Exhibit 4-b-18
Execution Copy
CREDIT AGREEMENT
by and among
GREEN MOUNTAIN POWER CORPORATION,
THE BANK OF NOVA SCOTIA,
STATE STREET BANK AND TRUST COMPANY,
FLEET NATIONAL BANK,
and
FLEET NATIONAL BANK,
AS AGENT
$60,000,000
Dated as of August 12, 1997
TABLE OF CONTENTS
Paragraph Heading Page
1. DEFINITIONS..............................................1
1.1 Defined Terms
1.2 Other Definitional provisions............................1
PRELIMINARY MATTERS.....................................
2. AMOUNT AND TERMS OF LOANS...............................10
2.1 Tranche A Loans ........................................10
2.2 Tranche B Loans ........................................10
2.3 Procedure for Borrowings................................11
2.4 Notes...................................................14
2.5 Voluntary Reductions of the Aggregate
Commitments; Termination................................15
(a) Voluntary Reductions...............................15
(b) General............................................15
2.6 Prepayments and Payment of Loans........................16
(a) Voluntary Prepayments..............................16
(b) Mandatory Repayments...............................16
(c) Prepayments of Bid Rate Loans......................16
2.7 Conversion Options......................................16
(a) Conversion of Pro Rata Loans.......................16
(b) Continuation of Pro Rata Loans.....................17
(c) Restrictions on Conversion.........................17
and Continuation of Bid Rate Loans................17
2.8 Interest Rate and Payment Dates for Loans...............17
(a) Interest Rates for All Loans Prior to Maturity.....17
(b) Overdue Amounts....................................17
(c) General............................................17
2.9 Substituted Interest Rate ..............................18
2.10 Illegality..............................................18
2.11 Increased Costs ........................................19
2.12 Indemnity...............................................20
2.13 Use of Proceeds.........................................21
2.14 Capital Adequacy........................................21
2.15 Extension of Termination Date ..........................21
2.16 Notice of Costs; Substitution of Banks .................22
2.17 Regulatory Approvals....................................23
2.18 Increase of Commitments.................................23
3. FEES: PAYMENTS .........................................23
3.1 Commitment and Facility Fees............................23
3.2 Fees of the Agent ......................................24
3.3 Computation of Interest and Fees .......................24
3.4 Pro Rata Treatment and Application of Principal
Payments................................................24
4. REPRESENTATIONS AND WARRANTIES..........................24
4.1 Subsidiary .............................................24
4.2 Corporate Existence and Power...........................25
4.3 Corporate Authority.....................................25
4.4 Binding Agreement.......................................25
4.5 Litigation..............................................25
4.6 No Conflicting Agreements...............................25
4.7 Taxes ..................................................26
4.8 Financial Statements....................................26
4.9 Compliance with Applicable Laws.........................26
4.10 Governmental Regulations................................27
4.11 Property................................................27
4.12 Federal Reserve Regulations.............................27
4.13 No Misrepresentation....................................27
4.14 Pension Plans...........................................27
4.15 Public Utility Holding Company Act......................27
4.16 Approvals...............................................27
4.17 Regulatory Investigations...............................28
4.18 No Adverse Change or Event..............................28
5. CONDITIONS OF BORROWING - FIRST BORROWING ..............28
5.1 Evidence of Corporate Action............................28
5.2 Notes ..................................................28
5.3 Approval of Special Counsel.............................28
5.4 Opinion of Counsel to the Company ......................28
5.5 Fees ...................................................28
5.6 VPSB Approval ..........................................29
6. CONDITIONS OF BORROWING-ALL BORROWINGS .................29
6.1 Compliance..............................................29
6.2 Loan Closings ..........................................29
6.3 Approval of Counsel ....................................29
6.4 Borrowing Request.......................................29
6.5 Other Documents ........................................29
7. AFFIRMATIVE COVENANTS ..................................29
7.1 Corporate Existence ....................................30
7.2 Taxes ..................................................30
7.3 Insurance...............................................30
7.4 Payment of Indebtedness and Performance of Obligations..30
7.5 Observance of Legal Requirements; ERISA ................30
7.6 Financial Statements and Other Information..............30
7.7 Inspection..............................................32
8. NEGATIVE COVENANTS .....................................32
8.1 Funded Debt.............................................32
8.2 Liens ..................................................32
8.3 Mergers and Consolidations .............................33
8.4 Sale of Property........................................33
8.5 Dividends; Distributions................................33
8.6 Guaranties..............................................33
8.7 Amendment of Charter or By-Laws.........................33
8.8 Funded Debt to Capitalization Test......................34
9. EVENTS OF DEFAULT.......................................34
10. THE AGENT ..............................................36
10.1 Appointment.............................................36
10.2 Delegation of Duties, Etc...............................36
10.3 Indemnification.........................................36
10.4 Exculpatory Provisions..................................37
10.5 Agent in its Individual Capacity........................37
10.6 Knowledge of Default....................................37
10.7 Resignation of Agent ...................................38
10.8 Requests to the Agent ..................................38
11. NOTICES ................................................38
11.1 Manner of Delivery .....................................38
11.2 Distribution of Copies..................................40
11.3 Notices by the Agent or a Bank..........................40
12. RIGHT OF SET-OFF ......................................40
13. AMENDMENTS, WAIVERS, AND CONSENTS.......................41
14. OTHER PROVISIONS........................................41
14.1 No Waiver of Rights by the Banks .......................41
14.2 Headings, Plurals ......................................42
14.3 Counterparts............................................42
14.4 Severability............................................42
14.5 Integration.............................................42
14.6 Sales and Participations in Loans and Notes;
Successors and Assigns;
Survival of Representations and Warranties.............42
14.7 Applicable Law..........................................43
14.8 Interest................................................44
14.9 Accounting Terms and Principles.........................44
14.10 Waiver of Trial by Jury.................................44
14.11 Consent to Jurisdiction.................................44
14.12 Service of Process .....................................44
14.13 No Limitation on Service or Suit .......................45
14.14 Incorporated Provisions ................................
15. OTHER OBLIGATIONS OF THE COMPANY .......................45
15.1 Taxes and Fees .........................................45
15.2 Expenses................................................45
16. EFFECTIVE DATE..........................................45
EXHIBITS
EXHIBIT A Commitments
EXHIBIT B Applicable Margins/Percentages for Facility Fee
EXHIBIT C Form of Borrowing Request
EXHIBIT D Form of Bid Borrowing Notice
EXHIBIT E Form of Bid
EXHIBIT F Form of Notice to Agent
EXHIBIT G-1 Form of Notes
EXHIBIT G-2 Form of Bid Rate Note
EXHIBIT H Form of Commitment Extension Request
EXHIBIT I List of Subsidiaries
EXHIBIT J Form of Opinion of Special Counsel
EXHIBIT K Form of Opinion of Counsel to the Company
CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of August 12, 1997, among GREEN
MOUNTAIN POWER CORPORATION, a Vermont corporation (the "Company"), the
Signatory Banks hereto (each, a "Bank" and, collectively, the "Banks"),
and FLEET NATIONAL BANK, as agent hereunder (in such capacity, the
"Agent").
1. DEFINITIONS.
1.1 Defined Terms. As used in this Agreement, terms defined in
the paragraph above have the meanings therein indicated, and the
following terms have the following meanings:
"Accountants": Xxxxxx Xxxxxxxx LLP, or such other firm of
certified public accountants of recognized national standing selected by
the Company.
"Affected Loan": as defined in paragraph 2.9.
"Affected Principal Amount": (i) in the event that the Company
shall fail for any reason to borrow a Loan constituting a Eurodollar
Rate Loan after it shall have delivered a Borrowing Request to the
Agent, an amount equal to the principal amount of such Eurodollar Rate
Loan; (ii) in the event that the right of the Company to have a
Eurodollar Rate Loan outstanding hereunder shall be suspended or shall
terminate for any reason prior to the last day of the Interest Period
applicable thereto, an amount equal to the principal amount of such
Eurodollar Rate Loan; and (iii) in the event that the Company shall
prepay or repay all or any part of the principal amount of a Eurodollar
Rate Loan prior to the last day of the Interest Period applicable
thereto, an amount equal to the principal amount so prepaid or repaid.
"Affiliate": a Person that directly or indirectly, or through one
or more intermediaries, controls or is controlled by or is under common
control with another Person. The term "control" means 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.
"Agent's Fees": as defined in paragraph 3.2.
"Aggregate Commitments": the sum of the Commitments set forth in
Exhibit A as the same may be reduced pursuant to paragraph 2.5 or
increased pursuant to paragraph 2.18.
"Aggregate Tranche A Commitments": the sum of the Tranche A
Commitments set forth in Exhibit A, as the same may be reduced pursuant
to paragraph 2.5 or increased pursuant to paragraph 2.18.
"Aggregate Tranche B Commitments": the sum of the Tranche B
Commitments set forth in Exhibit A, as the same may be reduced pursuant
to paragraph 2.5 or increased pursuant to paragraph 2.18.
"Agreement": this Credit Agreement, as same may be amended,
supplemented or otherwise modified from time to time.
"Alternate Base Rate": the higher of (a) the annual rate of
interest publicly announced from time to time by the Agent at the
Agent's head office as its "base rate" and (b) one-half of one percent
(1/2%) above the Federal Funds Effective Rate.
"Alternate Base Rate Loans": Loans (or any portion thereof) at
such time as they (or such portions) are made or are being maintained at
a rate of interest based upon the Alternate Base Rate.
"Applicable Lending Office": as to any Bank, such Bank's Domestic
Lending Office or Eurodollar Lending Office, as the case may be.
"Applicable Margin": the additional rate per annum to be added to
the interest rate at which each Loan is made determined by reference to
Exhibit B hereto based upon the Debt Rating of the Company.
"Authorized Signatory": the president, any vice president, the
treasurer, the secretary, or any other duly authorized officer of the
Company acceptable to Agent.
"Bank" or "Banks": the signatory Banks to this Credit Agreement
and any other bank or lender that becomes a signatory hereto pursuant to
paragraph 2.18.
"Bid Borrowing": any Borrowing of Bid Rate Loans having the same
Interest Period from one or more of the Banks on a given date,
consisting, collectively of all Bid Rate Loans made or to be made by the
Banks on such date.
"Bid Rate Loans": Loans (or any portion thereof) at such time as
they (or such portions) are made or are being maintained pursuant to
paragraph 2.3(b).
"Bid Rate Note": as defined in paragraph 2.4.
"Borrowing": a Borrowing of additional principal amounts pursuant
to paragraph 2.3 consisting of simultaneous Loans of the same Type made
by each Bank.
"Borrowing Request": as defined in paragraph 2.3.
"Borrowing Date": any date specified in a Borrowing Request
delivered pursuant to paragraphs 2.1 and 2.2 as a date on which the
Company requests the Banks to make Loans hereunder.
"Business Day": for all purposes other than as set forth in
clause (ii) below, (i) any day other than a Saturday, Sunday or other
day on which commercial banks located in New York City or Boston are
authorized or required by law or other governmental actions to close and
(ii) with respect to all notices and determinations in connection with,
and payments of principal and interest on Eurodollar Loans, any day
which is a Business Day described in clause (i) above and which is also
a day on which dealings in foreign currency and exchange and Eurodollar
funding between banks may be carried on in London, New York City and
Boston.
"Code": the Internal Revenue Code of 1986, as the same may be
amended from time to time, or any successor thereto, and the rules and
regulations issued hereunder, as from time to time in effect.
"Commitment": in respect of any Bank, such Bank's undertaking to
make Loans to the Company, subject to the terms and conditions hereof,
in an aggregate outstanding principal amount equal to but not exceeding
the amount set forth next to the name of such Bank on Exhibit A under
the heading "Total Commitment", as the same may be reduced pursuant to
paragraph 2.5 or increased pursuant to paragraph 2.18.
"Commitment Extension Request": a request duly executed by an
Authorized Signatory substantially in the form of Exhibit H.
"Commitment Percentage": as to any Bank, the percentage set forth
opposite the name of such Bank on Exhibit A under the heading
"Commitment Percentage".
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within the
meaning of Section 414(b) or 414(c) of the Code.
"Consolidated": the Company and its Subsidiaries taken as a
whole.
"Conversion Date": the date on which a Loan of one Type is
converted to a Loan of another Type or continued as a Loan of the same
Type.
"Debt Rating": the public debt rating of the Company's senior
secured indebtedness according to Standard & Poor's Corporation or
Xxxxx'x Investor Service; in the event that neither Standard & Poor's
Corporation or Xxxxx'x Investor Service have a public debt rating for
the Company, the Company shall be deemed to have no Debt Rating.
"Designated Documents": the Company's 1996 Form 10-K and the
Company's quarterly report on Form 10-Q for the fiscal quarter ended
March 31, 1997.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Domestic Lending Office": as to any Bank, initially the office
of such Bank designated as such on the signature page hereof, and
thereafter such other office in the United States as reported by such
Bank to the Agent, that shall be making or maintaining Alternate Base
Rate Loans or Bid Rate Loans.
"Effective Date": as defined in paragraph 16.
"Environmental Law": Any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses,
agreements or other governmental restrictions relating to the
environment (but not including zoning and similar land use laws and
regulations which have no Material Adverse Effect on the Company) or to
emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or
wastes into the environment, including, without limitation, ambient air,
surface water, ground water or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, chemicals
or industrial, toxic or hazardous substances or wastes.
"Environmental Notice": any summons, citation, directive,
information request, notice of potential responsibility, notice of
violation or deficiency, order, claim, complaint, investigation,
proceeding, judgment, letter or other communication, written or oral,
actual or threatened, from the United States Environmental Protection
Agency or other federal, state or local agency or authority, or any
other entity or individual, public or private, concerning any
intentional or unintentional act or omission which involves management
of hazardous substances or wastes on or off any property owned or leased
by the Company or any Subsidiary or Affiliate of the Company; the
imposition of any Lien on such property; and any alleged violation of or
responsibility under Environmental Laws.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations issued
hereunder, as from time to time in effect.
"Eurodollar Lending Office": as to any Bank, initially the office
of such Bank designated as such on the signature page hereof, and
thereafter such other office as reported by such Bank to the Agent, that
shall be making or maintaining Eurodollar Rate Loans.
"Eurodollar Rate": with respect to any Interest Period applicable
to any Eurodollar Rate Loan, the rate per annum determined by dividing
(i) the rate per annum (rounded to the next highest 1/100 of 1%) at
which Dollar deposits are offered by major banks to major banks in
immediately available funds in the London interbank eurodollar market as
determined by the Agent at or about 11:00 a.m. (London time) for
delivery on the day that is two (2) Business Days prior to the first day
of such Interest Period, in an amount comparable to the amount of the
Eurodollar Rate Loan of FNB to which such Interest Period shall apply
and for a period equal to such Interest Period, by (ii) one minus the
aggregate of the maximum rates (expressed as a decimal) of reserves
(including, without limitation, basic, supplemental, marginal and
emergency reserves) for "Eurocurrency liabilities" of member banks of
the Federal Reserve System as prescribed under Regulation D of the Board
of Governors of the Federal Reserve System. The Eurodollar Rate shall
be adjusted automatically on and as of the effective date of any change
in such reserve rate for Eurocurrency liabilities. Each determination
by the Agent of the Eurodollar Rate shall be presumed to be correct in
the absence of manifest error. All interest based on the Eurodollar
Rate shall be calculated on the basis of a 360-day year for the actual
number of days elapsed.
"Eurodollar Rate Loans": Loans (or any portions thereof) at such
time as they (or such portions) are made or being maintained at a rate
of interest based upon the Eurodollar Rate.
"Event of Default": any of the events specified in paragraph 9,
provided that any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.
"Federal Funds Effective Rate": the weighted average of the rates
on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers on such day, as
published for the prior day by the Federal Reserve Bank of Boston.
"First Mortgage Bonds": the Company's First Mortgage Bonds as set
forth in the Company's 1996 Form 10-K filed on March 29, 1997 with the
Securities and Exchange Commission.
"FNB": Fleet National Bank, a national banking association.
"Facility Fee": as defined in paragraph 3.1.
"Financial Statements": as defined in paragraph 4.8.
"Funded Debt": all obligations of the Company evidenced by bonds,
debentures, notes or other similar instruments (including, without
limitation, preferred stock not issued and outstanding as of the date
hereof that has maturities within the term of this Agreement) and all
other evidences of indebtedness of the Company (including, without
limitation, debt with initial maturities of less than one (1) year
("Short-Term Funded Debt"), and any other instrument or arrangement
which would be treated as indebtedness under GAAP, including, without
limitation, capitalized leases but excluding trade obligations and
normal accruals, including accounts payable, in the ordinary course of
business not yet due and payable, or with respect to which the Company
is contesting in good faith the amount or validity thereof by
appropriate proceedings and then only to the extent that the Company has
set aside on its books adequate reserves therefor in accordance with
GAAP and such contest does not have a Material Adverse Effect).
"GAAP": generally accepted accounting principles from time to
time followed by companies engaged in a business similar to that of the
Company, except as otherwise required by any applicable rules,
regulations or orders of the VPSB, or other public regulatory authority
having jurisdiction over the accounts of the Company; provided that the
Company may at any time contest or controvert in good faith the validity
or applicability to the Company of any such rule, regulation or order;
and provided, further, that the federal income tax liability of the
Company may be computed as if the Company were filing separate returns
notwithstanding the fact that it may file consolidated returns as part
of an affiliated group.
"Governmental Body": any nation or government, any state or other
political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions, of, or
pertaining to, government, and any court or arbitrator.
"Interest Payment Date": (a) as to any Alternate Base Rate Loan,
the last day of each March, June, September and December commencing on
the first such day to occur after such Loan is made or any Eurodollar
Rate Loan is converted to an Alternate Base Rate Loan, and the date each
Alternate Base Rate Loan is paid in full, (b) as to any Eurodollar Rate
Loan in respect of which the Company has selected an Interest Period of
one, two or three months, the last day of such Interest Period, and (c)
as to any Eurodollar Rate Loan having an Interest Period of six months,
the last day and, in addition, the numerically corresponding day (or, if
there is no numerically corresponding day, the last day) in the calendar
month that is three months after the first day, of such Interest Period
and (d) as to any Bid Rate Loan, the last day of each applicable
Interest Period.
"Interest Period":
(a) with respect to any Eurodollar Rate Loan comprising the same
Borrowing:
(i) initially, the period commencing on, as the case may be,
the Borrowing Date or a Conversion Date with respect to such
Eurodollar Rate Loan, and ending one, two, three or six months
thereafter, as selected by the Company in its irrevocable Borrowing
Request as provided in paragraph 2.3 or its irrevocable notice of
conversion as provided in paragraph 2.7; and
(ii) thereafter, each period commencing on, as the case may
be, the Borrowing Date or a Conversion Date with respect to such
Eurodollar Rate Loan and ending one, two, three or six months
thereafter, as selected by the Company in its irrevocable notice of
conversion as provided in paragraph 2.7; and
(b) with respect to any Bid Rate Loan, a period commencing on the
date of the making of such Loan and ending on the maturity date
specified therefor in accordance with paragraph 2.3(b)(i)(D).
(c) All of the foregoing provisions relating to Interest Periods
set forth in paragraphs (a) and (b) above are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar Rate
Loan or a Bid Rate Loan comprising the same Borrowing would
otherwise end on a day which is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless
the result of such extension would be to carry such Interest Period
into another calendar month, in which event such Interest Period
shall end on the immediately preceding Business Day;
(ii) if, with respect to the conversion of any Loan, the
Company shall fail to give due notice as provided in paragraph 2.7
for such Loan, such Loan shall be automatically converted to an
Alternate Base Rate Loan upon the expiration of the Interest Period
with respect thereto;
(iii) any Interest Period pertaining to a Eurodollar Rate
Loan or a Bid Rate Loan that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month;
(iv) the Company shall select Interest Periods relating to
Eurodollar Rate Loans so as not to have more than twelve different
Interest Periods relating to Eurodollar Rate Loans outstanding at
any one time; and
(v) the Company shall select Interest Periods pertaining to
Eurodollar Rate Loans such that, on the date the mandatory
repayment is required to be made under paragraph 2.6(b), the
outstanding principal amount of all Alternate Base Rate Loans, Bid
Rate Loans and Eurodollar Rate Loans with Interest Periods ending
on the date of such payment shall equal the aggregate principal
amount of the Loans required to be repaid on such date.
"Lien: any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or security interest of any kind or
nature whatsoever (including, without limitation, any conditional sale
or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the
filing of any financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction).
"Loan Documents": collectively, this Agreement and the Notes and
any document and instrument executed and/or delivered in connection
herewith or therewith.
"Loan": a Loan made pursuant to paragraph 2.1 or 2.2.
"Majority Banks": at any time when no Loans are outstanding,
Banks having at least 66 2/3% of the Aggregate Commitments; at any time
when Loans are outstanding, Banks holding at least 66 2/3% of the
outstanding Loans.
"Material Adverse Change": a material adverse change in the
business, assets, liabilities, condition (financial or otherwise),
results of operations or business prospects of (a) the Company or (b)
the Company and its Subsidiaries "taken as a whole" which would
reasonably be expected to render the Company unable to perform its
obligations under the Loan Documents. The term "Material Adverse
Change" shall include, without limitation, any change in any law,
regulation, treaty or directive or in the interpretation or application
thereof by any Governmental Body, including without limitation, the
VPSB, charged with the administration thereof or compliance by the
Company with any request or directive from any Governmental Body,
including without limitation, the VPSB, the result of which would have a
Material Adverse Effect.
"Material Adverse Effect": (a) with respect to any Person
(including, without limitation, the Company), any materially adverse
effect on such Person's business, assets, liabilities, condition
(financial or otherwise), results of operations or business prospects,
(b) with respect to a group of Persons "taken as a whole" (including,
without limitation, the Company and its Subsidiaries), any materially
adverse effect on such Persons' business, assets, liabilities, financial
conditions, results of operations or business prospects taken as a whole
on, where appropriate, a consolidated basis in accordance with GAAP and
(c) with respect to any Loan Document, any adverse effect, WHETHER OR
NOT MATERIAL, on the binding nature, validity or enforceability thereof
as an obligation of the Company.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001 (a)(3) of ERISA.
"Non-Consenting Bank": as defined in paragraph 2.15.
"Notes": as defined in paragraph 2.4.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental Body
succeeding to the functions thereof.
"Person": an individual, partnership, corporation, limited
liability company, limited liability partnership, business trust, joint
stock company, trust, unincorporated association, joint venture,
Governmental Body or any other entity of whatever nature.
"Plan": any pension plan which is covered by Title IV of ERISA
and in respect of which the Company or a Commonly Controlled Entity is
an "employer" as defined in Section 3(5) of ERISA.
"Pro Rata Loans": Loans (or any portion thereof) at such time as
they (or such portions) are made or are being maintained pursuant to
paragraph 2.3(a).
"Property": all types of real, personal, tangible, intangible or
mixed property.
"Regulation D": Regulation D of the Board of Governors of the
Federal Reserve System, as amended from time to time.
"Replacement Bank": as defined in paragraph 2.15.
"Reportable Event": any event described in Section 4043(b) of
ERISA, other than an event with respect to which the 30-day notice
requirement has been waived.
"Special Counsel": Xxxxxx & Hannah LLP, or such other firm
selected by the Agent.
"Subsidiary": any corporation a majority of the voting shares of
which are at the time owned by the Company or by other subsidiaries of
the Company or by the Company and other subsidiaries of the Company.
"Taxes": any present or future income, stamp or other taxes,
levies, imposts, duties, fees, assessments, deductions, withholdings, or
other like charges, now or hereafter imposed, levied, collected,
withheld, or assessed by any Governmental Body.
"Termination Date": the Tranche A Termination Date and/or the
Tranche B Termination Date, as applicable.
"Total Capitalization": the sum of (a) all outstanding capital
stock of the Company plus (b) Funded Debt.
"Tranche A Commitment": in respect of any Bank, such Bank's
undertaking to make Tranche A Loans to the Company, subject to the terms
and conditions hereof, in an aggregate outstanding principal amount
equal to but not exceeding the amount set forth next to the name of such
Bank on Exhibit A under the heading "Tranche A Commitment", as the same
may be reduced pursuant to paragraph 2.5 or increased pursuant to
paragraph 2.18.
"Tranche A Loans": Loans made pursuant to paragraph 2.1.
"Tranche A Note": a promissory note made by the Company in favor
of the Banks evidencing Loans made pursuant to paragraph 2.1,
substantially in the form of Exhibit G-1 or G-2 hereto.
"Tranche A Termination Date": the date which is three hundred
sixty four (364) days after the Effective Date or any date subsequent
thereto resulting from an extension of the Tranche A Termination Date
pursuant to paragraph 2.15.
"Tranche B Commitment": in respect of any Bank, such Bank's
undertaking to make Tranche B Loans to the Company, subject to the terms
and conditions hereof, in an aggregate outstanding principal amount
equal to but not exceeding the amount set forth next to the name of such
Bank on Exhibit A under the heading "Tranche B Commitment", as the same
may be reduced pursuant to paragraph 2.5 or increased pursuant to
paragraph 2.18.
"Tranche B Loans": Loans made pursuant to paragraph 2.2.
"Tranche B Note": a promissory note made by the Company in favor
of the Banks evidencing Loans made pursuant to paragraph 2.2,
substantially in the form of Exhibit G-1 or G-2 hereto.
"Tranche B Termination Date": the date which is the third (3rd)
anniversary of the Effective Date or any date subsequent thereto
resulting from an extension of the Tranche B Termination Date pursuant
to paragraph 2.15.
"Type": Loans made hereunder as Alternate Base Rate Loans,
Eurodollar Rate Loans or Bid Rate Loans, as the case may be.
"VPSB": the Vermont Public Service Board.
1.2 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the meanings
given such terms herein when used in any certificate, opinion or other
document made or delivered pursuant hereto or thereto, unless otherwise
defined therein. All terms defined in this Agreement and not defined in
paragraph 1.1 shall have the respective meanings given them in the text
of this Agreement.
(b) As used herein and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms relating to
the Company not defined in paragraph 1.1, and accounting terms partly
defined in paragraph 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein", "hereto" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and paragraph, schedule and exhibit references contained
herein shall refer to paragraphs hereof or schedules or exhibits hereto
unless otherwise expressly provided herein. The word "or" shall not be
exclusive.
2. AMOUNT AND TERMS OF LOANS.
2.1 Tranche A Loans.
(a) Generally. Subject to the terms and conditions of this
Agreement, each Bank severally agrees to make Tranche A Loans to the
Company from time to time on and after the Effective Date to, but
excluding, the Tranche A Termination Date, provided that the aggregate
unpaid principal amount of all Tranche A Loans due to each Bank at any
one time shall not exceed an amount equal to such Bank's Tranche A
Commitment, and provided further that the aggregate unpaid principal
amount of the Tranche A Loans at any one time outstanding shall not
exceed the lesser of (i) the Aggregate Tranche A Commitments and (ii)
the aggregate outstanding principal balance of all Tranche A Loans
permitted to be outstanding hereunder after giving effect to the
mandatory repayments required to be made under paragraph 2.6(b). During
the period from the Effective Date to the Tranche A Termination Date,
the Company may borrow, repay and reborrow hereunder, and may convert
all or any part of the Tranche A Loans from one Type to another Type or
continue all or any part of the Tranche A Loans as the same Type in
accordance with and subject to the terms and provisions hereof. In the
event the Company elects to extend the scheduled maturity of the Tranche
A Loans in accordance with paragraph 2.15 hereof, during the period from
and after the Tranche A Termination Date to the extended Tranche A
Termination Date, the Company may prepay the Tranche A Loans and may
convert all or any part of the Tranche A Loans from one Type to Tranche
A Loans of another Type or continue all or any part of the Tranche A
Loans as the same Type, all in accordance with and subject to the terms
and provisions hereof.
(b) Pro Rata Loans. Upon the terms and subject to the conditions
of this Agreement, each Bank agrees to make, from time to time during
the period from the Effective Date through the Tranche A Termination
Date, Pro Rata Loans to the Company. The aggregate unpaid principal
amount of all Tranche A Pro Rata Loans made by each Bank shall not
exceed at any one time an amount equal to such Bank's Tranche A
Commitment, and the aggregate unpaid principal amount of the Tranche A
Loans at any one time outstanding shall not exceed the lesser of (i) the
Aggregate Tranche A Commitments and (ii) the aggregate outstanding
principal balance of all Tranche A Loans permitted to be outstanding
hereunder after giving effect to the mandatory repayments required to be
made under paragraph 2.6(b). Subject to the terms and conditions of
this Agreement, the Tranche A Pro Rata Loans may, at the option of the
Company, be made as, and from time to time continued as or converted
into, Alternate Base Rate or Eurodollar Rate Loans of any permitted
Type, or any combination thereof.
(c) Bid Rate Loans. Upon the terms and subject to the conditions
of this Agreement, each Bank may, in response to each request for
Tranche A Bid Rate Loans, submit one or more bids to make Tranche A Bid
Rate Loans as provided in paragraph 2.3(b). Each Bank shall have sole
and absolute discretion whether to submit any such bid or bids and is
not under any obligation so to do.
2.2 Tranche B Loans.
(a) Generally. Subject to the terms and conditions of this
Agreement, each Bank severally agrees to make Tranche B Loans to the
Company from time to time on and after the Effective Date to, but
excluding, the Tranche B Termination Date, provided that the aggregate
unpaid principal amount of all Tranche B Loans due to each Bank at any
one time shall not exceed an amount equal to such Bank's Tranche B
Commitment, and provided further that the aggregate unpaid principal
amount of the Tranche B Loans at any one time outstanding shall not
exceed the lesser of (i) the Aggregate Tranche B Commitments and (ii)
the aggregate outstanding principal balance of all Tranche B Loans
permitted to be outstanding hereunder after giving effect to the
mandatory repayments required to be made under paragraph 2.6(b). During
the period from the Effective Date to the Tranche B Termination Date,
the Company may borrow, repay and reborrow hereunder, and may convert
all or any part of the Tranche B Loans from one Type to another Type or
continue all or any part of the Tranche B Loans as the same Type in
accordance with and subject to the terms and provisions hereof. In the
event the Company elects to extend the scheduled maturity of the Tranche
B Loans in accordance with paragraph 2.15 hereof, during the period from
and after the Tranche B Termination Date to the extended Tranche B
Termination Date, the Company may prepay the Tranche B Loans and may
convert all or any part of the Tranche B Loans from one Type to Tranche
B Loans of another Type or continue all or any part of the Tranche B
Loans as the same Type, all in accordance with and subject to the terms
and provisions hereof.
(b) Pro Rata Loans. Upon the terms and subject to the conditions
of this Agreement, each Bank agrees to make, from time to time during
the period from the Effective Date through the Tranche B Termination
Date, Pro Rata Loans to the Company. The aggregate unpaid principal
amount of all Tranche B Pro Rata Loans made by each Bank shall not
exceed at any one time an amount equal to such Bank's Tranche B
Commitment, and the aggregate unpaid principal amount of the Tranche B
Loans at any one time outstanding shall not exceed the lesser of (i) the
Aggregate Tranche B Commitments and (ii) the aggregate outstanding
principal balance of all Tranche B Loans permitted to be outstanding
hereunder after giving effect to the mandatory repayments required to be
made under paragraph 2.6(b). Subject to the terms and conditions of
this Agreement, the Tranche B Pro Rata Loans may, at the option of the
Company, be made as, and from time to time continued as or converted
into, Alternate Base Rate or Eurodollar Rate Loans of any permitted
Type, or any combination thereof.
(c) Bid Rate Loans. Upon the terms and subject to the conditions
of this Agreement, each Bank may, in response to each request for
Tranche B Bid Rate Loans, submit one or more bids to make Tranche B Bid
Rate Loans as provided in paragraph 2.3(b). Each Bank shall have sole
and absolute discretion whether to submit any such bid or bids and is
not under any obligation so to do.
2.3 Procedure for Borrowings.
(a) With respect to Pro Rata Loans, the Company may effect a
Borrowing on any Business Day occurring on or after the Effective Date
by giving the Agent an irrevocable telephonic (to be promptly confirmed
in writing) or written notice of borrowing (each, a "Borrowing Request"
in the form of Exhibit C) (which Borrowing Request must be received by
the Agent (a) prior to 10:00 a.m., Boston time, two Business Days prior
to the requested Borrowing Date, if the Company is requesting that
Eurodollar Rate Loans be made as part of such Borrowing, and (b) prior
to 10:00 a.m., Boston time, one Business Day prior to the requested
Borrowing Date, if the Company is requesting that Alternate Base Rate
Loans be made as part of such Borrowing), specifying (i) the amount to
be borrowed, (ii) the requested Borrowing Date, (iii) whether such
Borrowing is to consist of Eurodollar Rate Loans, Alternate Base Rate
Loans or a combination thereof, and (iv) if the Loans are to be
Eurodollar Rate Loans, the length of the initial Interest Period for
each thereof. Each Borrowing shall be in an aggregate principal amount
equal to or greater than $500,000 or, if less, the undrawn balance of
the Aggregate Tranche A or Tranche B Commitments, as the case may be.
The principal amount of each Bank's Tranche A Loan or Tranche B Loan
made on a Borrowing Date shall be in an amount equal to such Bank's
Tranche A Commitment Percentage or Tranche B Commitment Percentage, as
the case may be, of the Loans made on such Borrowing Date. Subject to
the provisions of paragraphs 2.8 and 2.9, Loans may be Alternate Base
Rate Loans or Eurodollar Rate Loans, or any combination thereof. Upon
receipt of each Borrowing Request from the Company, the Agent shall
promptly notify each Bank thereof (such notice to be promptly confirmed
in writing). Each Bank will make the amount of its Commitment
Percentage of each Borrowing available to the Agent for the account of
the Company at the office of the Agent set forth in paragraph 11.1, in
the case of Eurodollar Rate Loans, not later than 12:00 noon, Boston
time, and in the case of Alternate Base Rate Loans, not later than 11:00
a.m., Boston time, on the Borrowing Date requested by the Company, in
funds immediately available to the Agent at such office. Amounts so
made available to the Agent on a Borrowing Date will, subject to the
satisfaction of the terms and conditions of this Agreement as determined
by the Agent, be made immediately available on such date to the Company
by the Agent at the office of the Agent specified in paragraph 11.1 by
crediting the account of the Company on the books of such office with
the aggregate of said amounts, in like funds as received by the Agent.
Unless the Agent shall have received prior notice from a Bank (by
telephone or otherwise, such notice to be promptly confirmed by telex,
telecopy or other writing) that such Bank will not make available to the
Agent such Bank's pro rata share of the Loans requested by the Company,
the Agent may assume that such Bank has made such share available to the
Agent on such Borrowing Date in accordance with this paragraph, provided
that such Bank received notice of the proposed borrowing from the Agent,
and the Agent may, in reliance upon such assumption, make available to
the Company on such Borrowing Date a corresponding amount. If and to
the extent such Bank shall not have so made such pro rata share
available to the Agent on such Borrowing Date, such Bank shall pay to
the Agent on demand an amount equal to the product of (i) the average
computed for the period referred to in clause (iii) below, of the
weighted average interest rate paid by the Agent for federal funds
acquired by the Agent during each day included in such period, times
(ii) the amount of such Bank's Commitment Percentage of such Loans,
times (iii) a fraction, the numerator of which is the number of days
that elapse from and including such Borrowing Date to the date on which
the amount of such Bank's Commitment Percentage of such Loans shall
become immediately available to the Agent, and the denominator of which
is 365. If such Bank shall pay to the Agent such amount, such amount so
paid shall constitute such Bank's Loan as part of such Loans for
purposes of this Agreement, which Loan shall be deemed to have been made
by such Bank on the date such amount is so paid, but without prejudice
to the Company's rights against such Bank. If and to the extent such
Bank shall not have so made such pro rata share available to the Agent
within three (3) days following such Borrowing Date, the Company shall
pay to the Agent forthwith on demand (but without duplication) an amount
equal to such Bank's Commitment Percentage of such Loans, together with
interest thereon for each day from the date such amount is made
available to the Company until the date such amount is paid to the
Agent, at the applicable interest rate for such Loans as set forth in
paragraph 2.8. Such payment by the Company, however, shall be without
prejudice to its rights against such Bank.
(b) With respect to Bid Rate Loans:
(i) The Company shall give each Bank a request for a Bid
Borrowing which, at the Company's option, shall be by telephone,
telex or telecopy, no later than 10:00 a.m. on the requested date
for such Bid Borrowing (a "Bid Borrowing Date"). No more than
three Bid Borrowings may be requested for any day. Such request
(other than a telephonic request) shall be submitted in the form of
Exhibit D and each request shall specify (A) the requested date of
such Bid Borrowing, which shall be a Business Day, (B) the
principal amount of such Bid Borrowing, which shall be equal to
$500,000 or any multiple of $500,000, (C) the extent to which such
Bid Borrowing is to be applied on the requested date of such Bid
Borrowing to prepay Loans pursuant to paragraph 2.6, and (D) the
maturity date (which shall be a Business Day (1) no earlier than
one day and no later than 180 days, after the requested date of
such Bid Borrowing and (2) no later than the applicable Termination
Date) of Bid Rate Loans to be made pursuant to such Bid Borrowing.
(ii) Each Bank may, in its sole and absolute discretion,
submit, by telephone, telex or telecopy, to the Company no later
than 11:00 a.m. on the Bid Borrowing Date, not more than two bids
for Bid Rate Loans in response to a request for a Bid Borrowing.
Each bid (other than a telephonic bid) shall be submitted in the
form of Exhibit E, and each bid shall (A) identify the Bank making
such bid, (B) identify the Bid Borrowing to which such bid relates,
(C) specify the fixed rate of interest per annum (computed on the
basis of a 360-day year and for the actual number of days elapsed
and expressed in decimals to 1/10,000 of 1%) that such Bank is
willing to offer for a Bid Rate Loan to be made as part of such Bid
Borrowing, and (D) specify the maximum and minimum principal amount
of the Bid Rate Loan such Bank is willing to make at such rate as
part of such Bid Borrowing, which amount may exceed such Bank's
Tranche A Commitment or Tranche B Commitment, as the case may be,
at such time. All bids of a Bank with respect to Bid Borrowings to
be made at the same time must be submitted by such Bank at the same
time. No such bid may contain qualifying, conditional or similar
language or contain proposed terms other than those specified in
this paragraph (ii). Each such bid shall be irrevocable and may
not be modified except to correct a manifest error therein that has
not been relied upon by the Company.
(iii) Not later than 12:00 p.m. on the Bid Borrowing Date,
the Company shall telephonically notify (which telephonic notice
shall be promptly confirmed in writing by facsimile in
substantially the form of Exhibit F) each of the Banks that
submitted an accepted bid with respect to the applicable Bid
Borrowing (which notice shall be irrevocable except, with respect
to notices that have not yet been relied upon by any Bank, in the
case of manifest error) that such bids were accepted and shall
identify such bids and the respective amounts thereof so accepted.
Concurrently with the notification to the Banks of any accepted
bids, the Company shall notify the Agent in substantially the form
of Exhibit F, and shall identify (A) the Bank making such Loan, (B)
the date of the Loan, (C) the amount of the Loan and (D) the terms
of the Loan. Each bid that the Company has not notified the Banks
by such time that it is accepting shall be deemed to have been
rejected. The Company may accept or reject any bid in whole or in
part; provided, however, that (A) the Company may not accept bids
to the extent that, after giving effect thereto, the aggregate
unpaid principal amount of all Tranche A Loans or Tranche B Loans
of all of the Banks at such time would exceed the aggregate amount
of the Tranche A Commitments or Tranche B Commitments, as the case
may be, of all of the Banks at such time, (B) the aggregate
principal amount of bids accepted with respect to any Bid Borrowing
may not exceed the principal amount specified for such Bid
Borrowing in the request therefor, and (C) the aggregate principal
amount of any bid by any Bank accepted with respect to a Bid
Borrowing may not exceed the maximum, nor be less than the minimum,
aggregate principal amount thereof specified in such Bank's
response to the request for such Bid Borrowing.
(iv) Not later than 1:00 p.m. on the date of each Bid
Borrowing, each Bank that has had accepted all or part of any bid
made by it with respect to such Bid Borrowing shall wire transfer
the amount of the Bid Rate Loan or Loans to be made by such Bank as
part of such Bid Borrowing to the Company's account with the Agent,
in Dollars immediately available.
(v) Bid Borrowings shall be disbursed by the Agent not later
than 2:00 p.m. on the date specified therefor in the following
order: (A) first, to be applied by the Agent to repay Bid Rate
Loans maturing or matured as of the date of such Bid Borrowing, (B)
second, to be applied by the Agent to prepay Loans as specified in
paragraph 2.03(b)(i)(C) and for which payments a notice of
prepayment shall have been duly given in accordance with paragraph
2.6 and (C) third, by credit to an account of the Company at the
Agent's Office or in such other manner as may have been specified
in the applicable notice and as shall be acceptable to the Agent,
in each case in Dollars immediately available to the Company or the
appropriate Bank, as the case may be.
(vi) Each Bid Borrowing shall be deemed a reduction of the
unused Tranche A Commitments and then, to the extent that there are
no unused Tranche A Commitments, a reduction of the unused Tranche
B Commitments, of each Bank in an amount equal to such Bank's
pro-rata share (determined in accordance with their respective
Tranche A Commitments or Tranche B Commitments, as the case may
be,) of the aggregate amounts of Bid Rate Loans made pursuant to
such Bid Borrowing, whether or not such Bank shall have made any
Bid Rate Loan, and notwithstanding the amount of any Bid Rate Loan
made by such Bank, as a part of such Bid Borrowing. The unused
Tranche A Commitment or Tranche B Commitment, as the case may be,
of each Bank shall, upon repayment of a Bid Rate Loan not later
than the applicable Termination Date, be reinstated in the amount
of the corresponding reduction effected pursuant to the preceding
sentence.
(vii) If (A) (1) the Company shall, on a Bid Borrowing Date,
fail to accept bids in an aggregate amount sufficient to repay the
Bid Rate Loans maturing or matured as of such day, or (2) if bids
submitted in response to a request for a Bid Borrowing are in an
aggregate amount insufficient to pay the Bid Rate Loan or Loans
maturing or matured as of the day of such Bid Borrowing and (B) Bid
Rate Loans maturing on such day shall not otherwise be repaid on
such day, the Company shall, unless it provides written notice to
the Agent to the contrary by 11:00 a.m. on such day, be deemed to
have duly requested Alternate Base Rate Loans to be made on such
date in an amount sufficient to repay the balance of such maturing
and matured Bid Rate Loans.
(viii) The parties may, by agreement among the Company, the
Agent and each of the Banks, adopt in writing alternative
procedures (including alternative time schedules) for requesting,
offering and consummating Bid Rate Loans.
2.4 Notes. Loans made by each Bank with respect to Alternate
Base Rate Loans and Eurodollar Rate Loans shall be evidenced by a
promissory note of the Company, substantially in the form of Exhibit G-
1, and with respect to Bid Rate Loans shall be evidenced by a promissory
note of the Company substantially in the form of Exhibit G-2 (a "Bid
Rate Note"), all with appropriate insertions therein (as endorsed and as
amended or otherwise modified from time to time, a "Note" and,
collectively, the "Notes"), payable to the order of such Bank and
representing the obligation of the Company to pay the aggregate unpaid
principal amount of all Loans made by such Bank, with interest thereon
as prescribed or determined herein. Each Bank is hereby authorized to
record the date and amount of each Loan made by such Bank and the other
information applicable thereto, and each payment or prepayment of
principal of, such Loan, on the applicable grid (and any continuations
thereof) annexed to and constituting a part of its Note. No failure to
so record or any error in so recording shall affect the obligation of
the Company to repay such Loans, with interest thereon, as herein
provided. Each Note shall (a) be dated the date the initial Loans are
made, (b) be stated to mature on the Tranche A Termination Date or
Tranche B Termination Date, as the case may be, and (c) bear interest
for the period from and including the date thereof on the unpaid
principal amount thereof from time to time outstanding at the applicable
interest rate per annum determined as provided herein.
2.5 Voluntary Reductions of the Aggregate Commitments:
Termination.
(a) Voluntary Reductions. During the period from the Effective
Date to the Tranche A Termination Date and the Tranche B Termination
Date, as the case may be, the Company shall have the right, upon at
least two Business Days' prior written notice to the Agent, to reduce
permanently the Aggregate Tranche A Commitments or Tranche B
Commitments, as the case may be, in whole at any time, or in part from
time to time, without premium or penalty, provided that (i) each partial
reduction of such Aggregate Commitments shall be in an amount equal to
at least $500,000 or such amount plus a whole multiple of $500,000, and
(ii) such Aggregate Commitments shall not be reduced to an amount less
than the aggregate principal balance of the Tranche A Loans or the
Tranche B Loans, as the case may be, outstanding on the date of such
reduction (after giving effect to reductions in such balance made on
such date). Upon such Aggregate Commitments being permanently reduced
to zero prior to such Termination Date and upon payment in full of such
Loans and all other sums due hereunder and under such Notes, this
Agreement shall be deemed terminated with respect to the Tranche A Loans
or the Tranche B Loans, or both, as the case may be, except to the
extent that any provisions hereof expressly survive such payment.
(b) General. Reductions of the Aggregate Commitments under
clause (a) above shall reduce each Bank's Commitment pro rata according
to the Commitment Percentage of such Bank. The Agent shall promptly
notify each Bank of each reduction in the Aggregate Commitments under
clause (a) above upon its receipt of notice thereof, and remit to each
Bank its pro rata share of any accompanying prepayments of the Loans
according to the outstanding principal balance of the Loans.
Simultaneously with each reduction of the Aggregate Commitments under
this paragraph 2.5, the Company shall prepay the Loans in the amount, if
any, by which the aggregate unpaid principal balance of the Loans
exceeds the amount of the Aggregate Commitments as so reduced.
If any prepayment is made under this paragraph 2.5 with respect to
any Eurodollar Rate Loans, in whole or in part, prior to the last day of
the applicable Interest Period with respect thereto, the Company agrees
that it shall indemnify the Banks in accordance with paragraph 2.12.
After giving effect to any prepayment with respect to Eurodollar Rate
Loans, no Eurodollar Rate Loans made (whether as a result of Borrowing
or a conversion) on the same date and having the same Interest Period
shall be outstanding in an aggregate principal amount of less than
$500,000.
2.6 Prepayments and Payment of Loans.
(a) Voluntary Prepayments. The Company may, at its option,
prepay Alternate Base Rate Loans or Eurodollar Rate Loans in whole or in
part, without premium or penalty, subject to its obligation to indemnify
provided in paragraph 2.12 (in the case of Eurodollar Rate Loans), at
any time and from time to time upon at least one Business Day's prior
irrevocable written notice to the Agent, specifying the amount to be
prepaid, and the date and amount of prepayment. Upon receipt of such
notice, the Agent shall promptly notify each Bank thereof. Any such
notice shall be irrevocable and the amount specified in such notice
shall be due and payable on the date specified therein, together with
accrued interest to the date of such payment on the amount being
prepaid. Prepayments shall be in an aggregate principal amount of at
least $500,000 or, if less, the outstanding principal balance of the
applicable Notes, provided, however, that after giving effect to any
such prepayment, no Eurodollar Rate Loans made (whether as the result of
Borrowing or a conversion) on the same date and having the same Interest
Period shall be outstanding in an aggregate principal amount of less
than $500,000.
(b) Mandatory Repayment. On each Termination Date, as may be
extended in accordance with the terms of paragraph 2.15 hereof, the
Company shall repay in full the aggregate principal balance of all
Tranche A Loans and Tranche B Loans, as the case may be, outstanding on
such date, together with accrued interest on such amount to such date
and any Facility Fees, Agent's Fees or other amounts owing hereunder or
under the Notes.
(c) Prepayments of Bid Rate Loans. Bid Rate Loans may not be
prepaid.
2.7 Conversion Options.
(a) Conversion of Pro Rata Loans. The Company may elect from
time to time to convert Eurodollar Rate Loans to Alternate Base Rate
Loans by giving the Agent at least one Business Day's prior notice of
such election (in substantially the form of Borrowing Request attached
hereto as Exhibit C), specifying the amount to be so converted,
provided, that any such conversion of Eurodollar Rate Loans shall only
be made on the last day of the Interest Period applicable thereto. In
addition, in the absence of an Event of Default, the Company may elect
from time to time to convert Alternate Base Rate Loans to Eurodollar
Rate Loans, by giving the Agent at least two Business Day's prior
irrevocable notice of such election, specifying the amount to be so
converted and the Interest Period selected, provided that any such
conversion of Alternate Base Rate Loans to Eurodollar Rate Loans shall
only be made on a Business Day. The Agent shall promptly provide the
Banks with notice of any such election. Loans may be converted pursuant
to this paragraph 2.7, in whole or in part, provided that conversions of
Alternate Base Rate Loans to Eurodollar Rate Loans or Eurodollar Rate
Loans to Alternate Base Rate Loans shall be in an aggregate principal
amount of at least $500,000. After giving effect to any such
conversion, no Eurodollar Rate Loans made (whether as the result of a
borrowing or a conversion) on the same date and having the same Interest
Period shall be outstanding in an aggregate principal amount of less
than $500,000. A conversion of a Loan in accordance with this paragraph
2.7 shall not require the Company to comply with the conditions to
Borrowing set forth in paragraph 6.
(b) Continuation of Pro Rata Loans. Any Eurodollar Rate Loans
may be continued as such upon the expiration of any Interest Period with
respect thereto by the Company's giving irrevocable written notice (in
substantially the form of Borrowing Request attached hereto as
Exhibit C) to the Agent of its intention to do so two Business Days
prior to the last day of such Interest Period, specifying the new
Interest Period therefor, provided, however, that (i) if the Company
shall fail to give notice as provided above, the relevant Eurodollar
Rate Loan shall convert to an Alternate Base Rate Loan immediately upon
the expiration of the then current Interest Period with respect thereto,
(ii) any Eurodollar Rate Loans that are being continued as such shall be
in an aggregate principal amount of at least $500,000 and (iii) no
Eurodollar Rate Loans may be continued as such when any Event of Default
has occurred and is continuing, but shall be automatically converted to
an Alternate Base Rate Loan on the last day of the Interest Period with
respect thereto during which the Agent obtained knowledge of such Event
of Default. The Agent shall notify the Banks promptly upon obtaining
knowledge that an automatic conversion will occur pursuant to clause
(iii) hereof.
(c) Restrictions on Conversion and Continuation of Bid Rate
Loans. Bid Rate Loans may not be converted or continued, except as
required under paragraph 2.11(b).
2.8 Interest Rate and Payment Dates for Loans.
(a) Interest Rates for Loans Prior to Maturity. (i) Loans made
as Alternate Base Rate Loans shall bear interest for the period from and
including the date thereof, or, in the case of a Loan that has been
converted from a Eurodollar Rate Loan, from the Conversion Date thereof,
until maturity or until converted into Eurodollar Rate Loans, on the
unpaid principal amount thereof at the Alternate Base Rate, and (ii)
Loans made as Eurodollar Rate Loans shall bear interest for each
Interest Period with respect thereto on the unpaid principal amount
thereof at the applicable rate of interest per annum based on the
Eurodollar Rate for each such Interest Period plus the Applicable Margin
for such period based on the Debt Rating of the Company, provided that
if the Company has no Debt Rating, the Applicable Margin shall be the
highest rate per annum applicable to such Loans during the relevant
period and (iii) Loans made as Bid Rate Loans shall bear interest in
accordance with paragraph 2.3(b). Any change in the Applicable Margin
with respect to any Loans resulting from a change in the Debt Rating of
the Company shall be effective as of the opening of business on the day
of the change in the Debt Rating of the Company.
(b) Overdue Amounts. If any amounts payable hereunder shall not
be paid when due (whether at the stated maturity thereof, by
acceleration, notice of intention to prepay or otherwise), such overdue
amounts shall bear interest payable on demand at a rate per annum equal
to 2% above the (i) Alternate Base Rate for Alternate Base Rate Loans at
such time from the date of such nonpayment until paid in full, and
whether before or after the entry of any judgment thereon, (ii) sum of
the Eurodollar Rate plus the Applicable Margin for Eurodollar Rate
Loans, from the date of such nonpayment until the end of the Interest
Period with respect thereto and whether before or after the entry of any
judgment thereon and (iii) Bid Rate for Bid Rate Loans, from the date of
such nonpayment until the end of the Interest Period with respect
thereto and whether before or after the entry of any judgment thereon.
(c) General. Interest on the Loans shall be payable in arrears
on each Interest Payment Date and upon payment (including prepayment) in
full thereof; provided, however, that after an Event of Default has
occurred and is continuing, interest on all Loans shall be payable on
demand made from time to time. At no time shall the interest rate
payable on the Loans, together with the Agent's Fees, the Facility Fee
and all other fees and amounts payable hereunder and under the Notes, to
the extent that any of the same are construed to constitute interest,
exceed the maximum rate of interest permitted by law. The Company
acknowledges that to the extent interest payable on the Loans is based
upon the Alternate Base Rate, such Rate is only one of the bases for
computing interest on loans made by the Banks, and by basing interest
payable upon the Loans upon the Alternate Base Rate, the Banks have not
committed to charge, and the Company has not in any way bargained for,
interest based on a lower or the lowest rate at which the Banks may now
or in the future make loans to other borrowers.
2.9 Substituted Interest Rate. In the event that the Agent shall
have reasonably determined in good faith (which determination shall be
conclusive and binding upon the Company) that by reason of circumstances
affecting the London interbank eurodollar market, (i) either adequate
and reasonable means do not exist for ascertaining a Eurodollar Rate
applicable pursuant to paragraph 2.8(a), or (ii) any Bank shall have
notified the Agent that it has reasonably determined in good faith
(which determination shall be conclusive and binding on the Company)
that the Eurodollar Rate will not adequately and fairly reflect the cost
to such Bank of making or maintaining its funding of a Eurodollar Rate
Loan with respect to (a) a proposed Loan that the Company has requested
be made as a Eurodollar Rate Loan, or (b) a Eurodollar Rate Loan that
will result from the requested conversion of any Loan into a Eurodollar
Rate Loan (any such Loan being herein called an "Affected Loan"), the
Agent shall promptly notify the Company and the Banks (by telephone or
otherwise) of such determination no later than 10:00 a.m. (Boston time)
one Business Day prior to the requested Borrowing Date for such Affected
Loan, or the requested Conversion Date of such Loan, as the case may be.
If the Agent shall give such notice, the Company may by no later than
11:00 a.m. (Boston time) on the same Business Day, (i) cancel the
Borrowing Request with respect to such Affected Loan or request that
such Affected Loan be made as an Alternate Base Rate Loan or as a Bid
Rate Loan in accordance with paragraph 2.3 hereof or (ii) cancel its
request to convert to an Affected Loan or request that any Loan that was
to have been converted to an Affected Loan be converted to an Alternate
Base Rate Loan or a Bid Rate Loan in accordance with paragraph 2.3
hereof. Until such notice has been withdrawn by the Agent (by notice to
the Company promptly upon the Agent having been notified by such Bank
that circumstances would no longer render any Loan an Affected Loan) no
further Affected Loans shall be made and Company shall not have the
right to convert any Loan to an Affected Loan.
2.10 Illegality. Notwithstanding any provision hereof to the
contrary, if any change in any law, regulation, treaty or directive, or
in the interpretation or application thereof, shall make it unlawful for
any Bank to make or maintain Eurodollar Rate Loans as contemplated by
this Agreement, (a) the commitment of such Bank hereunder to make
Eurodollar Rate Loans or to convert Alternate Base Rate Loans to
Eurodollar Rate Loans or to continue Eurodollar Rate Loans as such shall
forthwith be suspended and (b) such Bank's Loans then outstanding as
Eurodollar Rate Loans shall be converted to Alternate Base Rate Loans on
the last day of the then current Interest Period applicable thereto, or
within such earlier period as required by law. If the commitment of any
Bank with respect to Eurodollar Rate Loans is suspended pursuant to this
paragraph 2.10 and it shall once again become legal for such Bank to
make or maintain its funding of Eurodollar Rate Loans, such Bank's
commitment to make or maintain such Eurodollar Rate Loans shall be
reinstated. Each Bank agrees to promptly notify the Company and the
Agent upon learning of any change referred to above, as well as of any
reinstatement of its ability to make and maintain Eurodollar Rate Loans
as contemplated by this Agreement.
2.11 Increased Costs.
(a) Regulatory Changes. In the event that any change in any law,
regulation, treaty or directive or in the interpretation or application
thereof by any Governmental Body charged with the administration thereof
or compliance by any Bank with any request or directive from any central
bank or other Governmental Body (a "Regulatory Change"):
(i) subjects any Bank to any tax of any kind whatsoever with
respect to any Eurodollar Rate Loan or its obligations under this
Agreement to make Eurodollar Rate Loans, or changes the basis of
taxation of payments to such Bank of principal, interest or any
other amount payable hereunder in respect of its Eurodollar Rate
Loans (except for imposition of, or change in the rate of, tax on
the overall net income of such Bank);
(ii) imposes, modifies or makes applicable any reserve,
special deposit, compulsory loan, assessment or similar requirement
against assets held by, or deposits of, or advances or loans by, or
other credit committed or extended by, or any other acquisition of
funds by, any office of such Bank in respect of its Eurodollar Rate
Loans which is not otherwise included in the determination of a
Eurodollar Rate; or
(iii) imposes on such Bank any other condition with respect
to Loans hereunder or the Commitments;
and the result of any of the foregoing is to increase the cost to such
Bank of making, renewing, converting or maintaining its Eurodollar Rate
Loans, or to reduce any amount receivable in respect of its Eurodollar
Rate Loans, then, in any such case, the Company shall promptly pay to
such Bank, upon its demand, any additional amounts necessary to
compensate such Bank for such additional cost or reduction in such
amount receivable. A statement setting forth the calculations of any
additional amounts payable pursuant to the foregoing sentence submitted
by a Bank to the Company shall be presumed to be correct absent manifest
error.
(b) Automatic Conversion. A Bank's Bid Rate Loans of any Type
shall be converted into Alternate Base Rate Loans (in the case of clause
(i) below, on the last day such Bank may lawfully continue to maintain
Loans of that Type, and, in the case of clause (ii) below, on the day
determined by such Bank to be the last Business Day before the effective
date of the applicable restriction) if:
(i) at any time such Bank determines that any Regulatory
Change makes it unlawful for such Bank to maintain any Bid Rate
Loan of that Type, or to comply with its obligations hereunder in
respect thereof; or
(ii) such Bank determines that, by reason of any Regulatory
Change, such Bank is restricted, directly or indirectly, in the
amount that it may hold of (A) a category of liabilities that
includes deposits by reference to which, or on the basis of which,
the interest rate applicable to Bid Rate Loans of that Type is
directly or indirectly determined, or (B) the category of assets
that includes Bid Rate Loans of that Type.
(c) Treatment of Converted Loans. If, as a result of paragraph
2.11(b), any Loan of any Bank that would otherwise be maintained as a
Bid Rate Loan of any Type for any Interest Period is instead converted
into an Alternate Base Rate Loan, then, such Loan shall be treated as
being a Bid Rate Loan of such Type for such Interest Period for all
purposes of this Agreement (including the timing, application and
proration among the Banks of interest payments, conversions and
prepayments) except for the calculation of the interest rate borne by
such Loan. The Agent shall promptly notify the Company and each Bank of
the existence or occurrence of any condition or circumstance specified
in Section 2.11(b)(i), and each Bank shall promptly notify the Company
and the Agent of the existence or occurrence of any condition or
circumstances specified in Sections 2.11(b)(ii) applicable to such
Bank's Loans, but the failure by the Agent or such Bank to give any such
notice shall not affect such Bank's rights hereunder.
2.12 Indemnity. Notwithstanding anything contained herein to the
contrary, if the Company shall fail to borrow on a Borrowing Date after
it shall have given a Borrowing Request, to the extent only that such
Borrowing Request includes Eurodollar Loans or Bid Rate Loans, or if the
right of the Company to have Eurodollar Rate Loans or Bid Rate Loans
outstanding hereunder shall be suspended or terminated in accordance
with the provisions of this Agreement prior to the last day of the
Interest Period applicable thereto, or if, while a Eurodollar Rate Loan
or Bid Rate Loan is outstanding, any repayment or prepayment of the
principal amount of such Eurodollar Rate Loan or Bid Rate Loan is made
for any reason (including, without limitation, as a result of
acceleration or illegality) on a date which is prior to the last day of
the Interest Period applicable thereto, the Company agrees to indemnify
each Bank against, and to pay on demand directly to such Bank, an
amount, if greater than zero, equal to (i) with respect to Eurodollar
Rate Loans,
A x (B - C) x D
-
365
where:
"A" equals the Affected Principal Amount;
"B" equals the Eurodollar Rate (expressed as a
decimal), as the case may be, applicable to such
Eurodollar Rate Loan;
"C" equals the applicable Eurodollar Rate (expressed
as a decimal), as the case may be, in effect on the
date of such failure to borrow, termination,
prepayment or repayment, based on the applicable
rates offered or bid, as the case may be, on such
date (or, if no such rate is determinable on such
date, the rate or rates offered or bid, as the case
may be, determinable on the date closest thereto),
for deposits in an amount equal approximately to the
Affected Principal Amount with an Interest Period
equal approximately to the period commencing on the
first day of such Remaining Interest Period and
ending on the last day of such Remaining Interest
Period or ending on the last day of the applicable
Interest Payment Period, as the case may be, as
determined by the Bank;
"D" equals the number of days from and including the
first day of the Remaining Interest Period to but
excluding the last day of such Remaining Interest
Payment Period;
and (ii) with respect to both Eurodollar Rate Loans and Bid Rate Loans,
any additional amounts necessary to compensate such Bank for such
additional cost or reduction in such amount receivable and any other
out-of-pocket loss or expense (including any internal processing charge
customarily charged by such Bank) suffered by such Bank in liquidating
deposits prior to maturity in amounts which correspond to the proposed
borrowing, prepayment or repayment. The determination by each Bank of
the amount of any such loss or expense shall be presumed to be correct
absent manifest error.
2.13 Use of Proceeds. The proceeds of the Loans shall be used
for working capital and other general corporate purposes.
2.14 Capital Adequacy. If either (i) the introduction of, or any
change or phasing in of, any law or regulation or in the interpretation
thereof by any Governmental Body charged with the administration thereof
or (ii) compliance with any directive, guideline or request from any
central bank or Governmental Body (whether or not having the force of
law) promulgated or made after the date hereof (but including, in any
event, any law, rule, regulation, interpretation, directive, guideline
or request contemplated by the report dated July 1988 entitled
"International Convergence of Capital Measurement and Capital Standards"
issued by the Basle Committee on Banking Regulations and Supervisory
Practices) affects or would affect the amount of capital required or
expected to be maintained by a Bank (or any lending office of such Bank)
or any corporation directly or indirectly owning or controlling such
Bank (or any lending office of such Bank) and such Bank shall have
determined that such introduction, change or compliance has or would
have the effect of reducing the rate of return on such Bank's capital or
the asset value to such Bank of any Loan made by such Bank as a
consequence, directly or indirectly, of its obligations to make and
maintain the funding of Loans hereunder to a level below that which such
Bank could have achieved but for such introduction, change or compliance
(after taking into account such Bank's policies regarding capital
adequacy) by an amount deemed by such Bank to be material, then, upon
demand by such Bank, the Company shall promptly pay to such Bank such
additional amount or amounts as shall be sufficient to compensate such
Bank for such reduction on the rate of return. Each Bank shall
calculate such amount or amounts payable to it under this paragraph 2.14
in a manner consistent with the manner in which it shall calculate
similar amounts payable to it by other borrowers having provisions in
their credit agreements comparable to this paragraph 2.14. Each Bank
agrees to provide the Company with a certificate setting forth a
description of any such amount in respect of which it seeks payment
under this paragraph 2.14. Each Bank's determination of such amount or
amounts that will compensate such Bank for such reductions shall be
presumed correct absent manifest error.
2.15 Extension of Termination Date. With respect to Tranche A
Loans, the Company may, pursuant to a Commitment Extension Request in
the form of Exhibit H delivered to the Agent and each Bank not less than
75 days prior to the then scheduled Termination Date, request each Bank
to extend its Commitment for an additional three-hundred sixty-four
(364) day period expiring on the 364th day of such period (or, if such
date is not a Business Day, on the immediately preceding Business Day).
With respect to Tranche B Loans, the Company may request each Bank to
extend its Commitment on no more than two (2) occasions pursuant to a
Commitment Extension Request delivered to the Agent and each Bank not
less than 75 days prior to the first and second anniversaries of the
date hereof for additional one-year periods expiring on the fourth and
fifth anniversaries of the date hereof, respectively (or, if such date
is not a Business Day, on the next succeeding Business Day). Each of
the Banks shall, within 45 days of receipt of a Commitment Extension
Request from the Company, provide the Company with a non-binding
preliminary indication regarding whether such Bank is likely to consent
to the extension of its Commitment. If all Banks consent to the
extension of their respective Commitments, which consents shall be given
no less than 30 days prior to the then scheduled applicable Termination
Date, by signing and returning an original copy of the Commitment
Extension Request attached hereto as Exhibit H, such Termination Date
shall be so extended, and each Bank hereby agrees that the Agent may
amend this Agreement and any other Loan Document to the extent necessary
to effectuate such extension without the necessity of obtaining any such
Bank's signature, the provisions of paragraph 13 to the contrary
notwithstanding. In the event that less than all of the Banks consent
to an extension of their respective Commitments, such Termination Date
shall not be extended, unless the Company designates another bank
reasonably satisfactory to the Banks willing so to extend such
Termination Date, or one or more of the signatory Banks elect to
increase its or their Commitments to the amount of the Commitment of the
nonconsenting Bank (any such other bank, including any signatory Bank,
to the extent of, and with respect to such an increase in its
Commitment, being herein called a "Replacement Bank"), to assume the
Commitment and obligations of such nonconsenting Bank or Banks (each, a
"Nonconsenting Bank") with respect to its Loans, and to purchase the
outstanding Note of such nonconsenting Bank and such Nonconsenting
Bank's rights with respect to its Loans, without recourse or warranty,
for a purchase price equal to the outstanding principal balance of the
Note of such Nonconsenting Bank, plus all interest accrued thereon and
all other amounts owing to such Nonconsenting Bank hereunder. Upon such
assumption and purchase by a Replacement Bank, and provided that the
Banks (excluding the Nonconsenting Banks and each Replacement Bank) have
consented to the Commitment Extension Request prior to the then
scheduled Termination Date, (i) such Termination Date shall be so
extended, (ii) each such Replacement Bank shall be deemed to be a "Bank"
for purposes of this Agreement, and (iii) each Nonconsenting Bank shall
cease to be a "Bank" for all purposes of this Agreement (except with
respect to its rights hereunder to be reimbursed for costs and expenses,
and to indemnification with respect to, matters attributable to events,
acts or conditions occurring prior to such assumption and purchase) and
shall no longer have any obligations hereunder.
Each Bank will use its best efforts to respond promptly to any
Commitment Extension Request, provided that no Bank's failure to so
respond shall create any claim against it or have the effect of
extending such applicable Termination Date.
2.16 Notice of Costs: Substitution of Banks. Each Bank will
notify the Company of any event that will entitle such Bank to
compensation under paragraphs 2.11 and 2.14 as promptly as practicable,
but in any event within 45 days after an officer of the Bank responsible
for matters concerning this Agreement has knowledge of such event. If
such Bank fails to give such notice, such Bank shall only be entitled to
such compensation for the period commencing on the date of the giving of
such notice. Each Bank shall use its best efforts to avoid the need to
give a notice under paragraph 2.11 or 2.14 by designating a different
Applicable Lending Office outside of the United States if such
designation would avoid the need to give such notice and will not, in
the sole opinion of such Bank, be disadvantageous to such Bank. In the
event the Company receives such notice or is otherwise required under
the provisions of paragraphs 2.11 or 2.14 to make payments in a material
amount to any Bank, the Company may, so long as no Event of Default
shall have occurred and be continuing, elect to substitute such Bank as
a party to this Agreement; provided that, concurrently with such
substitution, (i) the Company shall pay that Bank all principal,
interest and fees and other amounts (including without limitation,
amounts, if any, owed under paragraph 2.11, 2.12 or 2.14) owed to such
Bank through such date of termination, (ii) another commercial bank
satisfactory to the Company and the Agent (or if the Agent is also the
Bank to be substituted, the successor Agent) shall agree, as of such
date, to become a Bank (whether by assignment or amendment) for all
purposes under this Agreement and to assume all obligations of the Bank
to be substituted as of such date, and (iii) all documents, supporting
materials and fees necessary, in the judgment of the Agent (or if the
Agent is also the Bank to be substituted, the successor Agent) to
evidence the substitution of such Bank shall have been received and
approved by the Agent as of such date.
2.17 Regulatory Approvals.
(a) Anything herein to the contrary notwithstanding, if the
Company has not received all required approvals in connection with the
Tranche B Loans from the VPSB on or prior to the Effective Date or
within 120 days after the Effective Date, all Loans made hereunder shall
be deemed to be Tranche A Loans and the Tranche A Loan Aggregate
Commitments shall be equal to the amount of the Total Commitments as set
forth on Exhibit A.
(b) Anything herein to the contrary notwithstanding, if the
Company has not received all required approvals in connection with the
Tranche B Loans from the VPSB on or prior to the Effective Date but
receives such approvals on or prior to that date which is 120 days from
the Effective Date, from and after the tenth (10th) Business Day after
receipt by the Banks of such approvals, paragraph 2.17(a) shall no
longer apply and the Tranche A Loan Aggregate Commitments and the
Tranche B Loan Aggregate Commitments shall be as set forth on Exhibit A.
2.18 Increase of Commitments. So long as the Company has
received all required approvals in connection with the Tranche B Loans,
the Company may, at its option, obtain Loans from any bank or other
institutional lender (including a Bank) so long as the Aggregate
Tranche A Commitments shall not at any time exceed $20,000,000 and the
Aggregate Tranche B Commitments shall not at any time exceed $40,000,000
and that as a condition precedent to any such Loans, any such bank or
other institutional lender that is not a Bank (i) shall be subject to
the prior written approval of the Agent, which approval shall not be
unreasonably withheld or delayed, and (ii) shall become a party to this
Agreement as a "Bank", as defined herein, and thereafter shall be deemed
to be a "Bank" for purposes of this Agreement. Each such Loan shall be
made pro rata as between Tranche A Loans and Tranche B Loans such that
one-third (1/3) shall be applied as a Tranche A Loan and two-thirds
(2/3) shall be applied as a Tranche B Loan.
3. FEES; PAYMENTS.
3.1 Facility Fee. The Company agrees to pay to the Agent for the
account of the Banks a fee (the "Facility Fee") equal to the rate per
annum determined by reference to Exhibit B hereto based upon the Debt
Rating of the Company multiplied by the Aggregate Commitment, which
Facility Fee shall be payable in arrears on the last day of each March,
June, September and December of each year, commencing on the first such
date following the Effective Date and continuing until the later of the
applicable Termination Date or the date all sums due hereunder and under
the Tranche A Notes or Tranche B Notes, as the case may be, are paid in
full; provided that if the Company has no Debt Rating, the Facility Fee
shall be determined at the highest rate per annum for the relevant
period set forth on Exhibit B.
3.2 Fees of the Agent. The Company agrees to pay to the Agent
for its own account, such fees (the "Agent's Fees") for its services
hereunder in such amounts and at such times as previously agreed upon by
the Company and the Agent.
3.3 Computation of Interest and Fees.
(a) Interest in respect of Alternate Base Rate Loans and all
other fees payable by the Company hereunder shall be calculated on the
basis of a 365-day year (or 366-day year in a leap year) for the actual
number of days elapsed. Interest in respect of Eurodollar Rate Loans
and Bid Rate Loans and the Facility Fee shall be calculated on the basis
of a 360-day year for the actual number of days elapsed. Any change in
the interest rate on a Loan resulting from a change in the Alternate
Base Rate or Eurodollar Rate shall become effective as of the opening of
business on the day on which such change shall become effective. The
Agent shall, as soon as practicable, notify the Company and the Banks of
the effective date and the amount of each such change but failure of the
Agent to do so shall not in any manner affect the obligation of the
Company to pay interest on the Loans in the amounts and on the dates
required.
(b) Each determination of the Alternate Base Rate or the
Eurodollar Rate by the Agent pursuant to any provision of this Agreement
shall be presumed to be correct absent manifest error.
3.4 Pro Rata Treatment and Application of Principal Payments.
Each Borrowing by the Company from the Banks, any conversion of Loans
from one Type to the same or another Type, and any reduction of the
Aggregate Commitments of the Banks, shall be made pro rata according to
the Commitment Percentage of each Bank. All payments (including
prepayments) to be made by the Company on account of principal and
interest on Loans comprising the same Borrowing shall be made pro rata
according to the outstanding principal amount of each Bank's Loans. All
payments by the Company on all Loans shall be made without set-off or
counterclaim and shall be made prior to 12:00 noon, Boston time, on the
date such payment is due, to the Agent for the account of the Banks at
the Agent's office specified in paragraph 11.1, in each case in lawful
money of the United States of America and in immediately available
funds, and, as between the Company and the Banks, any payment by the
Company to the Agent for the account of the Banks shall be deemed to be
payment by the Company to the Banks; provided, however, that any payment
received by the Agent on any Business Day after 12:00 noon shall be
deemed to have been received on the immediately succeeding Business Day.
The Agent shall distribute such payments to the Banks promptly upon
receipt in like funds as received. If any payment hereunder or on any
Note becomes due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day
(unless, in the case of Eurodollar Loans, the result of such extension
would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business
Day) and, with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension.
4. REPRESENTATIONS AND WARRANTIES. In order to induce the Agent and
the Banks to enter into this Agreement, the Company hereby represents
and warrants to the Agent and to each Bank that:
4.1 Subsidiary. The Company has the Subsidiaries set forth in
Exhibit I. The shares of each corporate Subsidiary owned by the Company
are duly authorized, validly issued, fully paid and non-assessable and
are owned free and clear of any Liens, except Liens permitted by
paragraph 8.2.
4.2 Corporate Existence and Power. The Company is a corporation
duly organized, validly existing and in good standing under the laws of
the State of Vermont and has all requisite corporate power and authority
to own its Property and to carry on its business as now conducted. The
Company is in good standing and duly qualified to do business in each
jurisdiction in which the failure to so qualify would have a Material
Adverse Effect.
4.3 Corporate Authority. The Company has full corporate power
and authority to enter into, execute, deliver and carry out the terms of
this Agreement and to make the borrowings contemplated hereby, to
execute, deliver and carry out the terms of the Notes and to incur the
obligations provided for herein and therein, all of which have been duly
authorized by all necessary corporate action on its part and are in full
compliance with its Charter and By-Laws. No consent or approval of, or
exemption by, shareholders or any Governmental Body is required to
authorize, or is required in connection with the execution, delivery and
performance of, this Agreement and the Notes, or is required as a
condition to the validity or enforceability of this Agreement and the
Notes, except for the approval of the VPSB referred to in paragraph 5.6.
4.4 Binding Agreement. This Agreement constitutes, and the
Notes, when issued and delivered pursuant hereto for value received,
will constitute, the valid and legally binding obligations of the
Company enforceable against the Company in accordance with their
respective terms, except as such enforceability may be limited by
equitable principles and by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally.
4.5 Litigation. Except for the matters set forth in the
Designated Documents, and except for the retail rate increase request
filed by the Company with the VPSB on June 16, 1997, there are no
actions, suits or arbitration proceedings (whether or not purportedly on
behalf of the Company or any Subsidiary) pending or to the knowledge of
the Company threatened against the Company or any Subsidiary, or
maintained by the Company or any Subsidiary, in law or in equity before
any Governmental Body which, if decided adversely to the Company or such
Subsidiary, would have a Material Adverse Effect upon the Company after
giving effect to reserves reflected in the Financial Statements or the
footnotes thereto. There are no proceedings pending or to the knowledge
of the Company threatened against the Company which call into question
the validity and enforceability of this Agreement or the Notes.
4.6 Non Conflicting Agreements. Except for the matters set forth
in the Designated Documents, the Company is not in default under any
agreement to which it is a party or by which it or any of its Property
is bound, the effect of which would have a Material Adverse Effect upon
the Company. No provision of the Charter or By-Laws of the Company, and
no provision of any existing mortgage, indenture contract, agreement,
statute (including, without limitation, any applicable usury or similar
law), rule, regulation, judgment, decree or order binding on the Company
or any Subsidiary could in any way prevent the execution, delivery or
carrying out of the terms of this Agreement and the Notes, and the
taking of any such action will not constitute a default under, or result
in the creation or imposition of, or obligation to create, any Lien not
permitted by paragraph 8.2 upon the Property of the Company pursuant to
the terms of any such mortgage, indenture, contract or agreement.
4.7 Taxes. The Company has filed or caused to be filed all tax
returns material to the Company required by law to be filed, and has
paid, or has made adequate provision for the payment of, all taxes shown
to be due and payable on said returns or in any assessments made against
it. No tax liens have been filed and no claims are being asserted with
respect to such taxes which are required by GAAP to be reflected in the
Financial Statements and are not so reflected therein. The Internal
Revenue Service has audited and settled upon, or the applicable statutes
of limitation have run upon, all Federal income tax returns of the
Company through the tax year ended December 31, 1990, and, to the extent
required by GAAP, the results of all such audits are reflected in the
Financial Statements. The charges, accruals and reserves on the books
of the Company with respect to all taxes are considered by the
management of the Company to be adequate, and the Company knows of no
unpaid assessment which is due and payable against the Company which
would have a Material Adverse Effect, except such thereof as are being
contested in good faith and by appropriate proceedings diligently
conducted and for which adequate reserves have been set aside in
accordance with GAAP.
4.8 Financial Statements. The Company heretofore delivered to
each Bank (i) copies of the Consolidated Balance Sheets at December 31,
1996 and December 31, 1995, and the related Consolidated Statements of
Income, Cash Flows and Capitalization Data for the years ended
December 31, 1996, 1995 and 1994 and (ii) copies of the Consolidated
quarterly reports of the Company and its Subsidiaries as of June 30,
1996, September 30, 1996 and March 31, 1997, each containing a
Consolidated balance sheet and Consolidated statements of income and
cash flows of the Company and its Subsidiaries (the statements in (i)
and (ii) above being sometimes referred to herein as the "Financial
Statements"). The financial statements set forth in (i) above were
audited and reported on by the Accountants on January 31, 1997, and the
financial statements set forth in (ii) above were prepared by the
Company. The Financial Statements fairly present the Consolidated
financial condition and the Consolidated results of operations of the
Company and its Subsidiaries as of the dates and for the periods
indicated therein, and have been prepared in conformity with GAAP.
Except (a) as reflected in the financial statements specified in (i)
above or in the footnotes thereto, or (b) as otherwise disclosed to the
Banks in a writing specifically referring to this paragraph 4.8, neither
the Company nor any Subsidiary has any obligation or liability of any
kind (whether fixed, accrued, contingent, unmatured or otherwise) which
is material to the Company and its Subsidiaries on a Consolidated basis
and which, in accordance with GAAP, should have been shown on such
financial statements and were not, other than those incurred in the
ordinary course of their respective businesses since December 31, 1996.
Since December 31, 1996, each of the Company and each Subsidiary has
conducted its business only in the ordinary course, and as of the
Effective Date there has been no adverse change in the financial
condition, Property, operations or prospects of the Company and its
Subsidiaries which is material to the Company and its Subsidiaries on a
Consolidated basis.
4.9 Compliance with Applicable Laws. Except as set forth in the
Designated Documents, neither the Company nor any Subsidiary is in
default with respect to any judgment, order, writ, injunction, decree or
decision of any Governmental Body applicable to the Company or such
Subsidiary which default would have a Material Adverse Effect upon the
Company. Except as set forth in the Designated Documents, each of the
Company and each Subsidiary is complying in all material respects with
all applicable material statutes and regulations of all Governmental
Bodies, including ERISA and all Environmental Laws, a violation of which
would have a Material Adverse Effect upon the Company.
4.10 Governmental Regulations. The Company is not an "Investment
Company" as such term is defined in the Investment Company Act of 1940,
as amended.
4.11 Property. The Company has good and marketable title to all
of its Property, title to which is material to the Company, subject to
no Lien, except as permitted by paragraph 8.2.
4.12 Federal Reserve Regulations. The Company is not engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any margin
stock within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System, as amended. No part of the proceeds of the
Loans will be used (i) to purchase or carry any such margin stock, (ii)
to extend credit to others for the purpose of purchasing or carrying any
margin stock, (iii) for a purpose which violates the provisions of
Regulations G, U and X of the Board of Governors of the Federal Reserve
System, as amended, or (iv) for a purpose which violates any other
applicable law, rule or regulation of any Governmental Body. Not more
than 25% of the value of the aggregate of the assets of the Company
subject to the provisions of this Agreement is represented by margin
stock within the meaning of said Regulation U.
4.13 No Misrepresentation. No representation or warranty
contained herein and no certificate or report furnished or to be
furnished by the Company in connection with the transactions
contemplated hereby, contains or will contain a misstatement of material
fact, or omits or will omit to state a material fact required to be
stated in order to make the statements herein or therein contained not
misleading in the light of the circumstances under which made.
4.14 Pension Plans. Each Plan, and to the best of the Company's
knowledge each Multiemployer Plan, established or maintained by the
Company and its Subsidiaries, is in material compliance with the
applicable provisions of ERISA and the Code, and the Company and its
Subsidiaries have filed all material reports required to be filed with
respect to each such Plan by ERISA and the Code. The Company and its
Subsidiaries have met all requirements with respect to funding the Plans
imposed by ERISA or the Code. Since the effective date of ERISA, there
have not been, nor are there now existing, any events or conditions
which would permit any Plan and to the best of the Company's knowledge
any Multiemployer Plan to be terminated under circumstances which would
cause the lien provided under Section 4068 of ERISA to attach to the
Property of the Company or any of its Subsidiaries. Since the effective
date of ERISA, no reportable event as defined in Title IV of ERISA,
which constitutes grounds for the termination of any Plan and to the
best of the Company's knowledge any Multiemployer Plan, has occurred and
no Plan or any related trust has been terminated in whole or in part
which would have a Material Adverse Effect.
4.15 Public Utility Holding Company Act. The Company is a public
utility holding company under the Public Utility Holding Company Act of
1935, as amended, (the "Public Utility Act") and each of its
Subsidiaries are "subsidiaries" of a "holding company" under the Public
Utility Act. The Company and its Subsidiaries have filed an exemption
statement under Section 3(a)(2) of the Public Utility Act and is
therefore exempt from the provisions of the Public Utility Act, except
for Section 9(a)(2) thereof (which prohibits the acquisition of
securities of certain other utility companies without approval of the
Securities and Exchange Commission).
4.16 Approvals. Except for the regulatory approval of the VPSB
with respect to the Tranche B Loan, the Company has obtained all
authorizations, approvals or consents of and made all filings or
registrations with all Governmental Bodies as are necessary to be
obtained or made by the Company for the execution, delivery or
performance by the Company of this Agreement or the Notes and all such
authorizations, approvals and consents are in full force and effect.
4.17 Regulatory Investigations. The VPSB is not currently
conducting and has not conducted within the five (5) year period
immediately preceding the date hereof, an investigation of the Company
or any of its Subsidiaries, other than an investigation conducted by the
VPSB in its routine general supervisory role of the Company as a public
utility company.
4.18 No Adverse Change or Event. Since December 31, 1996, no
change in the business, assets, liabilities, condition (financial or
otherwise), results of operations or business prospects of the Company
has occurred, and no event has occurred or failed to occur, that has had
or would reasonably be expected to have, either alone or in conjunction
with all other such changes, events and failures, a Material Adverse
Effect on (a) the Company or (b) any Loan Document. Such an adverse
change may have occurred, and such an event may have occurred or failed
to occur, at any particular time notwithstanding the fact that at such
time no default or Event of Default shall have occurred and be
continuing.
5. CONDITIONS OF BORROWING -- FIRST BORROWING. In addition to the
requirements set forth in paragraph 6, the obligations of the Banks to
make the first Loans on the initial Borrowing Date are subject to the
fulfillment of the following conditions precedent:
5.1 Evidence of Corporate Action. The Agent shall have received
a certificate, dated the EffectiveDate, of the Secretary or an Assistant
Secretary of the Company (i) attaching a true and complete copy of the
resolutions of its Board of Directors and of all documents evidencing
other necessary corporate action (in form and substance satisfactory to
the Agent and to Special Counsel) taken by the Company to authorize this
Agreement, the Notes and the borrowings hereunder, (ii) attaching a true
and complete copy of the Charter and the By-Laws of the Company, and
(iii) setting forth the incumbency of the officer or officers of the
Company who sign this Agreement and the Notes, including therein a
signature specimen of such officer or officers, together with a
certificate of the Secretary of State of Vermont as to the good standing
of, and the payment of franchise taxes therein by, the Company, together
with such other documents as the Agent or Special Counsel shall
reasonably require.
5.2 Notes. The Agent shall have received and be in possession of
the Notes executed by the duly authorized officer or officers of the
Company.
5.3 Approval of Special Counsel. All legal matters incident to
the making of the first Loans on the initial Borrowing Date shall be
satisfactory to Special Counsel, and the Agent shall have received from
Special Counsel an opinion addressed to the Banks and to the Agent,
dated the Effective Date, substantially in the form of Exhibit J.
5.4 Opinion of Counsel to the Company. The Agent shall have
received the opinion of Xxxxxxx Xxxx Xxxx & Xxxxxxx P.C., counsel to the
Company, or its successor, if any, addressed to the Banks and to the
Agent, dated the Effective Date, substantially in the form of Exhibit K.
5.5 Fees. The fees of Special Counsel shall have been paid.
5.6 VPSB Approval. Subject to paragraph 2.17, the Agent shall
have received true copies for each Bank of the order or orders of the
VPSB approving this Agreement in the form executed and delivered to the
Agent by the Company and each Bank with no material changes to this
Agreement. Such approval shall be final and shall no longer be subject
to appeal, shall be in full force and effect, shall be in form and
substance satisfactory to the Agent and Special Counsel. In addition,
the Agent shall have received a certificate of the Secretary of the
Company to the effect that no other consents, approvals or licenses are
necessary in connection with the borrowings hereunder.
6. CONDITIONS OF BORROWING -- ALL BORROWINGS. The obligations of the
Banks to make all Loans hereunder on each Borrowing Date are subject to
the fulfillment of the following conditions precedent:
6.1 Compliance. On each Borrowing Date, and after giving effect
to the Loans to be made on such date (a) the Company and each Subsidiary
shall be in compliance with all of the terms, covenants and conditions
of this Agreement, (b) there shall exist no Event of Default, (c) the
representations and warranties contained in this Agreement, or otherwise
in writing made by the Company in connection herewith shall be true and
correct in all material respects with the same effect as though such
representations and warranties had been made on such Borrowing Date
(except such thereof as specifically refer to an earlier date) and (d)
no event shall have occurred or failed to occur, that has had or would
reasonably be expected to have, either alone or in conjunction with all
other such events and failures, a Material Adverse Effect since the date
of the last Borrowing Date, and the Agent shall have received a
certificate in the form of Exhibit C attached hereto (with respect to
Pro Rata Loans) or in the form of Exhibit F attached hereto (with
respect to Bid Rate Loans), dated the Borrowing Date, and signed on
behalf of the Company by a duly authorized officer of the Company, to
the same effect as all of the foregoing matters.
6.2 Loan Closings. All documents required by paragraphs 5 and 6
of this Agreement to be executed and/or delivered to the Agent on or
before the applicable Borrowing Date shall have been executed and
delivered at the office of the Agent set forth in paragraph 11 on or
before such Borrowing Date.
6.3 Approval of Counsel. All legal matters in connection with
the making of each Loan on Borrowing Date shall be reasonably
satisfactory to such counsel with whom the Agent may deem it necessary
to consult.
6.4 Borrowing Request. The Agent shall have received a Borrowing
Request.
6.5 Other Documents. The Agent shall have received such other
documents as the Agent shall reasonably require.
7. AFFIRMATIVE COVENANTS.
The Company covenants and agrees that on and after the Effective
Date until the later of the termination of the Commitments or the
payment in full of the Notes and the performance by the Company of all
other obligations of the Company hereunder, unless the Agent shall
otherwise consent in writing as provided in paragraph 13, the Company
will:
7.1 Corporate Existence. Maintain its corporate existence, in
good standing in the jurisdiction of its incorporation or organization
and in each other jurisdiction in which the character of the Property
owned or leased by it therein or the transaction of its business makes
such qualification necessary, except as otherwise expressly permitted
hereunder.
7.2 Taxes. Pay and discharge when due all taxes, assessments and
governmental charges and levies upon the Company, and upon the income,
profits and Property of the Company, which if unpaid would have a
Material Adverse Effect or become a Lien not permitted under paragraph
8.2, unless and to the extent only that such taxes, assessments, charges
and levies, (a) shall be contested in good faith and by appropriate
proceedings diligently conducted by the Company, provided that such
reserve or other appropriate provision, if any, as shall be required in
accordance with GAAP shall have been made therefor, or (b) are not in
the aggregate material to the financial condition, Property or
operations of the Company.
7.3 Insurance. Maintain insurance with financially sound
insurance carriers on such of its Property in such amounts, subject to
such deductibles and self-insured amounts and against such risks as is
customarily maintained by similar businesses, including, without
limitation, public liability, workers' compensation and employee
fidelity insurance.
7.4 Payment of Indebtedness and Performance of Obligations. Pay
and discharge promptly as and when due all lawful indebtedness,
obligations and claims for labor, materials and supplies or otherwise
(including, without limitation, Funded Debt) which, if unpaid, would (a)
have a Material Adverse Effect, or (b) become a Lien not permitted by
paragraph 8.2, provided that the Company shall not be required to pay
and discharge or cause to be paid and discharged any such indebtedness,
obligation or claim so long as the validity thereof shall be contested
in good faith and by appropriate proceedings diligently conducted by the
Company, and further provided that such reserve or other appropriate
provision as shall be required in accordance with GAAP shall have been
made therefor.
7.5 Observance of Legal Requirements: ERISA. Observe and comply,
and cause each Subsidiary to observe and comply, in all material
respects with all laws (including ERISA and all Environmental Laws),
ordinances, orders, judgments, rules, regulations, certifications,
franchises, permits, licenses, directions and requirements of all
Governmental Bodies, which now or at any time hereafter may be
applicable to the Company or such Subsidiary, a violation of which would
have a Material Adverse Effect upon the Company, except such thereof as
shall be contested in good faith and by appropriate proceedings
diligently conducted by the Company or such Subsidiary, provided that
such reserve or other appropriate provision, if any, as shall be
required in accordance with GAAP shall have been made therefor.
7.6 Financial Statements and Other Information. Furnish to the
Agent and the Banks:
(a) as soon as available, but in no event more than 90 days after
the close of each fiscal year of the Company, copies of its audited
Consolidated Balance Sheet and the related audited Consolidated
Statements of Income, Shareholders' Equity and Changes in Financial
Position for such fiscal year setting forth in each case in comparative
form the corresponding figures for the preceding fiscal year all
reported by the Accountants which report shall state that said financial
statements fairly present the financial position and results of
operations of the Company as at the end of and for such fiscal year
except as specifically stated therein, as of and through the end of such
fiscal year, prepared in accordance with GAAP and accompanied by a
report with respect thereto of the Accountants, together with a
certificate signed on behalf of the Company by the principal financial
officer thereof to the effect that having read this Agreement, and based
upon an examination which in the opinion of such officer was sufficient
to enable such officer to make an informed statement, (x) such
statements fairly present the financial position and results of the
operations of the Company and its Subsidiaries on a Consolidated basis
to the best of such officer's knowledge, and (y) nothing came to such
officer's attention which caused such officer to believe that an Event
of Default has occurred, or if an Event of Default has occurred, stating
the facts with respect thereto and whether the same has been cured prior
to the date of such certificate, and, if not, what action is proposed to
be taken with respect thereto;
(b) as soon as available, but in no event more than 45 days after
the close of each quarter (except the last quarter) of each fiscal year
of the Company a Consolidated Balance Sheet and Consolidated Statements
of Income and Changes in Financial Position of the Company and its
Subsidiaries as of and through the end of such quarter, together with a
certificate signed on behalf of the Company by the principal financial
officer thereof to the effect that having read this Agreement, and based
upon an examination which in the opinion of such officer was sufficient
to enable such officer to make an informed statement, (x) such
statements fairly present the financial position and results of the
operations of the Company and its Subsidiaries on a Consolidated basis
to the best of such officer's knowledge, and (y) nothing came to such
officer's attention which caused such officer to believe that an Event
of Default has occurred, or if an Event of Default has occurred, stating
the facts with respect thereto and whether the same has been cured prior
to the date of such certificate, and, if not, what action is proposed to
be taken with respect thereto;
(c) prompt notice if: (x) any obligation of the Company (other
than its obligations under this Agreement or the Notes) for a payment in
excess of $500,000 of any Funded Debt is not paid when due or within any
grace period for the payment thereof or is declared or shall become due
and payable prior to its stated maturity, or (y) to the knowledge of any
Authorized Signatory of the Company there shall occur and be continuing
an event which constitutes, or which with the giving of notice or the
lapse of time, or both, would constitute an event of default under any
agreement with respect to Funded Debt of the Company (including this
Agreement);
(d) prompt written notice in the event that (i) the Company or
any Subsidiary shall fail to make any payments when due and payable
under any Plan or Multiemployer Plan, or (ii) the Company or any
Subsidiary shall receive notice from the Internal Revenue Service or the
Department of Labor that the Company or such Subsidiary shall have
failed to meet the minimum funding requirements of any Plan or
Multiemployer Plan, including therewith a copy of such notice;
(e) promptly upon becoming available, copies of all regular,
periodic or special reports or other material which may be filed with or
delivered by the Company to the Securities and Exchange Commission, or
any other Governmental Body succeeding to the functions thereof;
(f) prompt written notice in the event the Debt Rating of the
Company shall change or the Company shall have no Debt Rating;
(g) prompt written notice and a copy of any Environmental Notice
excluding, however, any such Environmental Notices relating to the Pine
Street Xxxxx site in Burlington, Vermont (the "Pine Street Site") if the
effect of such Environmental Notice (i) does not change the status of
the Pine Street Site as it exists as of the date hereof as it relates to
the Company and (ii) would not have a Material Adverse Effect;
(h) a certificate of the Company, dated the date of each such
annual report or quarterly report required pursuant to paragraphs 7.6(a)
and (b), and signed on behalf of the Company by the President, chief
financial officer, chief accounting officer or Treasurer, which sets
forth all relevant calculations needed to determine whether the Company
is in compliance with paragraph 8.8 hereof, which calculations are based
on the most recent fiscal quarter required to be supplied pursuant to
paragraphs 7.6(a) and (b); and
(i) such other information and reports relating to the affairs of
the Company and its Subsidiaries, as the Agent or any Bank at any time
or from time to time may reasonably request.
7.7 Inspection. Permit representatives of the Agent or any Bank
to visit the offices of the Company, to examine the books and records
thereof and to make copies or extracts therefrom, and to discuss the
affairs of the Company with the officers, including the financial
officers, thereof, at reasonable times, at reasonable intervals and with
reasonable prior notice.
8. NEGATIVE COVENANTS. The Company covenants and agrees that from
the Effective Date until the later of the termination of the Commitments
or the payment in full of the Notes and the performance by the Company
of all other obligations of the Company hereunder, unless the Agent
shall otherwise consent in writing as provided in paragraph 13, the
Company will not:
8.1 Funded Debt. Create, incur, assume, guarantee or suffer to
exist any Short-Term Funded Debt (excluding the Loans) in excess of
$8,000,000, individually or in the aggregate, excluding, however, the
Company's payment obligations meeting the capital lease accounting
requirements under SFAS 13 pursuant to certain thirty-year support
agreements among the Company, VELCO and other New England Power Pool
members and Hydro-Quebec in connection with the construction of the
second phase of the interconnection between the New England electric
systems and that of Hydro-Quebec, or unless the same is permitted or
allowed in connection with the provisions of the First Mortgage Bonds
specifically relating to restrictions on Funded Debt, which provisions
are incorporated by reference herein as if fully set forth herein.
8.2 Liens. Create, incur, assume or suffer to exist any Lien
upon any of its Property, whether now owned or hereafter acquired, to
secure any indebtedness or other obligation unless the same is permitted
or allowed in connection with the First Mortgage Bonds, the provisions
of which specifically relating to restrictions on Liens are incorporated
by reference herein as if fully set forth herein, and except for the
following:
(i) materialmens', mechanics', suppliers', tax and other like
liens arising in the ordinary course of business securing obligations
which are not overdue, or if overdue are being contested in good faith
by appropriate proceedings and then only to the extent that the Company
has set aside on its books adequate reserves therefor in accordance with
GAAP and such contest does not have a Material Adverse Effect; liens
arising in connection with workers' compensation, unemployment
insurance, and appeal and release bonds, and other liens incident to the
conduct of business or the operation of property and assets and not
incurred in connection with the obtaining of any advance or credit and
which Liens do not, or would not, have a Material Adverse Effect;
(ii) Liens arising out of judgments or awards against the Company
with respect to which at the time an appeal or proceeding for review is
being prosecuted in good faith and with respect to which there shall
have been secured a stay of execution pending such appeal or preceding
for review and which Liens do not, or would not, have a Material Adverse
Effect;
(iii) Liens upon Property of the Company to secure debt or other
obligations owing by the Company to the United States, the State of
Vermont or any agencies or instrumentalities of either thereof in
connection with the financing or other furnishing of the respective
property by the respective government, agency or instrumentality and
which liens do not or would not, have a Material Adverse Effect;
(iv) Liens arising by reason of the terms of contracts to which
the Company is a party relative to the joint ownership of generation
and/or transmission facilities and which Liens do not, or would not,
have a Material Adverse Effect; and
(v) any other Liens not in excess of $500,000 in the aggregate.
8.3 Mergers and Consolidations. Except with the prior written
consent of the Majority Banks, consolidate with or merge into any other
Person.
8.4 Sale of Property. Except with the prior written consent of
the Majority Banks, sell, lease or otherwise dispose of any significant
part of its Property (including, without limitation, the right to
receive income), except (i) in the ordinary course of business and (ii)
obsolete or worn out Property which is no longer used or useful to the
Company.
8.5 Dividends; Distributions. Declare or pay any dividends
(other than dividends payable in shares of common stock of the Company)
on, or make any other distribution in respect of, any shares of any
class of capital stock of the Company, or apply any of its property or
assets to, or set aside any sum for, the payment, purchase, redemption
or other acquisition or retirement of, any shares of any class of
capital stock of the Company, if, after giving effect to such dividend
or other distribution, the result of such dividend or other distribution
would have a Material Adverse Effect.
8.6 Guaranties. Except as set forth in the Financial Statements,
the Company shall not guarantee, endorse or otherwise in any way become
or be responsible for obligations of any other Person (including without
limitation any officer, director, employee or stockholder of the
Company) in excess of $500,000 in the aggregate, whether by agreement to
purchase the indebtedness of any other Person or through the purchase of
goods, supplies or services, or maintenance of working capital or other
balance sheet covenants or conditions, or by way of stock purchase,
capital contribution, advance or loan for the purpose of paying or
discharging any indebtedness or obligation of such other Person or
otherwise, unless the same is permitted or allowed in connection with
the provisions of the First Mortgage Bonds specifically relating to the
same, which provisions are incorporated by reference herein as if fully
set forth herein.
8.7 Amendment of Charter or By-Laws. The Company shall not amend
its Charter or By-Laws or change its fiscal year end if the result of
any such amendment or change in its fiscal year end would adversely
affect or otherwise impair the rights and remedies of the Banks
hereunder or under any other Loan Document.
8.8 Funded Debt to Capitalization Test. Permit the total amount
of Funded Debt to exceed fifty-five percent (55%) of Total
Capitalization.
9. EVENTS OF DEFAULT. The following shall each constitute an Event
of Default hereunder:
(a) the failure of the Company to pay any amounts (i) of
principal due hereunder or under the Notes when such amounts are due or
declared due, or (ii) any other amounts, including interest and fees,
due hereunder or under the Notes within five (5) Business Days after
such amounts are due or declared due, in any case whether at stated
maturity by acceleration or otherwise;
(b) the failure of the Company to observe or perform any covenant
or agreement contained in paragraph 8 and, with respect to paragraph 8.2
only, such failure shall have continued unremedied for a period of five
(5) Business Days after the Company knows, or should have known, of such
default; or
(c) the failure of the Company to observe or perform any other
term, covenant, or agreement contained in this Agreement and such
failure shall have continued unremedied for a period of 10 days after
written notice, specifying such failure and requiring it to be remedied,
shall have been given to the Company by the Agent; or
(d) any material representation or warranty made herein or in any
certificate, report, or notice delivered or to be delivered by the
Company pursuant hereto, shall prove to have been incorrect in any
material respect when made; or
(e) if the Company shall default (as principal or guarantor,
surety or other obligor) in the payment of any principal of, or premium,
if any, or interest on any Funded Debt in excess of $1,000,000 (other
than its obligations under this Agreement and the Notes), or with
respect to any of the terms of any evidence of such indebtedness or of
any agreement relating thereto, and such default shall entitle the
holder of such indebtedness to accelerate the maturity thereof, unless,
in the case of any non-payment default, such default has been
affirmatively waived by or on behalf of the holder of such indebtedness;
or
(f) the Company shall (i) make an assignment for the benefit of
creditors, (ii) admit in writing its inability to pay its debts as they
become due or generally fail to pay its debts as they become due, (iii)
file a voluntary petition in bankruptcy, (iv) become insolvent (however
such insolvency shall be evidenced), (v) file any petition or answer
seeking for itself any reorganization, arrangement, composition,
readjustment of debt, liquidation or dissolution or similar relief under
any present or future statute, law or regulation of any jurisdiction,
(vi) petition or apply to any tribunal for any trustee, receiver,
custodian, liquidate or fiscal agent for any substantial part of its
Property, (vii) be the subject of any proceeding referred to in clause
(vi) above or an involuntary bankruptcy petition filed against it which
remains undischarged for a period of 60 days, (viii) file any answer
admitting or not contesting the material allegations of any such
petition filed against it, or of any order, judgment or decree approving
such petition in any such proceeding, (ix) seek, approve, consent to, or
acquiesce in any such proceeding, or in the appointment of any trustee,
receiver, custodian, liquidate, or fiscal agent for it, or any
substantial part of its Property, or an order is entered appointing any
such trustee, receiver, custodian, liquidator or fiscal agent and such
order remains in effect for 60 days, (x) take any formal action for the
purpose of effecting any of the foregoing or looking to the liquidation
or dissolution of the Company or (xi) suspend or discontinue its
business (except as otherwise expressly permitted herein); or
(g) an order for relief is entered under the United States
bankruptcy laws or any other decree or order is entered by a court
having jurisdiction (i) adjudging the Company a bankrupt or insolvent,
or (ii) approving as properly filed a petition seeking reorganization,
liquidation, arrangement, adjustment or composition of or in respect of
the Company under the United States bankruptcy laws or any other
applicable Federal or state law, or (iii) appointing a trustee,
receiver, custodian, liquidator, or fiscal agent (or other similar
official) of the Company or of any substantial part of its Property, or
(iv) ordering the winding up or liquidation of the affairs of the
Company; or
(h) judgments or decrees against the Company in excess of
$3,000,000 (unless such judgment or decree is insured and the insurer
has admitted liability) or for an aggregate amount in excess of
$6,000,000 (whether or not insured) shall remain unpaid, unstayed on
appeal, undischarged, unbonded or undismissed for a period of 30 days;
or
(i) any fact or circumstance, including any Reportable Event as
defined in Title IV of ERISA, at a time when there exists an
underfunding of the Plan in an amount in excess of $500,000, which
constitutes grounds for the termination of any Plan by the PBGC or for
the appointment of a trustee to administer any Plan, shall have occurred
and be continuing for a period of 30 days; or
(j) the occurrence of a Material Adverse Change.
Upon the occurrence and during the continuance of an Event of
Default under this paragraph 9, the Agent, upon the request of the
Majority Banks, shall notify the Company that the Commitments have been
terminated and that the Notes, all accrued interest thereon and all
other amounts owing under this Agreement are immediately due and
payable, provided that upon the occurrence of an event specified in
paragraphs 9(f) or 9(g), the Commitments shall automatically terminate
and the Notes (with accrued interest thereon) and all other amounts
owing under this Agreement shall become immediately due and payable
without notice to the Company. Except for any notice expressly provided
for in this paragraph 9, the Company hereby expressly waives any
presentment, demand, protest, notice of protest or other notice of any
kind. The Company hereby further expressly waives and covenants not to
assert any appeasement, valuation, stay, extension, redemption or
similar laws, now or at any time hereafter in force which might delay,
prevent or otherwise impede the performance or enforcement of this
Agreement or the Notes.
In the event that the unpaid principal balance of the Notes, all
accrued interest thereon and all other amounts owing under this
Agreement shall have been declared due and payable pursuant to the
provisions of this paragraph 9, the Agent may, and, upon (i) the request
of the Majority Banks and (ii) the providing by all of the Banks to the
Agent of an indemnity in form and substance satisfactory to the Agent in
accordance with paragraph 10.3 against all expenses and liabilities
shall, proceed to enforce the rights of the holders of the Notes by suit
in equity, action at law and/or other appropriate proceedings, whether
for payment or the specific performance of any covenant or agreement
contained in this Agreement or the Notes. The Agent shall be justified
in failing or refusing to take any action hereunder and under the Notes
unless it shall be indemnified to its satisfaction by the Banks pro rata
according to the aggregate outstanding principal balance of the Notes
against any and all liabilities and expenses which may be incurred by it
by reason of taking or continuing to take any such action. In the event
that the Agent, having been so indemnified, or not being indemnified to
its satisfaction, shall fail or refuse so to proceed, any Bank shall be
entitled to take such action as it shall deem appropriate to enforce its
rights hereunder and under its Notes, with the consent of the Banks, it
being understood and intended that no one or more of the holders of the
Notes shall have any right to enforce payment thereof except as provided
in this paragraph 9 and in paragraph 12.
If an Event of Default shall have occurred and shall be
continuing, the Agent may, and at the request of the Majority Banks
shall, notify the Company (by telephone or otherwise) that all or such
lesser amount as the Majority Banks shall designate of the outstanding
Eurodollar Rate Loans automatically shall be converted to Alternate Base
Rate Loans, in which event such Eurodollar Rate Loans automatically
shall be converted to Alternate Base Rate Loans on the date such notice
is given. If such notice is given, notwithstanding anything in
paragraph 2.7 to the contrary, no Alternate Base Rate Loan may be
converted to a Eurodollar Rate Loan if an Event of Default has occurred
and is continuing at the time the Company shall notify the Agent of its
election to so convert.
10. THE AGENT. The Banks and the Agent agree by and among themselves
that:
10.1 Appointment. FNB is hereby irrevocably designated the Agent
by each of the other Banks to perform such duties on behalf of the other
Banks and itself, and to have such powers, as are set forth herein and
as are reasonably incidental thereto.
10.2 Delegation of Duties; Etc. The Agent may execute any duties
and perform any powers hereunder by or through agents or employees, and
shall be entitled to consult with legal counsel and any accountant or
other professional selected by it. Any action taken or omitted to be
taken or suffered in good faith by the Agent in accordance with the
opinion of such counsel or accountant or other professional shall be
full justification and protection to the Agent.
10.3 Indemnification. The Banks agree to indemnify the Agent in
its capacity as such, to the extent not reimbursed by the Company, pro
rata according to their respective Commitments as of the Effective Date,
from and against any and all claims, liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against the Agent in any way relating to or
arising out of this Agreement or the Notes or any action taken or
omitted to be taken or suffered in good faith by the Agent hereunder or
thereunder, provided that no Bank shall be liable for any portion of any
of the foregoing items resulting from the gross negligence or willful
misconduct of the Agent. Without limitation of the foregoing, each Bank
agrees to reimburse the Agent promptly for its pro-rata share of any
reasonable out-of-pocket expenses (including counsel fees) incurred by
the Agent in connection with the preparation, execution, administration
or enforcement of, or legal advice in respect of rights or
responsibilities under, this Agreement and the Notes, to the extent that
the Agent, having sought reimbursement for such expenses from the
Company, is not promptly reimbursed by the Company. Any reference
herein and in any document executed in connection herewith, to the Banks
providing an indemnity in form and substance satisfactory to the Agent
prior to the Agent taking any action hereunder shall be satisfied by the
Banks executing an agreement confirming their agreement to promptly
indemnify the Agent in accordance with this paragraph 10.3.
10.4 Exculpatory Provisions. Neither Agent, nor any of its
officers, directors, employees or agents, shall be liable for any action
taken or omitted to be taken or suffered by it or them hereunder or
under the Notes, or in connection herewith or therewith, including
without limitation any action taken or omitted to be taken in connection
with any telephonic communication pursuant to paragraph 2.3(b) hereof,
except that the Agent shall be liable for its own gross negligence or
willful misconduct. The Agent shall not be liable in any manner for the
effectiveness, enforceability, collectibility, genuineness, validity or
the due execution of this Agreement or the Notes, or for the due
authorization, authenticity or accuracy of the representations and
warranties contained herein or in any other certificate, report, notice,
consent, opinion, statement, or other document furnished or to be
furnished hereunder, and the Agent shall be entitled to rely upon any of
the foregoing believed by it to be genuine and correct and to have been
signed and sent or made by the proper Person. The Agent shall not be
under any duty or responsibility to any Bank to ascertain or to inquire
into the performance or observance by the Company or any Subsidiary of
any of the provisions hereof or of the Notes or of any document executed
and delivered in connection herewith or therewith. Each other Bank
expressly acknowledges that the Agent has not made any representations
or warranties to it and that no act taken by the Agent shall be deemed
to constitute any representation or warranty by the Agent to any other
Bank. Each Bank acknowledges that it has taken and will continue to
take such action and has made and will continue to make such
investigation as it deems necessary to inform itself of the affairs of
the Company and each Subsidiary, and each Bank acknowledges that it has
made and will continue to make its own independent investigation of the
creditworthiness and the business and operations of the Company and its
Subsidiaries, and that, in entering into this Agreement, and in agreeing
to make its Loans, it has not relied and will not rely upon any
information or representations furnished or given by the Agent or any
other Bank.
10.5 Agent in its Individual Capacity. With respect to its Loans
and any renewals, extensions or deferrals of the payment thereof and any
Note issued to or held by it, the Agent shall have the same rights and
powers hereunder as any Bank, and may exercise the same as though it
were not the Agent, and the term "Bank" or "Banks" shall, unless the
context otherwise requires, include the Agent in its individual
capacity. FNB and its affiliates may accept deposits from, lend money
to, act as trustee or other fiduciary in connection with transactions
involving, and otherwise engage in any business with the Company and its
affiliates and any Person who may do business with or own securities of
the Company or any affiliate of the Company, all as if FNB were not the
Agent hereunder and without any obligation to account or report therefor
to any Bank.
10.6 Knowledge of Default. It is expressly understood and agreed
that the Agent shall be entitled to assume that no Event of Default has
occurred and is continuing, unless the officers of the Agent who are
responsible for matters concerning this Agreement shall have actual
knowledge of such occurrence or shall have been notified in writing by a
Bank that such Bank considers that an Event of Default has occurred and
is continuing and specifying the nature thereof.
In the event the Agent shall have acquired actual knowledge of any
Event of Default, it shall promptly give notice thereof to the Banks.
10.7 Resignation of Agent. If at any time the Agent deems it
advisable, in its sole discretion, it may submit to each of the Banks a
written notification of its resignation as Agent under this Agreement,
such resignation to be effective on the earlier to occur of (a) the
forty-fifth (45th) day after the date of such notice or (b) the date
upon which a successor Agent accepts its appointment as successor Agent.
If the Agent resigns hereunder, the Company shall have the right to
appoint, with the prior written approval of the Banks, which approval
shall not be unreasonably withheld, a successor Agent hereunder,
provided, however that upon the occurrence and during the continuance of
an Event of Default, the Banks shall have the right to appoint such
successor Agent hereunder. The successor Agent shall be a commercial
bank or other financial institution organized under the laws of the
United States of America or of any State thereof and having a combined
capital and surplus of at least $100,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor
Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the Agent hereunder, and the retiring
Agent shall be discharged from any further duties and obligations under
this Agreement. The Company and the Banks agree to execute such
documents as shall be necessary to effect such appointment. After the
retiring Agent's resignation or removal hereunder, the provisions of
this paragraph 10 shall inure to its benefit as to any actions taken or
omitted to be taken by it while the Agent under this Agreement. If at
any time hereunder there shall not be a duly appointed and acting Agent,
the Company agrees to make each payment due hereunder and under the
Notes directly to the Banks entitled thereto.
10.8 Requests to the Agent. Whenever the Agent is authorized and
empowered hereunder on behalf of the Banks to give any approval or
consent, or to make any request, or to take any other action on behalf
of the Banks, the Agent shall be required to give such approval or
consent, or to make such request or to take such other action only when
so requested in writing by the Majority Banks subject, however, to the
provisions of paragraph 13.
11. NOTICES.
11.1 Manner of Delivery. Except as otherwise specifically
provided herein, all notices and demands shall be in writing and shall
be mailed by certified mail return receipt requested or sent by
telegram, telecopy or telex or delivered in person, and all statements,
reports, documents, consents, waivers, certificates and other papers
required to be delivered hereunder shall be mailed by first-class mail
or delivered in person, in each case to the respective parties to this
Agreement as follows:
if to the Company, to:
Green Mountain Power Corporation
00 Xxxxx Xxxxxxxx Xxxxx
Xxxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Sheehey Xxxx Xxxx & Xxxxxxx P.C.
00 Xxxx Xxxxxx
X.X. Xxx 00
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to the Agent, to:
Fleet National Bank
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, Director
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Xxxxxx & Hannah LLP
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to the Banks, to:
Fleet National Bank
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, Director
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Xxxxxx & Hannah LLP
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Bank of Nova Scotia
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx, Relationship Manager
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
State Street Bank and Trust Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxx Xxxxxxxxx, Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other Person or address as a party hereto shall designate to
the other parties hereto from time to time in writing forwarded in like
manner. Any notice or demand given in accordance with the provisions of
this paragraph 11.1 shall be effective when received and any consent,
waiver or other communication given in accordance with the provisions of
this paragraph 11.1 shall be conclusively deemed to have been received
by a party hereto and to be effective on the day on which delivered to
such party at its address specified above or, if sent by first class
mail, on the third Business Day after the day when deposited in the
mail, postage prepaid, and addressed to such party at such address,
provided that a notice of change of address shall be deemed to be
effective when actually received.
11.2 Distribution of Copies. Whenever the Company is required to
deliver any statement, report, document, certificate or other paper
(other than Borrowing Request or a notice to convert under paragraph
2.7) to the Agent, the Company shall simultaneously deliver a copy
thereof to each Bank.
11.3 Notices by the Agent or a Bank. In the event that the Agent
or any Bank takes any action or gives any consent or notice provided for
by this Agreement, notice of such action, consent or notice shall be
given forthwith to all the Banks by the Agent or the Bank taking such
action or giving such consent or notice, provided that the failure to
give any such notice shall not invalidate any such action, consent or
notice in respect of the Company.
12. RIGHT OF SET-OFF. Regardless of the adequacy of any collateral,
upon the occurrence and during the continuance of any Event of Default,
each Bank is hereby expressly and irrevocably authorized by the Company
at any time and from time to time, without notice to the Company, to
set-off, appropriate, and apply all moneys, securities and other
Property and the proceeds thereof now or hereafter held or received by
or in transit to such Bank from or for the account of the Company,
whether for safekeeping, pledge, transmission, collection or otherwise,
and also upon any and all deposits (general and special), account
balances and credits of the Company with such Bank at any time existing
against any and all obligations of the Company to the Banks and to each
of them arising under this Agreement and the Notes, and the Company
shall continue to be liable to each Bank for any deficiency with
interest at the rate or rates set forth in subparagraph 2.8(b). Each of
the Banks agrees with each other Bank that (a) if an amount to be set
off is to be applied to any obligations of the Company to such Bank,
other than obligations evidenced by the Notes held by such Bank, such
amount shall be applied ratably to such other obligations and to the
obligations evidenced by all such Notes held by such Bank and (b) if
such Bank shall receive from the Company, whether by voluntary payment,
exercise of the right of setoff, counterclaim, cross action, enforcement
of the claim evidenced by the Notes held by such Bank by proceedings
against the Company at law or in equity or by proof thereof in
bankruptcy, reorganization, liquidation, receivership or similar
proceedings, or otherwise, and shall retain and apply to the payment of
the Note or Notes held by such Bank any amount in excess of its ratable
portion of the payments received by all of the Banks with respect to the
Notes held by all of the Banks, such Bank will make such disposition and
arrangements with the other Banks with respect to such excess, either by
way of distribution, pro tanto assignment of claims, subrogation or
otherwise as shall result in each Bank receiving in respect of the Notes
held by each Bank, its proportionate payment as contemplated by this
Agreement; provided that if all or any part of such excess payment is
thereafter recovered from such Bank, such disposition and arrangements
shall be rescinded and the amount restored to the extent of such
recovery, but without interest.
13. AMENDMENTS, WAIVERS AND CONSENTS. Except as otherwise expressly
set forth herein, with the written consent of the Majority Banks, the
Agent shall, subject to the provisions of this paragraph 13, from time
to time enter into agreements amendatory or supplemental hereto with the
Company for the purpose of changing any provisions of this Agreement or
the Notes, or changing in any manner the rights of the Banks, the Agent
or the Company hereunder and thereunder, or waiving compliance with any
provision of this Agreement or consenting to the non-compliance thereof.
Notwithstanding the foregoing, the consent of all of the Banks shall be
required with respect to any amendment, waiver or consent (i) changing
the Aggregate Commitments or the Commitment of any Bank or (ii) changing
the maturity of any Loan, or the rate of interest of, time or manner of
payment of interest on or principal of, or the principal amount of any
Loan, or the amount, time or manner of payment of any fees hereunder, or
modifying this paragraph 13. Any such amendment or supplemental
agreement, waiver or consent shall apply equally to each of the Banks
and shall be binding on the Company and all of the Banks and the Agent.
Any waiver or consent shall be for such period and subject to such
conditions or limitations as shall be specified therein, but no waiver
or consent shall extend to any subsequent or other Event of Default, or
impair any right or remedy consequent thereupon. In the case of any
waiver or consent, the rights of the Company, the Banks and the Agent
under this Agreement and the Notes shall be otherwise unaffected.
Nothing contained herein shall be deemed to require the Agent to obtain
the consent of any Bank with respect to any change in the amount or
terms of payment of the Agent's Fees. The Company shall be entitled to
rely upon the provisions of any such amendatory or supplemental
agreement, waiver or consent if it shall have obtained any of the same
in writing from the Agent who therein shall have represented that such
agreement, waiver or consent has been authorized in accordance with the
provisions of this paragraph 13.
14. OTHER PROVISIONS.
14.1 No Waiver of Rights by the Banks. No failure on the part of
the Agent or of any Bank to exercise, and no delay in exercising, any
right or remedy hereunder or under the Notes shall operate as a waiver
thereof, except as provided in paragraph 13, nor shall any single or
partial exercise by the Agent or any Bank of any right, remedy or power
hereunder or under the Notes preclude any other or future exercise
thereof, or the exercise of any other right, remedy or power. The
rights, remedies and powers provided herein and in the Notes are
cumulative and not exclusive of any other rights, remedies or powers
which the Agent or the Banks or any holder of a Note would otherwise
have. Notice to or demand on the Company in any circumstance in which
the terms of this Agreement or the Notes do not require notice or demand
to be given shall not entitle the Company to any other or further notice
or demand in similar or other circumstances or constitute a waiver of
the rights of the Agent or any Bank or the holder of any Note to take
any other or further action in any circumstances without notice or
demand.
14.2 Headings; Plurals. Paragraph and subparagraph headings have
been inserted herein for convenience only and shall not be construed to
be a part of this Agreement. Unless the context otherwise requires,
words in the singular number include the plural, and words in the plural
include the singular.
14.3 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original and all of which
shall constitute one agreement. It shall not be necessary in making
proof of this Agreement or of any document required to be executed and
delivered in connection herewith or therewith to produce or account for
more than one counterpart.
14.4 Severability. Every provision of this Agreement and the
Notes is intended to be severable, and if any term or provision hereof
or thereof shall be invalid, illegal or unenforceable for any reason,
the validity, legality and enforceability of the remaining provisions
hereof or thereof shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not
affect the validity, legality or enforceability of any such term or
provision in any other jurisdiction.
14.5 Integration. All exhibits to this Agreement shall be deemed
to be a part of this Agreement. This Agreement, the exhibits hereto and
the Notes embody the entire agreement and understanding between the
Company, the Agent and the Banks with respect to the subject matter
hereof and thereof and supersede all prior agreements and understandings
between the Company, the Agent and the Banks with respect to the subject
matter hereof and thereof.
14.6 Sales and Participations in Loans and Notes: Successors and
Assigns: Survival of Representations and Warranties.
(a) Each Bank shall have the right with the prior written
consent of the Company (which consent shall not be unreasonably withheld
or delayed), upon written notice to the Agent and the Company to sell,
assign, transfer or negotiate all or any part but not less than
$5,000,000) of the Loans and the Notes and its Commitment to one or more
commercial banks or other financial institutions including, without
limitation, the Banks. In the case of any sale, assignment, transfer or
negotiation of all or any such part of the Loans and the Notes
authorized under this paragraph 14.6 (a), the assignee or transferee
shall have, to the extent of such sale, assignment, transfer or
negotiation, the same rights, benefits and obligations as it would if it
were a Bank hereunder and a holder of such Note, including, without
limitation, (x) the right to approve or disapprove of actions which in
accordance with the terms hereof, require the approval of the Majority
Banks and (y) the obligation to fund Loans directly to the Agent
pursuant to paragraph 2.2.
(b) Notwithstanding paragraph 14.6 (a), each Bank may grant
participations in all or any part of its Loans and its Notes to one or
more commercial banks, insurance companies or other financial
institutions, pension funds or mutual funds; provided that (i) any such
disposition shall not, without the prior written consent of the Company,
require the Company to file a registration statement with the Securities
and Exchange Commission or apply to qualify the Loans and the Notes
under the blue sky laws of any state and (ii) the holder of any such
participation, other than an Affiliate of such Bank, shall not have any
rights or obligations hereunder and shall not be entitled to require
such Bank to take or omit to take any action hereunder except action
directly affecting the extension of the maturity of any portion of the
principal amount of, or interest on, the Loan allocated to such
participation, or a reduction of the principal amount of, or the rate of
interest payable on, such Loans.
Notwithstanding the foregoing provisions of this paragraph 14.6,
each Bank may at any time and from time to time sell, assign, transfer,
or negotiate all or any part of the Loans to any Affiliate of such Bank;
provided that an Affiliate to whom such disposition has been made shall
not be considered a "Bank", and the assigning Bank shall be considered
not to have disposed of any Loans so assigned for purposes of
determining the Majority Banks under any provision hereof, but such
Affiliate shall otherwise be considered a "Bank", and the assigning Bank
shall otherwise be considered to have disposed of any Loans so assigned,
for purposes hereof, including, without limitation, paragraphs 3.1 and
12 hereof.
In addition, notwithstanding anything to the contrary contained in
this paragraph 14.6, any Bank may at any time and from time to time
assign all or any portion of its rights under this Agreement with
respect to its Loans, its Commitments and its Notes to a Federal Reserve
Bank. No such assignment shall release the assignor Bank from its
obligations hereunder.
No Bank shall, as between the Company and such Bank, be relieved
of any of its obligations hereunder as a result of granting
participations in all or any part of the Loans and the Notes of such
Bank or other obligations owed to such Bank.
This Agreement shall be binding upon and inure to the benefit of
the Banks, the Agent and the Company and their respective successors and
assigns. All covenants, agreements, warranties and representations made
herein, and in all certificates or other documents delivered in
connection with this Agreement by or on behalf of the Company shall
survive the execution and delivery hereof and thereof, and all such
covenants, agreements, representations and warranties shall inure to the
respective successors and assigns of the Banks and the Agent whether or
not so expressed.
The Agent shall maintain a copy of each assignment delivered to it
and a register or similar list for the recordation of the names and
addresses of the Banks and the Commitment Percentages of the Banks and
the principal amount of the Loans and the Notes assigned from time to
time. The entries in such register shall be conclusive, in the absence
of manifest error and provided that any required consent of the Company
has been obtained, and the Company, the Agent and the Banks may treat
each Person whose name is recorded in such register as a Bank hereunder
for all purposes of this Agreement. Upon each such recordation, the
assigning Bank agrees to pay to the Agent a registration fee in the sum
of Two Thousand Five Hundred Dollars ($2,500).
14.7 Applicable Law. This Agreement and the Notes are being
delivered in and are intended to be performed in The Commonwealth of
Massachusetts and shall be construed and enforceable in accordance with,
and be governed by, the internal laws of The Commonwealth of
Massachusetts without regard to its principles of conflict of laws.
14.8 Interest. At no time shall the interest rate payable on the
Notes, together with the Facility Fee and the Agent's Fees, to the
extent same are construed to constitute interest, exceed the maximum
rate of interest permitted by law. The Company acknowledges that to the
extent interest payable on the Notes is based on the Alternate Base
Rate, such Rate is only one of the bases for computing interest on loans
made by the Banks, and by basing interest payable on the Notes on the
Alternate Base Rate, the Banks have not committed to charge, and the
Company has not in any way bargained for, interest based on a lower or
the lowest rate at which the Banks may now or in the future make loans
to other borrowers.
14.9 Accounting Terms and Principles. All accounting terms not
herein defined by being capitalized shall be interpreted in accordance
with GAAP, unless the context otherwise expressly requires.
14.10 WAIVER OF TRIAL BY JURY. THE COMPANY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE FULLEST EXTENT PERMITTED OR
NOT PROHIBITED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION
WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREIN.
FURTHER, THE COMPANY HEREBY ACKNOWLEDGES THAT NO REPRESENTATIVE OF THE
AGENT OR THE BANKS OR COUNSEL TO THE AGENT OR THE BANKS HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE AGENT OR THE BANKS WOULD NOT, IN THE
EVENT OF SUCH LITIGATION, SEEK TO ENFORCE SUCH WAIVER. THE COMPANY
ACKNOWLEDGES THAT THE AGENT AND THE BANKS HAVE BEEN INDUCED TO ENTER
INTO THE LOAN DOCUMENTS BY, INTER ALIA, THE PROVISIONS OF THIS
PARAGRAPH.
14.11 CONSENT TO JURISDICTION. THE COMPANY HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY COURT OF THE COMMONWEALTH OF
MASSACHUSETTS OR ANY FEDERAL COURT SITTING IN THE COMMONWEALTH OF
MASSACHUSETTS OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THE LOAN DOCUMENTS. THE COMPANY HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED OR NOT PROHIBITED BY APPLICABLE LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE
OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH A
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE COMPANY HEREBY
AGREES THAT A FINAL JUDGMENT IN ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH A COURT, AFTER ALL APPROPRIATE APPEALS, SHALL BE
CONCLUSIVE AND BINDING UPON IT.
14.12 SERVICE OF PROCESS. PROCESS MAY BE SERVED IN ANY SUIT,
ACTION, COUNTERCLAIM OR PROCEEDING OF THE NATURE REFERRED TO IN
PARAGRAPH 14.11 BY MAILING COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED, TO THE ADDRESS OF THE
COMPANY SET FORTH IN PARAGRAPH 11.1 OR TO ANY OTHER ADDRESS OF WHICH THE
COMPANY SHALL HAVE GIVEN WRITTEN NOTICE TO THE AGENT. THE COMPANY
HEREBY AGREES THAT SUCH SERVICE (I) SHALL BE DEEMED IN EVERY RESPECT
EFFECTIVE SERVICE OF PROCESS UPON IT IN ANY SUCH SUIT, ACTION,
COUNTERCLAIM OR PROCEEDING, AND (II) SHALL TO THE FULLEST EXTENT
PERMITTED OR NOT PROHIBITED BY APPLICABLE LAW, BE TAKEN AND HELD TO BE
VALID PERSONAL SERVICE UPON AND PERSONAL DELIVERY TO IT.
14.13 NO LIMITATION ON SERVICE OR SUIT. NOTHING IN THE LOAN
DOCUMENTS, OR ANY MODIFICATION, WAIVER, OR AMENDMENT THERETO, SHALL
AFFECT THE RIGHT OF THE AGENT OR ANY BANK TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR LIMIT THE RIGHT OF THE AGENT OR ANY BANK TO
BRING PROCEEDINGS AGAINST THE COMPANY IN THE COURTS OF ANY OTHER
JURISDICTION OR JURISDICTIONS.
15. OTHER OBLIGATIONS OF THE COMPANY.
15.1 Taxes and Fees. Should any tax (other than a tax based upon
the net income of any Bank), recording or filing fee become payable in
respect of this Agreement or the Notes or any amendment, modification or
supplement hereof or thereof, the Company agrees to pay the same
together with any interest or penalties thereon and agrees to hold the
Agent and the Banks harmless with respect thereto.
15.2 Expenses. Whether or not the transactions contemplated by
this Agreement shall be consummated, the Company agrees to pay the
reasonable out-of-pocket expenses of the Agent (including the reasonable
fees and expenses of counsel to the Agent and, without limitation,
Special Counsel) in connection with the preparation, reproduction,
execution and delivery of this Agreement and the Notes and the other
exhibits annexed hereto (in such case, with respect to the Special
Counsel, in accordance with the letter previously delivered to the
Company by the Special Counsel) and any modifications, waivers, consents
or amendments hereto and thereto, and the Company further agrees to pay
the reasonable out-of-pocket expenses of the Agent and the Banks
(including the reasonable fees and expenses of their respective counsel)
incurred in connection with the interpretation and enforcement of any
provision of this Agreement or collection under the Notes, whether or
not suit is instituted.
16. EFFECTIVE DATE. This Agreement shall be effective at such time
(specified in writing by the Agent to the Company and the Banks) (the
"Effective Date") as executed counterparts of this Agreement have been
delivered to the Agent by the Company and each Bank.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed as of the date first written above.
GREEN MOUNTAIN POWER CORPORATION
By: /s/ Xxxxx X. Norse
Title: Vice President, Chief
Financial Officer and
Treasurer
Domestic Lending Office: FLEET NATIONAL BANK,
Office listed in paragraph 11.1 Individually and as Agent
Eurodollar Lending Office:
Office listed in paragraph 11.1
By: /s/ Xxxxxx X. Xxxxxxx
Title: Director
Domestic Lending Office: THE BANK OF NOVA SCOTIA
Office listed in paragraph 11.1
Eurodollar Lending Office: By: /s/ Xxxxxxx X. Xxxxx
Office listed in paragraph 11.1 Title: Relationship Manager
Domestic Lending Office: STATE STREET BANK AND TRUST COMPANY
Office listed in paragraph 11.1
Eurodollar Lending Office: By: /s/ Xxxx Xxxx Xxxxxxxxx
Office listed in paragraph 11.1 Title: Vice President
EXHIBIT A
COMMITMENT
Tranche A Loan Tranche B Loan Total Commitment
Bank Commitment* Commitment* Commitment* Percentage*
THE BANK OF NOVA $5,000,000 $10,000,000 $15,000,000 33 1/3%
SCOTIA
STATE STREET BANK $5,000,000 $10,000,000 $15,000,000 33 1/3%
AND TRUST COMPANY
FLEET NATIONAL BANK $5,000,000 $10,000,000 $15,000,000 33 1/3%
AGGREGATE $15,000,000 $30,000,000 $45,000,000 100%
COMMITMENTS
* The Aggregate Tranche A Loan Commitments, Aggregate Tranche B Loan
Commitments and the Aggregate Total Commitments may be increased
pursuant to paragraph 2.18 of the Agreement and, consequently, the
Commitment Percentage may change accordingly.
EXHIBIT B
SCHEDULE I
Green Mountain Power Corporation Pricing Grid
Tranche B Loans*
Pricing Senior Secured LIBOR Margin** Facility Fee** All-in LIBOR
Level Rating Cost**
I >=A-/A3 or better 25.0 10.0 35.0
II =BBB+/Baa1 27.5 12.5 40.0
III =BBB/Baa2 35.0 15.0 50.0
IV =BBB-/Baa3 57.5 17.5 75.0
V =A-/A3 or better 26.5 8.5 35.0
II =BBB+/Baa1 30.0 10.0 40.0
III =BBB/Baa2 37.5 12.5 50.0
IV =BBB-/Baa3 60.0 15.0 75.0
V
