3. Audited financial statements for the year ending June 30, 1997. |
4. Audited financial statements for the year ending June 30, 1996. |
5. Audited financial statements for the year ending June 30, 1995. |
6. Audited financial statements for the year ending June 30, 1994. |
Mountaineer Gas Company |
Xxxxxx Xxxxxx, et ux, vs. Mountaineer Gas Company vs. City of Charleston, Civil Action No. 99-C-1307. This action was filed June 14,1999 in the Circuit Court of Kanawha County, West Virginia. This is a personal injury action. Mountaineer's facilities were damaged by a City of Charleston Public Works crew which caused gas to leak into the atmosphere. The City notified Mountaineer of the leak and the City crew then left the scene. Xxxxxxxxxxx arrived on the scene and at some point during Mountaineer's repair of the facilities the City crew returned. The Plaintiff, an employee of the City, without being requested by the Company, attempted to remove a guardrail within ten to twelve feet of the gas leak with a power tool. The power tool caused the gas to ignite and the plaintiff was injured. The Compliant asserts claims for negligence. Statutory violations, strict liability and loss of consortium. The Complaint demands an unspecified amount of compensatory and punitive damages and a trial by jury. Mountaineer answered the Complaint, denying all liability, and filed a Third-Party complaint against the City. The Third-Party Complaint is based upon the City's failure to locate the line prior to excavating, the conduct of the city's employees in causing the accident, and the city's failure to adequately train its employees regarding the dangers associated with natural gas. The City has moved to dismiss the Third-Part Complaint based on Workers' Compensation and governmental immunity. A hearing in the motion is scheduled for November 12, 1999,. Also, Mountaineer believes that there exists a viable affirmative defense of comparative negligence against the Plaintiff. |
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Mountaineer Gas Company |
Mountaineer Gas Company |
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The proceeds of the purchases of the Notes will be used to make the following payments: |
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PNC Bank, NA |
Line of Credit Reduction |
$30,000,000 |
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Mountaineer Gas Company |
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INDEBTEDNESS AND LIENS OF COMPANY AND SUBSIDIARIES |
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PRINCIPAL BALANCE OUTSTANDING ON October 15, 1999 |
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Mountaineer Gas Company |
Xxxx Xxxxxxx, Mutual Life Insurance Company and Embassy & Co. |
Promissory Notes |
$60,000,000 |
None |
Mountaineer Gas Company |
Grace and Xxxxxx Xxxxxxx |
Promissory Note |
$142,500 |
Deed of Trust |
Mountaineer Gas Company |
One Valley Bank, NA |
Line of Credit |
$16,191,200 |
None |
Mountaineer Gas Company |
PNC Bank, NA |
Line of Credit |
$33,000,000 |
None |
Mountaineer Gas Company |
Bank One, West Virginia, NA |
Line of Credit |
$10,000,000 |
None |
Mountaineer Gas Company |
(FORM OF CLASS A NOTE) |
No.( ) (Date) |
$( ) PPN 62452*AD5 |
FOR VALUE RECEIVED, the undersigned, MOUNTAINEER GAS COMPANY (herein called the "Company"), a corporation organized and existing under the laws of the State of West Virginia, hereby promises to pay to (_______________________), or registered assigns, the principal sum of (_________) DOLLARS on October 31, 2009, with interest (computed on the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance thereof at the rate of 7.83% per annum from the date hereof, payable semiannually, on the last day of April and October in each year, commencing with the April 30 or October 31 next succeeding the date hereof, until the principal hereof shall have become due and payable, and (b) to the extent permitted by law on any overdue payment (including any overdue prepayment) of principal, any overdue payment of interest and any overdue payment of and Make-Whole Amount (as defined in the Note Purchase Agreements referred to below) payable semiannually as aforesaid (or, at the option of the registered holder hereof, on demand), at a rate per annum of 9.83%. |
Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are to be made in lawful money of the United States of America at Charleston, West Virginia or at such other place as the Company shall have designated by written notice to the holder of this Note as provided in the Note Purchase Agreements referred to below. |
This Note is one of a series of Senior Notes (herein called the "Notes") issued pursuant to separate Note Purchase Agreements, dated as of October 15,1999 (as from time to time amended, the "Note Purchase Agreements"), between the Company and the respective purchasers named therein and is entitled to the benefits thereof. Each holder of this Note will be deemed, by its acceptance hereof, (i) to have agreed to the confidentiality provisions set forth in Section 20 of the Note Purchase Agreements and (ii) to have made here representation set forth in Section 6.2 of the Note Purchase Agreements. |
This Note is a registered Note and as provided in the Note Purchase Agreement, upon surrender of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder's attorney |
duly authorized in writing, a new Note for a like principal amount will be issued to, and registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company will not be affected by an notice to the contrary. |
The Company will make required prepayments of principal on the dates and in the amounts specified in the Note Purchase Agreements. This Note is also subject to optional prepayment, in whole or from time to time in part, at the times and on the terms specified in the Note Purchase Agreements, but not otherwise. |
If an Event of Default, as defined in the Note Purchase Agreements, occurs and is continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Note Purchase Agreements. |
This Note shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the State of New York, excluding the choice-of-law principles of such State that would require the application of the laws of a jurisdiction other than such State. |
MOUNTAINEER GAS COMPANY |
By:____________________________ |
Title: |
(FORM OF CLASS B NOTE) |
No.( ) (Date) |
$( ) PPN 62452*AE3 |
FOR VALUE RECEIVED, the undersigned, MOUNTAINEER GAS COMPANY (herein called the "Company"), a corporation organized and existing under the laws of the State of West Virginia, hereby promises to pay to (_______________________), or registered assigns, the principal sum of (_________) DOLLARS on October 31, 2019, with interest (computed on the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance thereof at the rate of 8.09% per annum from the date hereof, payable semiannually, on the last day of April and October in each year, commencing with the April 30 or October 31 next succeeding the date hereof, until the principal hereof shall have become due and payable, and (b) to the extent permitted bylaw on any overdue payment (including any overdue prepayment) of principal, any overdue payment of interest and any overdue payment of and Make-Whole Amount (as defined in the Note Purchase Agreements referred to below) payable semiannually as aforesaid (or, at the option of the registered holder hereof, on demand), at a rate per annum of 10.09%. |
Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are to be made in lawful money of the United States of America at Charleston, West Virginia or at such other place as the Company shall have designated by written notice to the holder of this Note as provided in the Note Purchase Agreements referred to below. |
This Note is one of a series of Senior Notes (herein called the "Notes") issued pursuant to separate Note Purchase Agreements, dated as of October 15,1999 (as from time to time amended, the "Note Purchase Agreements"), between the Company and the respective purchasers named therein and is entitled to the benefits thereof. Each holder of this Note will be deemed, by its acceptance hereof, (i) to have agreed to the confidentiality provisions set forth in Section 20 of the Note Purchase Agreements and (ii) to have made here representation set forth in Section 6.2 of the Note Purchase Agreements. |
This Note is a registered Note and as provided in the Note Purchase Agreement, upon surrender of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder's attorney duly authorized in writing, a new Note for a like principal amount will be issued to, and |
registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company will not be affected by an notice to the contrary. |
The Company will make required prepayments of principal on the dates and in the amounts specified in the Note Purchase Agreements. This Note is also subject to optional prepayment, in whole or from time to time in part, at the times and on the terms specified in the Note Purchase Agreements, but not otherwise. |
If an Event of Default, as defined in the Note Purchase Agreements, occurs and is continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Note Purchase Agreements. |
This Note shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the State of New York, excluding the choice-of-law principles of such State that would require the application of the laws of a jurisdiction other than such State. |
MOUNTAINEER GAS COMPANY |
By:____________________________ |
Title: |
FORM OF OPINION OF SPECIAL COUNSEL |
Matters to be covered in |
Opinion of Xxxxxxx & Xxxxxxx, Special Counsel To the Company |
1. Each of the Company and its Subsidiaries being duly incorporated, validly existing and in good standing and having requisite corporate power and authority to issue and sell the Notes and to execute and deliver the documents. |
2. Each of the Company and its Subsidiaries being duly qualified and in good standing as a foreign corporation in appropriate jurisdictions. |
3. Due authorization and execution of the documents and such documents being legal, valid, binding and enforceable. |
4. No conflicts with charter documents, laws or other agreements. |
5. All consents and governmental approvals required to issue and sell the Notes and to execute and deliver the documents having been obtained. |
6. No litigation questioning validity of documents. |
7. The Notes not requiring registration under the Securities Act of 1933, as amended; no need to qualify an indenture under the Trust Indenture Act of 1939, as amended. |
8. No violation of Regulations U, T or X of the Federal Reserve Board. |
9. Company not an "investment company", or a company "controlled" by an "investment company", under the Investment Company Act of 1940, as amended. |
10. Company and its Subsidiaries not being subject to regulation under the Public Utility Holding Company Act of 1935, as amended. |
11. Company and its Subsidiaries having all licenses, permits, franchises and authorization necessary to conduct their business. |
12. Effectiveness of fuel adjustment clause for the Company. |
13. Natural Gas Supply Management Agreement being duly authorized, executed and delivered by both parties thereto and being legal, valid, binding and enforceable. |
14. Rate Moratorium Agreement being and related WVPSC order effective, final, non-appealable and binding on parties thereto and other entities. |
FORM OF OPINION OF SPECIAL COUNSEL |
MATTERS TO BE COVERED IN OPINION OF DAY, XXXXX & XXXXXX LLP |
1. The Company being duly incorporated, validly existing and in good standing and having requisite corporate power and authority to issue and sell the Notes and to execute and deliver the documents. |
2. Due authorization and execution of the documents and such documents being legal, valid, binding and enforceable. |
3. No conflicts with charter documents. |
4. All Federal consents required to issue and sell the Notes and to execute and deliver the documents having been obtained. |
5. The Notes not requiring registration under the Securities Act of 1933, as amended; not need to qualify an indenture under the Trust Indenture Act of 1939, as amended. |