EXHIBIT 10.15
FUNDING AGREEMENT
This Funding Agreement (this "Agreement"), dated as of April 23, 1999, is
made by and between Green Funding I, L.L.C. ("Green Funding") and Green Mountain
Energy Resources L.L.C. (the "Company").
RECITALS
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A. The Company may require additional financing in order to meet its
anticipated working capital needs for the remainder of its 1999 fiscal year.
X. Xxxxx Funding is willing to provide additional financing to the
Company on the terms set forth in this Agreement.
AGREEMENTS
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I. Funding Commitment
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1.1 Commitment. During the period commencing on the date of this
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Agreement and ending on January 3, 2000, Green Funding shall advance to the
Company, in cash, such amounts as may be determined from time to time by the
Company, in its sole discretion, to be necessary to enable the Company to meet
its working capital needs for such period; provided, however, (i) in no event
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shall Green Funding be required to advance to the Company more than $22.0
million in the aggregate, (ii) all advances hereunder shall be made on the first
business day of a calendar month and (iii) the Company shall give Green Funding
not less than 30 days notice of the amount to be advanced. Notwithstanding
anything to the contrary herein contained, Green Funding shall have no further
obligations to make advances pursuant to this Agreement if the Company (or its
successor) closes a sale of securities pursuant to its initial public offering.
1.2 Terms of Advances. All amounts advanced by Green Funding pursuant to
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this Agreement shall bear interest at a rate of 6% per annum. On each December
31 and June 30, all accrued and unpaid interest shall be capitalized and added
to the then outstanding principal. Principal, together with accrued and unpaid
interest thereon, shall be payable on the earlier to occur of the second
anniversary of the date of this Agreement or the tenth day following the closing
by the Company (or its successor) of a sale of securities pursuant to its
initial public offering. Simultaneously with the execution of this Agreement,
the Company will execute and deliver a promissory note (the "Working Capital
Note") payable to Green Funding in the form attached as Exhibit A hereto in
order to evidence the advances made pursuant to this Agreement.
1.3 Investment Intent. Green Funding hereby represents and warrants that:
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(a) It is an accredited investor as defined in Rule 501 of Regulation
D promulgated under the Securities Act of 1933, as amended (the "Securities
Act"), and is, or is directed and advised by, a sophisticated person who
has such knowledge and experience in financial and business matter as to be
capable of evaluating the merits and risks of investing in the Working
Capital Note.
(b) It is accepting the Working Capital Note as contemplated hereby
for its own account and not as a nominee for any other person or entity.
(c) It is accepting the Working Capital Note as contemplated hereby as
an investment and not with a view to distribute such Working Capital Note
and it has no present intention to sell or otherwise transfer the Working
Capital Note.
(d) It understands that (i) the Working Capital Note has not been, and
will not be, registered under the Securities Act or the securities laws of
any state, (ii) it cannot sell such Working Capital Note unless the Working
Capital Note is registered under the Securities Act and any applicable
state securities law or an exemption from such registration is available,
and (iii) the Working Capital Note received by such party will bear a
legend to the effect of the foregoing clauses (i) and (ii).
II. Miscellaneous
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2.1 Further Assurances. Each of the parties will, at any time, upon the
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request of any other party hereto, take, or cause to be taken, all actions and
do, or cause to be done, all things (including without limitation executing,
acknowledging and delivering any additional agreements, instruments and
documents) as may be necessary, appropriate or advisable in order to consummate
or make effective the intentions, purposes and transactions of or contemplated
by this Agreement.
2.2 Successors and Assigns. This Agreement will be binding upon the
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parties hereto and their respective successors and assigns and will inure to the
benefit of the parties hereto and their respective successors and assigns.
2.3 Entire Agreement. This Agreement, together with the Combination
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Agreement, constitutes the entire agreement between the parties with respect to
the subject matter hereof.
2.4 Amendment. This Agreement may not be amended except by an instrument
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signed by the parties hereto.
2.5 Headings. Section headings in this Agreement are included herein for
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convenience of reference only and will not constitute a part of this Agreement
for any other purpose.
2.6 Governing Law. This Agreement will be governed by, and construed in
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accordance with, the law of the State of Texas, without giving effect to the
principles of conflict of laws of such State.
2.7 Counterparts. This Agreement may be executed in counterparts, each of
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which shall be an original, but all of which together shall constitute but one
and the same agreement.
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IN WITNESS WHEREOF, Green Funding and the Company have caused this
Agreement to be executed as of April 23, 1999.
GREEN FUNDING I, L.L.C.
By: /s/ XXX XXXX
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Name: Xxx Xxxx
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Title:
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GREEN MOUNTAIN ENERGY
RESOURCES L.L.C.
By: /s/ M. XXXXX XXXXX
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Name: M. Xxxxx Xxxxx
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Title: Chief Executive Officer
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EXHIBIT A
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PROMISSORY NOTE
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Dallas, Texas $22,000,000 April 23, 1999
GREEN MOUNTAIN RESOURCES L.L.C., a Delaware limited liability company
having offices at 00 Xxxxx Xxxxxxxx Xxxxx, Xxxxx Xxxxxxxxxx, Xxxxxxx 00000
("Borrower"), for value received, promises to pay to the order of GREEN FUNDING
I, L.L.C., a Delaware limited liability company having offices at 000 Xxxxxxxx
Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, or its assigns ("Lender"), the principal
sum of $22,000,000.00 or such lesser amount advanced to Borrower from time to
time hereunder, together with all accrued and unpaid interest thereon, on or
before the earlier to occur of (i) April 23, 2001 or (ii) the tenth day
following the closing of a sale by the Borrower (or its successor) of securities
pursuant to its initial public offering (the "Maturity Date"). This Note will
evidence advances made from time to time prior to December 31, 1999 by Lender to
Borrower pursuant to the terms of the Funding Agreement, dated as of April 23,
1999 (the "Funding Agreement"), by and between Lender and Borrower.
The unpaid principal balance of each advance hereunder will bear interest
at a per annum rate equal to 6%. On each June 30 and December 31 all accrued
and unpaid interest will be capitalized and added to the then outstanding
principal. In the event that the unpaid principal balance hereunder is not paid
in full on the Maturity Date, such unpaid principal balance will continue to
bear interest at a per annum rate equal to 6% as provided above, and principal,
interest and all other amounts owing hereunder will be due and payable on
demand.
Notwithstanding any provision to the contrary herein contained, all amounts
owing under this Note will be due and payable in full on the Maturity Date.
All or any portion of the principal amount owing under this Note may be
prepaid from time to time, in whole or in part, without premium or penalty. Any
prepayment of this Note will be accompanied by all interest accrued on the
principal amount being prepaid.
Principal, interest and all other amounts owing hereunder are payable to
Lender at the address designated by it from time to time. All payments on this
Note will be made in lawful currency of the United States of America,
constituting same day funds, without setoff, counterclaim or other defense.
All computations of interest hereunder will be made on the basis of a year
of 365 or 366 days, as the case may be.
It is not the intention of any party hereto or any subsequent holder hereof
to make an agreement violative of the laws of any applicable jurisdiction
relating to usury. In no event will Borrower be obligated to pay any amount in
excess of the maximum amount of interest permitted under applicable law. If
from any circumstance the holder hereof ever receives anything of value deemed
excess interest under applicable law, an amount equal to such excess will be
applied to the reduction of the principal amount hereof, and any remainder will
be promptly refunded to the payor.
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Borrower agrees to indemnify and hold harmless each holder of this Note
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses and disbursements of any kind
or nature whatsoever which may be imposed on, incurred by or asserted against
such holder or any of its partners, representatives, officers, directors,
employees or agents, in any way relating to or arising out of this Note or any
act, omission or transaction of Borrower or any of its partners,
representatives, officers, directors, employees or agents (including in
connection with or as a result, in whole or part, of the negligence of any such
person); provided, however, that a holder of this Note will not be so
indemnified and held harmless for any losses or damages which Borrower proves
were caused by such holder's willful misconduct or gross negligence, and such
holder will be liable to Borrower only to the extent of any direct (as opposed
to consequential) damages suffered by Borrower as a result of such holder's
willful misconduct or gross negligence.
If this Note is placed in the hands of an attorney for collection after
default, or if all or any part of the indebtedness represented hereby is proved,
established or collected in any court or in any bankruptcy, receivership, debtor
relief, probate or other court proceedings, Borrower agrees to pay reasonable
attorneys' fees and collection costs incurred.
Borrower hereby waives demand, presentment for payment, protest, notices of
any kind, including without limitation notice of protest and notice of intention
to accelerate the maturity of this Note, the bringing of any suit against any
party, and any notice of defense on account of any extensions, renewals, partial
payments or changes in any manner of or in this Note or in any of its terms,
provisions and covenants, or any releases or substitutions of any security, or
any delay, indulgence or other act of any holder hereof, whether before or after
maturity.
If any provision of this Note is held to be illegal, invalid or
unenforceable under present or future laws during the term hereof, such improper
provision will be fully severable, this Note will be construed and enforced as
if such improper provision had never comprised a part hereof, and the remaining
provisions hereof will remain in full force and effect and will not be affected
by the improper provision or by its severance herefrom. Furthermore, in lieu of
such improper provision, there will be added automatically as a part of this
Note a legal, valid and enforceable provision as similar in terms to the
improper provision as may be possible.
Borrower may not assign or transfer its rights or obligations hereunder
without the prior written consent of the holder of this Note. The holder of
this Note is hereby authorized by Borrower to record on a schedule annexed to
this Note (or on a supplemental schedule thereto) the amount of each advance to
Borrower hereunder and each payment made on this Note by Borrower, which
schedule will be conclusive and binding absent manifest error. The failure to
make any such notation, however, will not affect the rights of the holder of
this Note or the obligations of Borrower hereunder or under any related
documents.
This Note will be deemed to be a contract made and to be performed in
Dallas, Texas. This Note will be governed by and construed in accordance with
the laws of the State of Texas (without giving effect to conflict of law
principles) and the United States of America. Without
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excluding any other jurisdiction, Borrower agrees that the state and federal
courts of Texas located in Dallas, Texas will have jurisdiction over proceedings
in connection herewith.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWER HEREBY WAIVES ANY
RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE (WHETHER A CLAIM IN
TORT, CONTRACT, EQUITY OR OTHERWISE) ARISING UNDER OR RELATING TO THIS NOTE OR
ANY RELATED MATTERS, AND AGREES THAT ANY SUCH DISPUTE WILL BE TRIED BEFORE A
JUDGE SITTING WITHOUT A JURY.
THIS NOTE AND THE FUNDING AGREEMENT REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1993, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT
BE SOLD OR OTHERWISE TRANSFERRED UNLESS THIS NOTE IS REGISTERED UNDER THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM
SUCH REGISTRATION IS AVAILABLE.
BORROWER:
GREEN MOUNTAIN ENERGY RESOURCES L.L.C.
By: /s/ M. XXXXX XXXXX
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Name: M. Xxxxx Xxxxx
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Title: Chief Executive Officer
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ADVANCES AND PAYMENTS OF PRINCIPAL
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Amount of Unpaid
Amount of Principal Principal
Date Advance Payment Balance
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