EXHIBIT 10.B.94
FOURTH AMENDED AND RESTATED
CREDIT AGREEMENT
by and among
GREEN MOUNTAIN POWER CORPORATION,
FLEET NATIONAL BANK,
SOVEREIGN BANK
and
FLEET NATIONAL BANK,
AS AGENT
_______________________
_______________________
$30,000,000
_______________________
_______________________
Dated as of June 16, 2004
v
1. DEFINITIONS 6
1.1 DEFINED TERMS 6
1.2 OTHER DEFINITIONAL PROVISIONS 15
2. AMOUNT AND TERMS OF LOANS AND LETTERS OF CREDIT 16
2.1 LOANS 16
2.2 LETTERS OF CREDIT 16
2.3 PROCEDURE FOR BORROWINGS 21
2.4 NOTES 22
2.5 REDUCTIONS OF THE AGGREGATE REVOLVING CREDIT COMMITMENTS 23
2.6 PREPAYMENTS AND PAYMENT OF LOANS 24
2.7 CONVERSION OPTIONS 25
2.8 INTEREST RATE AND PAYMENT DATES FOR LOANS 25
2.9 SUBSTITUTED INTEREST RATE 26
2.10 ILLEGALITY 27
2.11 INCREASED COSTS 27
2.12 INDEMNITY 28
2.13 USE OF PROCEEDS 29
2.14 CAPITAL ADEQUACY 29
2.15 NOTICE OF COSTS: SUBSTITUTION OF BANKS 29
2.16 CONVERSION TO TERM LOANS 30
3. FEES; PAYMENTS 31
3.1 FACILITY FEE 31
3.2 FEES OF THE AGENT 31
3.3 COMPUTATION OF INTEREST AND FEES 31
3.4 PRO RATA TREATMENT AND APPLICATION OF PRINCIPAL PAYMENTS 31
3.5 CLOSING FEE 32
4. REPRESENTATIONS AND WARRANTIES 32
4.1 SUBSIDIARY 32
4.2 CORPORATE EXISTENCE AND POWER 32
4.3 CORPORATE AUTHORITY 32
4.4 BINDING AGREEMENT 33
4.5 LITIGATION 33
4.6 NON CONFLICTING AGREEMENTS 33
4.7 TAXES 33
4.8 FINANCIAL STATEMENTS 34
4.9 COMPLIANCE WITH APPLICABLE LAWS 34
4.10 GOVERNMENTAL REGULATIONS 34
4.12 FEDERAL RESERVE REGULATIONS 35
4.13 NO MISREPRESENTATION 35
4.14 PENSION PLANS 35
4.15 PUBLIC UTILITY HOLDING COMPANY ACT 35
4.16 APPROVALS 35
4.17 RESERVED 36
4.18 NO ADVERSE CHANGE OR EVENT 36
5. CONDITIONS OF BORROWING - FIRST BORROWING AND EFFECTIVE DATE
5.1 EVIDENCE OF CORPORATE ACTION 36
5.2 REVOLVING CREDIT NOTES 36
5.3 RESERVED 36
5.4 OPINION OF COUNSEL TO THE COMPANY 36
5.5 FEES 37
5.6 CONSENTS, LICENSES 37
6. CONDITIONS OF BORROWING - ALL BORROWINGS 37
6.1 COMPLIANCE 37
6.2 LOAN CLOSINGS 37
6.3 APPROVAL OF COUNSEL 37
6.4 BORROWING REQUEST 37
6.5 OTHER DOCUMENTS 37
7. AFFIRMATIVE COVENANTS 37
7.1 CORPORATE EXISTENCE 38
7.2 TAXES 38
7.3 INSURANCE 38
7.4 PAYMENT OF INDEBTEDNESS AND PERFORMANCE OF OBLIGATIONS 38
7.5 OBSERVANCE OF LEGAL REQUIREMENTS; ERISA 38
7.6 FINANCIAL STATEMENTS AND OTHER INFORMATION 38
7.7 INSPECTION 38
8. NEGATIVE COVENANTS 38
8.1 FUNDED DEBT 38
8.2 LIENS 38
8.3 MERGERS AND CONSOLIDATIONS 38
8.4 SALE OF PROPERTY 38
8.5 DIVIDENDS; DISTRIBUTIONS 38
8.6 GUARANTIES 38
8.7 AMENDMENT OF CHARTER OR BY-LAWS 38
8.8 FUNDED DEBT TO CAPITALIZATION TEST 38
9. EVENTS OF XXXXXXX 00
00. THE AGENT 38
10.1 APPOINTMENT 38
10.2 DELEGATION OF DUTIES, ETC. 38
10.3 INDEMNIFICATION 38
10.4 EXCULPATORY PROVISIONS 38
10.5 AGENT IN ITS INDIVIDUAL CAPACITY 38
10.6 KNOWLEDGE OF DEFAULT 38
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 38
11.3 NOTICES BY THE AGENT OR A BANK 38
12. RIGHT OF SET-OFF 38
13. AMENDMENTS WAIVERS AND CONSENTS 38
14. OTHER PROVISIONS 38
14.1 NO WAIVER OF RIGHTS BY THE BANKS 38
14.2 HEADINGS; PLURALS 38
14.3 COUNTERPARTS 38
14.4 SEVERABILITY 38
14.5 INTEGRATION 38
14.6 SALES AND PARTICIPATIONS IN LOANS AND NOTES, SUCCESSORS AND ASSIGNS,
SURVIVAL OF REPRESENTATIONS AND WARRANTIES 38
14.7 APPLICABLE LAW 38
14.8 INTEREST 38
14.9 ACCOUNTING TERMS AND PRINCIPLES 38
14.10 WAIVER OF TRIAL BY JURY 38
14.11 CONSENT TO JURISDICTION 38
14.12 SERVICE OF PROCESS 38
14.13 NO LIMITATION ON SERVICE OR SUIT 38
15. OTHER OBLIGATIONS OF THE COMPANY 38
15.1 TAXES AND FEES 38
15.2 EXPENSES 38
15.3 INDEMNIFICATION 38
15.4 LOST NOTES 38
15.5 TRANSITIONAL ARRANGEMENTS 38
16. EFFECTIVE DATE 38
EXHIBIT A - REVOLVING CREDIT COMMITMENTS 38
EXHIBIT B - PRICING GRID/FACILITY FEE 38
SCHEDULE I 38
SCHEDULE II 38
EXHIBIT C - FORM OF BORROWING REQUEST 38
EXHIBIT D - FORM OF REVOLVING CREDIT NOTES 38
GRID - REVOLVING CREDIT NOTE 38
EXHIBIT E - FORM OF CONVERSION/CONTINUATION REQUEST 38
EXHIBIT F - SUBSIDIARIES 38
EXHIBIT G - FORM OF OPINION OF COUNSEL TO COMPANY 38
EXHIBIT H - FORM OF TERM NOTES 38
GRID - TERM NOTE 38
EXHIBIT I - FORM OF TERM LOAN REQUEST 38
79
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 16,
2004, 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") amends and restates in its entirety the Third Amended and Restated
Credit Agreement dated of June 18, 2003(the "Credit Agreement").
The Company has requested that the Banks agree to certain amendments to the
Credit Agreement and, subject to the terms and provisions hereof, the Banks are
willing to so amend the Credit Agreement and to restate the Credit Agreement in
its entirety, as follows:
1. DEFINITIONS1. DEFINITIONS.
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1.1 DEFINED TERMS1.1 DEFINED TERMS. As used in this Agreement, terms
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defined in the paragraphs above have the meanings therein indicated, and the
following terms have the following meaning:
"Accountants" Deloitte & Touche LLP, or such other firm of certified
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public accountants of recognized national standing selected by the Company.
"Additional First Mortgage Bonds": those first mortgage bonds as may have been
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or as may be approved for issuance by the VPSB subsequent to June 19, 2002.
"Affected Loan": as defined in paragraph 2.9.
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"Affected Principal Amount": (i) in the event that the Company shall fail
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for any reason to borrow a Loan constituting a LIBOR Loan after it shall have
delivered a Borrowing Request to the Agent, an amount equal to the principal
amount of such LIBOR Loan; (ii) in the event that the right of the Company to
have a LIBOR 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 LIBOR Loan; and (iii) in the
event that the Company shall prepay or repay all or any part of the principal
amount of a LIBOR 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
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intermediaries, controls or is controlled by or is under common control with
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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.
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"Aggregate Commitments": the sum of the Aggregate Revolving Credit
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Commitments and the Aggregate Term Loan Commitments, each as in effect from time
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to time.
"Aggregate Revolving Credit Commitments": the sum of the Revolving Credit
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Commitments set forth in Exhibit A as the same may be reduced pursuant to
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paragraph 2.5.
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"Aggregate Term Loan Commitments": the sum of the Term Loan Commitments, as in
effect from time to time.
"Agreement": this Fourth Amended and Restated Credit Agreement, as same
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may be amended, supplemented or otherwise modified from time to time.
"Alternate Base Rate": the higher of (a) the annual rate of interest publicly
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announced from time to time by the Agent at the Agent's head office as its
"prime rate" and (b) one-half of one percent ( %) above the Federal Funds
Effective Rate.
"Alternate Base Rate Loans": Loans (or any portion thereof) at such time as
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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
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Office or LIBOR Lending Office, as the case may be.
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"Applicable Margin": the rate per annum determined by reference to SCHEDULE I
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on EXHIBIT B hereto based upon the Debt Rating of the Company; provided that if
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the Company has no Debt Rating, the Applicable Margin shall be the highest rate
per annum (i.e., Pricing Level IV) applicable during the relevant period.
"Authorized Signatory": the president, any vice president, the treasurer, the
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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
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bank or lender that becomes a signatory hereto pursuant to paragraph 14.6.
"Borrowing": (a) a borrowing of additional principal amounts pursuant to
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paragraph 2.3; or (b) a conversion of Revolving Credit Loans into Term Loans, in
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each case consisting of simultaneous Loans of the same Type made by each Bank.
"Borrowing Request": as defined in paragraph 2.3.
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"Borrowing Date": (a) in respect of Revolving Credit Loans, any date specified
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in a Borrowing Request delivered pursuant to paragraph 2.3 as a date on which
the Company requests the Banks to make Loans hereunder, or (b) in respect of
Term Loans, the Term Loan Conversion Date.
"Business Day": for all purposes other than as set forth in clause (ii) below,
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(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
LIBOR Loans, 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
to close under the laws applicable to commercial banks located in New York City
or Boston and, if the applicable day relates to a LIBOR Loan or an interest
period for a LIBOR Loan, the day on which dealings in dollar deposits are also
carried on in the London interbank market and banks are open for business in
London.
"Code": the Internal Revenue Code of 1986, as the same may be amended from
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time to time, or any successor thereto, and the rules and regulations issued
-
hereunder, as from time to time in effect.
-
"Commitments": in respect of each Bank, such Bank's Revolving Credit Commitment
or Term Loan Commitment as then in effect.
"Commitment Percentage": as to any Bank, in respect of Revolving Credit Loans,
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the Revolving Credit Commitment Percentage, and, in respect of Term Loans, that
percentage equal to the Term Loan Commitment of such Bank divided by the
Aggregate Term Loan Commitments of all Banks, expressed as a percentage.
"Commonly Controlled Entity": an entity, whether or not incorporated, which is
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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.
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"Consolidated Net Worth": the means the aggregate of the capital stock and other
----------------------
equity accounts (including, without limitation, retained earnings and paid-in
capital) of the Consolidated Company.
"Conversion/Continuation Request": as defined in paragraph 2.7.
--------------------------------
"Conversion Date": the date on which a Loan of one Type is converted to a Loan
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of another Type or continued as a Loan of the same Type.
"Debt Rating": the public debt rating of the Company's First Mortgage Bonds
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according to Standard & Poor's Corporation or Xxxxx'x Investor Service. In the
--
event of a split rating, the higher of the two ratings will apply, provided that
if one rating is more than one notch above the other, than the rating to be used
for the pricing grid will be one notch above the lower rating. In the event
that neither Standard & Poor's Corporation nor 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 annual report on Form 10-K for the
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fiscal year ending December 31, 2000, the Company's filing of Form 8-K dated
January 5, 2001, the Company's filing of Form 8-K dated January 23, 2001, the
Company's filing of Form 8-K dated January 26, 2001, the Company's filing of
Form 8-K dated March 6, 2001, the Company's quarterly report on form 10-Q for
fiscal quarter ending March 31, 2001, the Company's filing of Form 8-K dated
April 25, 2001 and the Company's filing of Form 8-K dated May 2, 2001, and the
Company's filing of form 8-K dated June 28, 2001, the Company's quarterly report
on Form 10-Q dated August 10, 2001, the Company's filing of form 8-K dated
August 15, 2001, the Company's quarterly report on form 10-Q dated November 13,
2001, the Company's filing of form SC 13 G/A dated February 12, 2002, the
Company's filing of form 8-K dated March 7, 2002, the Company's filing of form
8-K dated March 25, 2002, the Company's filing of form U-3A-2 dated March 25,
2002, the Company's annual report on form 10-K dated March 25, 2002, the
Company's quarterly report on form 10-Q dated May 6, 2002, the Company's filing
of form 10-Q/A dated May 7, 2002, the Company's filing of form 8-K on May 20,
2002, the Company's filing of form 8-K on June 28, 2002, the Company's filing of
form 8-K on July 17, 2002, the Company's filing of form 8-K on July 31, 2002,
the Company's quarterly report on form 10-Q dated August 14, 2002, the Company's
filing of form 8-K on August 14, 2002, the Company's quarterly report on form
10-Q dated November 13, 2002, the Company's filing of form 8-K on December 16,
2002, the Company's filing of form SC 13 G/A dated February 10, 2003, the
Company's annual report on form 10-K dated March 24, 2003, the Company's filing
of form 8-K on May 6, 2003, the Company's quarterly report on form 10-Q dated
May 13, 2003, the Company's filing of form 8-K on July 11, 2003, the Company's
quarterly report on form 10-Q dated August 11, 2003, the Company's quarterly
report on form 10-Q dated November 1, 2003, the Company's filing of form 8-K on
December 12, 2003, the Company's filing of form 8-K on December 22, 2003, the
Company's annual report on form 10-K dated March 11, 2004, the Company's
quarterly report on form 10-Q dated May 10, 2004, and the Company's filing of
form 8-K on May 14, 2004.
"Dollars" and "$": dollars in lawful currency of the United States of
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America.
"Domestic Lending Office": as to any Bank, initially the office of such Bank
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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.
"Effective Date": as defined in paragraph 16.
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"Environmental Law": Any and all federal, state, local and foreign statutes,
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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,
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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
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time to time, and the rules and regulations issued thereunder, as from time to
time in effect.
"Event of Default": any of the events specified in paragraph 9, provided that
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any requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"Federal Funds Effective Rate": for any day, the weighted average of the rates
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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": (a) the Company's First Mortgage Bonds as set forth in
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the Company's 1997 Form 10-K filed on March 27, 1998 with the Securities and
Exchange Commission; and (b) the Additional First Mortgage Bonds.
"FNB": Fleet National Bank, a national banking association.
---
"Facility Fee": as defined in paragraph 3.1.
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"Financial Statements": as defined in paragraph 4.8.
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"Funded Debt": all obligations of the Company evidenced by bonds (including,
------------
without limitation, the First Mortgage Bonds), debentures, notes or other
-
similar instruments and all other evidences of indebtedness of the Company
-
(including, without limitation, 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.
"Fronting Fee": as defined in paragraph 2.2(j).
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"GAAP": generally accepted accounting principles from time to time followed by
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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
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of each March, June, September and December commencing on the first such day to
occur after such Loan is made or any LIBOR 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 LIBOR 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 LIBOR 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.
"Interest Period":
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(a) with respect to any LIBOR 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 LIBOR 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, its irrevocable
Conversion/Continuation Request as provided in paragraph 2.7, or its irrevocable
Term Loan Request as provided in paragraph 2.16; and
(ii) thereafter, each period commencing on, as the case may be, the Borrowing
Date or a Conversion Date with respect to such LIBOR 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) [Reserved]
(c) All of the foregoing provisions relating to Interest Periods set forth in
paragraph (a) above are subject to the following:
(i) if any Interest Period pertaining to a LIBOR 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 LIBOR 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 LIBOR Loans so as
not to have more than twelve different Interest Periods relating to LIBOR Loans
outstanding at any one time; and
(v) the Company shall select Interest Periods pertaining to LIBOR 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 and
LIBOR 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.
"Letters of Credit": letters of credit issued pursuant to paragraph 2.2.
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"LIBOR": as applicable to any LIBOR Loan, the rate per annum as determined on
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the basis of the offered rates for deposits in U.S. Dollars, for a period of
-
time comparable to the Interest Period for such LIBOR Loan which appears on the
-
Telerate (or its successor's) page 3750 as of 11:00 a.m. London time on the day
that is two (2) Business Days (as such definition relates to LIBOR Loans)
preceding the first day of such LIBOR Loan; provided, however, if the rate
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described above does not appear on the Telerate (or its successor's) system on
any applicable interest determination date, LIBOR shall be the rate (rounded
upward, if necessary, to the nearest one hundred-thousandth of a percentage
point), determined on the basis of the offered rates for deposits in U.S.
dollars for a period of time comparable to the Interest Period for such LIBOR
Loan which are offered by four major banks in the London interbank market at
approximately 11:00 a.m. London time, on the day that is two (2) Business Days
(as such definition relates to LIBOR Loans) preceding the first day of such
LIBOR Loan as selected by Agent. The principal London office of each of the four
major London banks will be requested to provide a quotation of its U.S. Dollar
deposit offered rate. If at least two such quotations are provided, the rate for
that date will be the arithmetic mean of the quotations. If fewer than two
quotations are provided as requested, the rate for that date will be determined
on the basis of the rates quoted for loans in U.S. dollars to leading European
banks for a period of time comparable to Interest Period for such LIBOR Loan
offered by major banks in New York City at approximately 11:00 a.m. New York
City time, on the day that is two (2) Business Days (as such definition relates
to LIBOR Loans) preceding the first day of such LIBOR Loan. In the event that
Agent is unable to obtain any such quotation as provided above, it will be
deemed that LIBOR pursuant to a LIBOR Loan cannot be determined. In the event
that the Board of Governors of the Federal Reserve System shall impose a Reserve
Percentage (as defined below) with respect to LIBOR deposits of member banks of
the Federal Reserve System then for any period during which such Reserve
Percentage shall apply, LIBOR shall be equal to the amount determined above
divided by an amount equal to 1 minus the Reserve Percentage. "Reserve
Percentage" shall mean the maximum aggregate reserve requirement (including all
basic, supplemental, marginal and other reserves) which is imposed on member
banks of the Federal Reserve System against "Euro-currency Liabilities" as
defined in Regulation D.
"LIBOR Lending Office": as to any Bank, initially the office of such Bank
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designated as such on the signature page hereof, and thereafter such other
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office as reported by such Bank to the Agent, that shall be making or
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maintaining LIBOR Loans.
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"LIBOR Loan": Loans (or any portions thereof) at such time as they (or such
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portions) are made or being maintained at a rate of interest based upon LIBOR.
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"Lien": any mortgage, pledge, hypothecation, assignment, deposit arrangement,
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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, the Notes, and any document and
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instrument executed and/or delivered in connection herewith or therewith.
"Loans": collectively, all Revolving Credit Loans and Term Loans.
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"Majority Banks": either: (a) at any time when there are fewer than three (3)
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Banks party hereto, (i) at any time prior to the termination or expiration of
the Commitments, Banks having at least 100% of the Aggregate Commitments; or
(ii) at any time upon or after the termination or expiration of the Commitments,
Banks holding at least 100% of the outstanding Loans; or (b) at any time when
there are three (3) or more Banks party hereto, (i) at any time prior to the
termination or expiration of the Commitments, two or more Banks having at least
66 2/3% of the Aggregate Commitments; or (ii) at any time upon or after the
termination or expiration of the Commitments, two or more 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, charged with the administration thereof or compliance
by the Company with any request or directive from any Governmental Body, the
result of which would have a Material Adverse Effect. The term "Material
Adverse Change" shall also include, without limitation, the occurrence or
failure to occur of any event, which occurrence or failure to occur has a
Material Adverse Effect with respect to the Company.
"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.
"Maturity Date": the earlier of (a) the Revolving Credit Termination Date, if
--------------
each Revolving Credit Loan is not converted to a Term Loan pursuant to paragraph
-
2.16, or (b) the date that is three hundred sixty-four (364) days following the
Term Loan Conversion Date, if any Revolving Credit Loan is converted to a Term
Loan pursuant to paragraph 2.16.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined in
-------------------
Section 4001 (a)(3) of ERISA.
-----
"Notes": collectively, the Revolving Credit Notes and the Term Notes, as in
-----
effect from time to time.
---
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
----
Subtitle A of Title IV of ERISA, or any Government 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.
"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.
"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.
"Revolving Credit Commitment": in respect of any Bank, such Bank's undertaking
----------------------------
to make Revolving Credit Loans and Letters of Credit 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 Aunder the heading 'Revolving Credit Commitment', as the same may be
----------
reduced pursuant to paragraph 2.5.
---
"Revolving Credit Commitment Percentage": as to any Bank, the percentage set
-----------------------------------------
forth opposite the name of such Bank on Exhibit A under the heading "Revolving
- ---------
Credit Commitment Percentage".
"Revolving Credit Loans": Loans made pursuant to paragraph 2.1 or paragraph
------------------------
2.2(a).
--
"Revolving Credit Notes": as defined in paragraph 2.4.
------------------------
"Revolving Credit Termination Date": June 15, 2005.
------------------------------------
"Short-Term Funded Debt": debt with initial maturities of less than one (1)
------------------------
year.
--
"Special Counsel": Xxxxx Xxxxxxx Xxxxxxx Israels 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.
"Term Loan Commitments": in respect of any Bank, such Bank's undertaking to make
----------------------
Term Loans pursuant to paragraph 2.16 of this Agreement in an aggregate
principal amount equal to such Bank's Revolving Credit Commitment Percentage of
the outstanding Revolving Credit Loans on the Revolving Credit Termination Date,
as the same may be reduced from time to time or terminated pursuant to the
provisions hereof.
"Term Loan Conversion Date": See paragraph 2.16.
-----------------------------
"Term Loan Request": See paragraph 2.16.
---------------------
"Term Notes": See paragraph 2.16.
-------------
"Term Out Period": the period commencing on the Term Loan Conversion Date and
--------------------
ending on the date the Term Loans are fully and finally paid.
"Total Capitalization": the sum of (a) all Consolidated Net Worth plus (b)
---------------------
Funded Debt.
---
"Type": Loans made hereunder as Alternate Base Rate Loans or LIBOR Loans, as
----
the case may be.
-
"VPSB": the Vermont Public Service Board.
----
1.1 OTHER DEFINITIONAL PROVISIONS1.2 OTHER DEFINITIONAL PROVISIONS.
---------------------------------
ii. 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.
iii. 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.
iv. 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 AND LETTERS OF CREDIT2. AMOUNT AND TERMS OF LOANS
---------------------------------------------------
AND LETTERS OF CREDIT.
1.2 LOANS2.1 LOANS. Subject to the terms and conditions of this
----------
Agreement, each Bank severally agrees to (a) make Revolving Credit Loans to the
---
Company from time to time on and after the Effective Date to, but excluding, the
Revolving Credit Termination Date; provided that the sum of the aggregate unpaid
--------
principal amount of all Revolving Credit Loans made by or due to each Bank and
such Bank's share of the aggregate outstanding face amount of all Letters of
Credit at any one time shall not exceed an amount equal to such Bank's Revolving
Credit Commitment; and provided further that the sum of the aggregate unpaid
-----------------
principal amount of the Revolving Credit Loans at any one time outstanding and
the aggregate outstanding face amount of all Letters of Credit shall not exceed
the lesser of (i) the Aggregate Revolving Credit Commitments and (ii) the
aggregate outstanding principal balance of all Revolving Credit Loans and
Letters of Credit permitted to be outstanding hereunder; and (b) at the election
of the Company, and subject to the requirements of paragraph 2.16 below, convert
the principal amount of the Revolving Credit Loans outstanding on the Revolving
Credit Termination Date to Term Loans. During the period from the Effective
Date to the Revolving Credit Termination Date, the Company may borrow, repay and
reborrow Revolving Credit Loans hereunder, and may convert all or any part of
the Revolving Credit Loans from one Type to another Type or continue all or any
part of the Revolving Credit Loans as the same Type in accordance with and
subject to the terms and provisions hereof. The Company may not reborrow Term
Loans repaid hereunder, but may convert all or any part of the Term Loans from
one Type to another Type or continue all or any part of the Term Loans as the
same Type in accordance with and subject to the terms and provisions hereof.
1.2 LETTERS OF CREDIT.2.2 LETTERS OF CREDIT
--------------------
(a) Generally. Subject to and upon the terms and conditions contained
---------
herein, at the request of Company, prior to the Revolving Credit Termination
Date the Agent shall provide for one or more letters of credit in the aggregate
amount not to exceed Three Million Dollars ($3,000,000.00) for the account of
Company containing terms and conditions acceptable to Agent (the "Letters of
Credit"). Any payments made by Agent in connection with the Letters of Credit
shall constitute additional Revolving Credit Loans to Company pursuant to
section 2.1 hereof and, any such Revolving Credit Loans shall, upon and
following the Term Loan Conversion Date, constitute Term Loans. The Letters of
Credit issued hereunder and all obligations in connection therewith shall be
obligations hereunder and under the Notes.
(b) Fees. In addition to any charges, fees or expenses charged by any
----
Agent in connection with the Letters of Credit, Company shall pay to Agent for
the benefit of the Banks a letter of credit fee at a rate equal to the
Applicable Margin per annum on the face amount of the Letters of Credit, payable
in advance upon the issuance or renewal (including automatic renewals) of each
such Letter of Credit and on each anniversary of the date of issuance for any
Letter of Credit having a term in excess of one year (any such amount that is
payable upon the issuance (or any anniversary thereof) or renewal of such Letter
of Credit is to be pro-rated for the period from the date of such issuance or
renewal through the expiration date of such Letter of Credit), except that
Company shall pay to Agent for the benefit of the Banks such letter of credit
fee, at Agent's option, without notice, at the Applicable Margin plus 2.0% per
annum on the face amount of the Letters of Credit for the period from and after
the date of the occurrence of an Event of Default for so long as such Event of
Default is continuing, such amount to be payable in arrears (to the extent not
previously paid upon issuance or renewal) on the first day of each month for the
immediately preceding month. Such letter of credit fee shall be calculated on
the basis of a three hundred sixty (360) day year and actual days elapsed and
the obligation of Company to pay such fee shall survive the termination or
non-renewal of the Agreement. In the event that, prior to the expiration date
of any Letter of Credit, the original of such Letter of Credit is returned to
the Agent such that the Agent no longer has any obligation thereunder, the Banks
shall credit the Company under this Agreement in an amount equal to that portion
of the letter of credit fee that is attributable to the period from the date of
such return to the date of such expiration.
(c) Availability. No Letters of Credit shall be available unless on the
------------
date of the proposed issuance of any Letters of Credit, the principal of the
outstanding Loans does not exceed the sum of: (i) the Aggregate Revolving Credit
Commitments, less (ii) the face amount of all undrawn outstanding Letters of
Credit, less (iii) the face amount of the proposed Letters of Credit. Except in
the sole discretion of the Agent, no Letter of Credit shall be available unless
its stated expiration date is prior to the Revolving Credit Termination Date.
Effective on the issuance of each Letter of Credit, the maximum amount of Loans
that the Company may request hereunder shall be reduced by the face amount of
such Letter of Credit. Upon the occurrence of and during the continuation of an
Event of Default, Company's right to request Letters of Credit and Agent's
commitment to issue Letters of Credit shall terminate.
(d) Maximum. Except in Banks' discretion, the amount of all outstanding
-------
Loans and Letters of Credit shall not at any time exceed $30,000,000.00. At any
time an Event of Default exists or has occurred and is continuing, or the
Revolving Credit Termination Date has occurred but the Term Loan Conversion Date
has not occurred, upon Agent's request, Company will either furnish cash
collateral to secure the reimbursement obligations to the Agent in connection
with any Letters of Credit or furnish cash collateral to Agent for the Letters
of Credit in an amount equal to 105% of the aggregate face amount of such
Letters of Credit.
(e) Indemnification. Company shall indemnify and hold Agent and Banks
---------------
harmless from and against any and all losses, claims, damages, liabilities,
costs and expenses which Agent or Banks may suffer or incur in connection with
any Letters of Credit and any documents, drafts or acceptances relating thereto,
including any losses, claims, damages, liabilities, costs and expenses due to
any action taken by any Agent or correspondent with respect to any Letters of
Credit. Company assumes all risks with respect to the acts or omissions of the
drawer under or beneficiary of any Letters of Credit and for such purposes the
drawer or beneficiary shall be deemed Company's agent. Company assumes all
risks for, and agrees to pay, all foreign, federal, state and local taxes,
duties and levies relating to any goods subject to any Letters of Credit or any
documents, drafts or acceptances thereunder. Company hereby releases and holds
Agent and the Banks harmless from and against any acts, waivers, errors, delays
or omissions, whether caused by Company, by any issuer or correspondent or
otherwise with respect to or relating to any Letters of Credit (except to the
extent arising from the gross negligence or willful misconduct on the part of
the Agent or the Banks, as the case may be). The provisions of this Section
2.2(e) shall survive the payment of obligations and the termination or
non-renewal of this Agreement.
(f) Credit. Nothing contained herein shall be deemed or construed to
------
grant Company any right or authority to pledge the credit of Agent or any Bank
in any manner. Company shall be bound by any interpretation made in good faith
by Agent or any Banks under or in connection with any Letter of Credit or any
documents, drafts or acceptances thereunder, notwithstanding that such
interpretation may be inconsistent with any instructions of Company. Agent
shall have the sole and exclusive right and authority to, and Company shall not:
(i) at any time an Event of Default exists or has occurred and is continuing,
(A) approve or resolve any questions of non-compliance of documents, (B) give
any instructions as to acceptance or rejection of any documents or goods or (C)
execute any and all applications for steamship or airway guaranties, indemnities
or delivery orders, and (ii) at all times, (A) grant any extensions of the
maturity of, time of payment for, or time of presentation of, any drafts,
acceptances, or documents, and (B) agree to any amendments, renewals,
extensions, modifications, changes or cancellations of any of the terms or
conditions of any of the applications, Letters of Credit, or docu-ments, drafts
or acceptances thereunder. Agent may take such actions either in its own name
or in Company's name.
(g) Correspondents. Any rights, remedies, duties or obligations granted
--------------
or undertaken by Company to Agent or any corre-spondent in any application for
any Letter of Credit, or any other agreement in favor of Agent or any
correspondent relating to any Letter of Credit, shall be deemed to have been
granted or undertaken by Company to Agent. Any duties or obligations undertaken
by Company to Agent or any correspondent in any application for any Letter of
Credit, or any other agreement by Agent or any Bank in favor of Agent or any
correspondent relating to any Letter of Credit, shall be deemed to have been
undertaken by Company to Agent and Banks and to apply in all re-spects to
Company.
(h) Conditions Precedent. Agent shall have no obligation to issue any
---------------------
Letter of Credit hereunder unless and until all conditions precedent in Sections
5 and 6 hereof are satisfied.
(i) Events of Default. Without limiting any of the rights and remedies of
-----------------
the Agent or Banks hereunder or otherwise, upon the occurrence of an Event of
Default, Agent may, at its option, without notice, (1) cease issuing or
arranging for Letters of Credit or reduce the amounts of Letters of Credit
available to Company and/or (2) terminate any commitment providing for any
future Letters of Credit to be made available by Agent for Company. In addition
to the foregoing, upon termination of the Agreement, Agent shall have no
obligation or commitment to issue Letters of Credit.
(j) Fees; Reimbursement. Company shall pay all charges, fees and expenses
-------------------
reasonably incurred by Agent or charged by any Bank or Agent in connection with
the Letters of Credit including without limitation a Fronting Fee payable to the
Agent for its own behalf in the amount of one hundred twenty-five thousandths
percent (0.125%) of the aggregate face amount of the Letters of Credit
outstanding, which Fronting Fee shall be payable on the date of the issuance of
each Letter of Credit and on the date of each renewal or anniversary of such
issuance.
(k) Participations.
---------------
(i) Prior to issuance by the Agent of any Letter of Credit, the Agent
shall notify each Bank of the issuance thereof. Immediately upon the issuance
by the Agent of any Letter of Credit, each Bank (other than the Agent) shall be
deemed to have irrevocably and unconditionally purchased and received from the
Agent, without recourse or warranty, an undivided interest and participation
equal to the pro rata share of such Bank in all Letters of Credit and
obligations arising in connection with such Letter of Credit and any security
therefor or guaranty pertaining thereto, but in no event greater than an amount
which, when added to such Bank's Revolving Credit Commitment with respect to
Loans then outstanding, exceeds such Bank's Revolving Credit Commitment.
(ii) If the Agent makes a payment on a Letter of Credit and the Company
does not on such date repay or cause to be repaid the amount of such payment,
the Agent shall promptly notify each Bank of such payment and each Bank shall
promptly and unconditionally pay to Agent, in immediately available funds, the
amount of such Bank's pro rata share of such payment. If a Bank does not make
its pro rata share of the amount of such payment available to Agent, such Bank
agrees to pay to Agent forthwith on demand such amount together with interest
thereon at the Federal Funds Effective Rate. The failure of any Bank to make
available to Agent such Bank's pro rata share shall not relieve any other Bank
of its obligation hereunder to make available to Agent its pro rata share, but
no Bank shall be responsible for the failure of any other Bank to make available
to Agent its pro rata share on the date such payment is to be made.
(iii) Whenever the Agent receives a payment on account of the Letters of
Credit, including any interest thereon, as to which Agent has previously
received payments from any Bank, the Agent shall promptly pay to each Bank which
has funded its participating interest therein, in immediately available funds,
an amount equal to such Bank's pro rata share thereof.
(iv) The obligation of each Bank to make payments to Agent in connection with
any payment under a Letter of Credit shall be absolute, unconditional and
irrevocable, not subject to any counterclaim, setoff, qualification or exception
whatsoever (other than for the Agent's gross negligence or willful misconduct),
and shall be made in accordance with the terms and conditions of this Agreement
under all circumstances and irrespective of whether or not the Company may
assert or have any claim for any lack of validity or unenforceability of this
Agreement or any of the other Loan Documents; the existence of any Event of
Default; any draft, certificate or other document presented under a Letter of
Credit having been determined to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect; or the existence of any setoff or defense the Company may have with
respect to any of the Loans or Letters of Credit.
(v) Neither the Agent nor any of its respective officers, directors, employees
or agents shall be liable to any Banks for any action taken or omitted to be
taken under or in connection with any of the Letters of Credit except as a
result of gross negligence or willful misconduct on the part thereof. The Agent
does not assume any responsibility for any failure or delay in performance or
breach by the Company or any other Person of any of its obligations under any of
the Letters of Credit or any documents, instruments, or agreements executed or
delivered in connection therewith. The Agent does not make to Banks any express
or implied warranty, representation or guaranty with respect to the Letters of
Credit or the Company. The Agent shall not be responsible to any Bank for any
recitals, statements, information, representations or warranties contained in,
or for the execution, validity, genuineness, effectiveness or enforceability of
or any of the Letters of Credit or any documents, instruments, or agreements
executed or delivered in connection therewith; or the assets, liabilities,
financial condition, results of operations, business, creditworthiness or legal
status of the Company. With respect to any claims by Banks, in connection with
its administration of and enforcement of rights or remedies under any of the
Letters of Credit or any documents, instruments, or agreements executed or
delivered in connection therewith, the Agent shall be entitled to act, and shall
be fully protected in acting upon, any certification, notice or other
communication in whatever form believed by the Agent, in good faith, to be
genuine and correct and to have been signed or sent or made by a proper Person.
With respect to any claims by Banks, the Agent may consult with and employ legal
counsel, accountants and other experts and to advise it concerning its rights,
powers and privileges under the Letters of Credit and shall be entitled to act
upon, and shall be fully protected in any action taken in good faith reliance
upon, any advice given by such experts. With respect to any claims by Banks, the
Agent may employ agents and attorneys-in-fact in connection with any matter
relating to the Letters of Credit and shall not be liable for the negligence,
default or misconduct of any such agents or attorneys-in-fact selected with
reasonable care. The Agent shall not have any liability to any Bank by reason of
the Agent's refraining to take any action under any of the Letters of Credit or
any documents, instruments, or agreements executed or delivered in connection
therewith without having first received written instructions from the Majority
Banks to take such action. The Agent will use the same degree of care and skill
in administering all matters concerning any Letters of Credit as it exercises in
the administration of similar letters of credit issued by it in which no
participations exist. The Agent shall be solely responsible for examining
drawing documents presented with any drawing under any Letter of Credit in
accordance with standards it applies to other Letters of Credit issued by it.
(vi) Each Bank agrees to indemnify and defend Agent (to the extent the
Agent is not reimbursed by Company, but without limiting the indemnification
obligations of Company under this Agreement), on a pro rata basis, from and
against any and all claims which may be imposed on, incurred by or asserted
against Agent in any way related to or arising out of Agent's administration or
enforcement of rights or remedies under any of the Letters of Credit or any of
the transactions contemplated thereby (including costs and expenses which
Company is obligated to pay hereunder), provided that no Bank shall be liable to
Agent for any of the foregoing to the extent that they result solely from the
Agent's willful misconduct or gross negligence.
1.2 PROCEDURE FOR BORROWINGS2.3 PROCEDURE FOR BORROWINGS.
-------------------------------
The Company may effect a Borrowing of a Revolving Credit Loan on any
Business Day occurring on or after the Effective Date by giving the Agent an
irrevocable 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, three Business Days (or fewer days, if each Bank in
its sole discretion agrees) prior to the requested Borrowing Date, if the
Company is requesting that LIBOR 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
LIBOR Loans, Alternate Base Rate Loans or a combination thereof, and (iv) if the
Loans are to be LIBOR 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 Revolving Credit
Commitments. The principal amount of each Bank's Revolving Credit Loan made on
a Borrowing Date shall be in an amount equal to such Bank's Revolving Credit
Commitment Percentage of the Revolving Credit 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 LIBOR 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 Revolving Credit 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, not later than 12:00 noon, 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 (in addition to such Bank's pro rata share of the Loans to be
funded on such Borrowing Date) 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
-----
Revolving Credit Commitment Percentage of such Revolving Credit 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 Revolving Credit Commitment Percentage of such Revolving Credit Loans
shall become immediately available to the Agent, and the denominator of which is
365. Such Bank shall not be entitled to receive interest on its pro rata share
of the Loans for any period prior to the date it actually funds its pro rata
share. 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
(and if and to the extent Agent has funded Bank's pro rata share of the Loans),
the Company shall pay to the Agent forthwith on demand (but without duplication)
an amount equal to such Bank's Revolving Credit Commitment Percentage of such
Revolving Credit 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 Revolving Credit
Loans as set forth in paragraph 2.8. Such payment by the Company, however,
shall be without prejudice to its rights against such Bank.
1.2 NOTES2.4 NOTES.
-----
(a) Revolving Credit Loans made by each Bank with respect to Alternate
Base Rate Loans and LIBOR Loans shall be evidenced by a promissory note of the
Company, substantially in the form of Exhibit D,all with appropriate insertions
----------
therein (as endorsed and as amended or otherwise modified from time to time, a
"Revolving Credit Note" and, collectively, the "Revolving Credit Notes"),
----------------------- -----------------------
payable to the order of such Bank and representing the obligation of the Company
-----
to pay the aggregate unpaid principal amount of all Revolving Credit 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 Revolving Credit
Loan made by such Bank and the other information applicable thereto, and each
payment or prepayment of principal of such Revolving Credit Loan, on the
applicable grid (and any continuations thereof annexed to and constituting a
part of its Revolving Credit Notes. No failure to so record or any error in so
recording shall affect the obligation of the Company to repay such Revolving
Credit Loans, with interest thereon, as herein provided. Each Revolving Credit
Note shall (i) be dated the date the initial Loans are made, (ii) be stated to
mature on the respective Revolving Credit Termination Date and (iii) 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.
(b) Term Notes.The Term Loans, if the Revolving Credit Loans are converted
-----------
to Term Loans pursuant to paragraph 2.16, shall be evidenced by promissory notes
of the Company, substantially in the form of Exhibit H, all with appropriate
---------
insertions therein (as endorsed and as amended or otherwise modified from time
to time, a "Term Note" and, collectively, the "Term Notes"), payable to the
order of such Bank in the amount of such Bank's Term Commitment and representing
the obligation of the Company to pay the aggregate unpaid principal amount of
the Term Loan made by such Bank, with interest thereon as prescribed or
determined herein. Each Bank is hereby authorized to record the date and amount
of the Term Loan made by such Bank and the other information applicable thereto,
and each payment or prepayment of principal of such Term Loan, on the applicable
grid (and any continuations thereof annexed to and constituting a part of its
Term Notes). No failure to so record or any error in so recording shall affect
the obligation of the Company to repay such Term Loan, with interest thereon, as
herein provided. Each Term Note shall (i) be dated the date of the Term Loan
Conversion Date, (ii) be stated to mature on the Maturity Date and (iii) 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.
1.2 REDUCTIONS OF THE AGGREGATE REVOLVING CREDIT COMMITMENTS2.5
--------------------------------------------------------------
REDUCTIONS OF THE AGGREGATE REVOLVING CREDIT COMMITMENTS.
(d) Voluntary Reductions of Revolving Credit Commitments.
---------------------------------------------------------
During the period from the Effective Date to the Revolving Credit Termination
Date the Company shall have the right, upon at least two Business Days' prior
written notice to the Agent, to reduce permanently the Aggregate Revolving
Credit Commitments in whole at any time, or in part from time to time, without
premium or penalty, provided, however, that (A) each partial reduction of such
Aggregate Revolving Credit Commitments shall be in an amount equal to at least
$500,000 or such amount plus a whole multiple of $500,000, and (B) such
Aggregate Revolving Credit Commitments shall not be reduced to an amount less
than the aggregate principal balance of the Revolving Credit Loans outstanding
on the date of such reduction (after giving effect to reductions in such balance
made on such date).
(d) General. Reductions of the Aggregate Revolving Credit Commitments
-------
under clause (a) above shall reduce each Bank's Revolving Credit Commitment pro
rata according to the Revolving Credit Commitment Percentage of such Bank. The
Agent shall promptly notify each Bank of each reduction in the Aggregate
Revolving Credit 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 Revolving Credit Loans according to the outstanding principal
balance of the Revolving Credit Loans. Simultaneously with each reduction of
the Aggregate Revolving Credit Commitments under this paragraph 2.5, the Company
shall prepay the Revolving Credit Loans in the amount, if any, by which the
aggregate unpaid principal balance of the Revolving Credit Loans exceeds the
amount of the Aggregate Revolving Credit Commitments as so reduced.
If any prepayment is made under this paragraph 2.5 or paragraph 2.6 with
respect to any LIBOR Loans (whether consisting of Term Loans or Revolving Credit
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 LIBOR Loans, no LIBOR 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.
1.2 PREPAYMENTS AND PAYMENT OF LOANS2.6 PREPAYMENTS AND PAYMENT OF LOANS.
--------------------------------
v. Voluntary Prepayments. The Company may, at its option, prepay Alternate
----------------------
Base Rate Loans or LIBOR 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 LIBOR 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 at least $100,000, with
respect to prepayments of Alternate Base Rate Loans) or, if less, the
outstanding principal balance of the applicable Notes, provided, however, that
after giving effect to any such prepayment, no LIBOR 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.
(e) Mandatory Repayment. On the Revolving Credit Termination Date, (i)
--------------------
the Company shall repay in full the aggregate principal balance of all Revolving
Credit Loans outstanding on such date, together with accrued interest on such
amount to such date and any Facility Fees, Closing Fees, Usage Fees, Agent's
Fees, Fronting Fees, or other amounts owing hereunder with respect to the
Letters of Credit, the Revolving Credit Loans or under the Revolving Credit
Notes, provided that any Revolving Credit Loan converted to a Term Loan pursuant
--------
to paragraph 2.16 shall be deemed payable on the Maturity Date; and (ii) with
respect to any then-outstanding Letters of Credit will either furnish cash
collateral to secure the reimbursement obligations to the Agent in connection
with any Letters of Credit or furnish cash collateral to Agent for the Letters
of Credit in an amount equal to 105% of the aggregate face amount of such
Letters of Credit in accordance with Section 2.2(d) hereof.
1.2 CONVERSION OPTIONS2.7 CONVERSION OPTIONS.
-------------------
(e) Conversion of Loans. The Company may elect from time to time to
---------------------
convert LIBOR Loans to Alternate Base Rate Loans by giving the Agent at least
one Business Day's prior written notice of such election (a
"Conversion/Continuation Request") (in substantially the form of the
Conversion/Continuation Request attached hereto as Exhibit E), specifying the
---------
amount to be so converted, provided, that any such conversion of LIBOR 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 LIBOR Loans, by giving the
Agent at least three Business Day's (or fewer days, if each Bank in its sole
discretion agrees) 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 LIBOR Loans shall only be made
on a Business Day. In either case, the Conversion/Continuation Notice shall be
substantially in the form of the Conversion/Continuation Request in the form of
Exhibit E. 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 LIBOR Loans or
LIBOR Loans to Alternate Base Rate Loans shall each be in an aggregate principal
amount of at least $500,000. After giving effect to any such conversion, no
LIBOR 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.
(e) Continuation of Loans. Any LIBOR 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 the
Continuation/Conversion Request attached hereto as Exhibit E)to the Agent of its
----------
intention to do so three Business Days (or fewer days, if each Bank in its sole
discretion agrees) 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 LIBOR Loan shall convert to
an Alternate Base Rate Loan immediately upon the expiration of the then current
Interest Period with respect thereto, (ii) any LIBOR Loans that are being
continued as such shall be in an aggregate principal amount of at least $500,000
and (iii) no LIBOR 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.
1.2 INTEREST RATE AND PAYMENT DATES FOR LOANS2.8 INTEREST RATE AND
-----------------------------------------------
PAYMENT DATES FOR LOANS.
(e) 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 LIBOR
Loan, from the Conversion Date thereof, until maturity or until converted into
LIBOR Loans, on the unpaid principal amount thereof at the Alternate Base Rate,
and (ii) Loans made as LIBOR Loans shall bear interest for each Interest Period
with respect thereto on the unpaid principal amount thereof at the sum of the
applicable rate of interest per annum based on LIBOR for each such Interest
Period plus the Applicable Margin. Any change in the Applicable Margin with
----
respect to any Loans (a) 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 and (b) with respect to the occurrence
of the Term Loan Conversion Date shall be effective as of the Term Loan
Conversion Date.
(e) 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 and (ii) sum of the applicable LIBOR plus the Applicable Margin for
LIBOR 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.
(e) 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.
(e) Interest Rate Hedging. The Company and each and every Bank, each in their
----------------------
individual discretion, may enter with each other into interest rate hedging
agreements or instruments with respect to the Company's obligations under this
Agreement.
1.2 SUBSTITUTED INTEREST RATE2.9 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 market, (i) either adequate and
reasonable means do not exist for ascertaining the applicable LIBOR 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 applicable LIBOR will not
adequately and fairly reflect the cost to such Bank of making or maintaining its
funding of a LIBOR Loan with respect to (a) a proposed Loan that the Company has
requested be made as a LIBOR Loan, or (b) a LIBOR Loan that will result from the
requested conversion of any Loan into a LIBOR 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
and/or Continuation/Conversion Request with respect to such Affected Loan or
request that such Affected Loan be made as an Alternate Base 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 in accordance with
paragraph 2.7 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.
1.2 ILLEGALITY2.10 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 LIBOR Loans as contemplated by this Agreement, (a) the
commitment of such Bank hereunder to make LIBOR Loans or to convert Alternate
Base Rate Loans to LIBOR Loans or to continue LIBOR Loans as such shall
forthwith be suspended and (b) such Bank's Loans then outstanding as LIBOR 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 LIBOR 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 LIBOR Loans, such Bank's
commitment to make or maintain such LIBOR 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 LIBOR Loans as contemplated by this Agreement.
1.2 INCREASED COSTS2.11 INCREASED COSTS.
----------------
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 LIBOR Loan or its obligations under this Agreement to make LIBOR 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 LIBOR 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
LIBOR Loans which is not otherwise included in the determination of LIBOR; or
(iii) imposes on such Bank any other condition with respect to Loans hereunder,
the Commitments, or Letters of Credit;
and the result of any of the foregoing is to increase the cost to such Bank of
making, renewing, converting or maintaining its LIBOR Loans, or to reduce any
amount receivable in respect of its LIBOR 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.
1.2 INDEMNITY2.12 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 LIBOR Loans, or if the right of the Company to have LIBOR 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 LIBOR Loan is outstanding, any repayment or
prepayment of the principal amount of such LIBOR 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):
A x (B-C) x D
-
365
where:
"A" equals the Affected Principal Amount;
"B" equals LIBOR (expressed as a decimal), as the case may be, applicable to
such LIBOR Loan;
"C" equals the applicable LIBOR (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) 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.
1.2 USE OF XXXXXXXX0.13 USE OF PROCEEDS. The proceeds of the Revolving
----------------
Credit Loans shall be used only for working capital, capital expenditures, and
other general corporate purposes (including, without limitation, the acquisition
of capital stock of the Company to the extent otherwise permitted hereunder).
1.2 CAPITAL ADEQUACY2.14 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 amount 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.
1.2 NOTICE OF COSTS: SUBSTITUTION OF BANKS2.15 NOTICE OF COSTSSUBSTITUTION 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 forty-five (45) days prior to 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 2.2, 2.11, 2.12 or 2.14) owed to such Bank in connection with
the Loans and any applicable fees in connection with the Letters of Credit
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.
1.2 CONVERSION TO TERM LOANS2.16 CONVERSION TO TERM LOANS
(a) Term Loan Conversion. Subject to (i) the terms and conditions set
forth in this Agreement (including satisfaction of the conditions precedent set
forth in Sections 5 and 6 hereof), (ii) the receipt by the Company of all
approvals of all necessary Governmental Bodies, including, without limitation,
the approval of the VPSB, or the determination by VPSB that its approval is not
required, and (iii) receipt by each Bank of an executed original Term Note in
the form described in paragraph 2.4(b) made payable to such Bank, upon the
delivery of a written notice to the Agent by the Company substantially in the
form of Exhibit I hereto (a "Term Loan Request"), no earlier than sixty (60)
days and no later than ten (10) Business Days prior to the Revolving Credit
Termination Date, the aggregate principal amount of all Revolving Credit Loans
remaining outstanding on the close of the Agent's business on the Revolving
Credit Termination Date (the "Term Loan Conversion Date") shall automatically
convert to Term Loans of like amount with a maturity of three hundred sixty-four
(364) days. Any portion of each Bank's Revolving Credit Commitment not utilized
on or before the Revolving Credit Termination Date shall be permanently
cancelled on such date.
(b) Interest Rate Election for Term Loans. Any portion of the Term Loans that
is a LIBOR Loan for which the Interest Period shall not have terminated as of
the Term Loan Conversion Date shall be continued as a LIBOR Loan for the
applicable Interest Period and any portion of the Term Loans that is an
Alternate Base Rate Loan shall be continued as an Alternate Base Rate Loan after
the Term Loan Conversion Date, unless the Company shall have elected otherwise
by delivery of a Term Loan Request not later than 10:00 a.m., Boston time, one
Business Day prior to the proposed Borrowing Date thereof in the case of
Alternate Base Rate Loans, or not later than 10:00 a.m., Boston time, three
Business Days prior to the proposed Borrowing Date thereof in the case of LIBOR
Loans. Each such Term Loan Request shall be substantially in the form of Exhibit
-------
I attached hereto and shall specify (a) the amount of the Loan, (b) the date of
continuation or conversion, (c) duration of the proposed Interest Period, and
(d) the applicable interest rate selected by the Borrower pursuant to the
provisions of this paragraph 2.16. Each Term Loan Request with respect to a
LIBOR Loan shall be irrevocable. Company shall not be entitled to elect to
convert and continue any Term Loan if the Interest Period thereto would end
after the Maturity Date. Forthwith upon its receipt of a Term Loan Request
hereunder, the Agent shall notify all of the Banks of the particulars thereof.
Each Term Loan Request shall obligate the Company to accept the continued or
converted portion of the Term Loans requested from the Banks on the proposed
Borrowing Date thereof. If any Term Loan Request shall fail to properly specify
the interest rate hereunder, such portion of the Term Loans shall be an
Alternate Base Rate Loan, and if any Term Loan Request shall fail to properly
specify the Interest Period for a LIBOR Loan, such Interest Period shall be
three (3) months. The Agent shall forthwith upon determination of any applicable
LIBOR Rate, provide notice thereof to each Bank and to the Company. If the
Company, with respect to any Term Loan that is also a LIBOR Loan, shall fail to
continue such Term Loan as a LIBOR Loan by delivery of a timely Term Loan
Request such Term Loan shall automatically convert on the last day of the
applicable Interest Period of such LIBOR Loan to an Alternate Base Rate Loan.
2. FEES; PAYMENTS3. FEES; PAYMENTS.
-------------------
1.2 FACILITY FEE3.1 FACILITY FEE. The Company agrees to pay to the Agent
------------
for the account of the those Banks with Commitments or Loans outstanding a fee
(the "Facility Fee") equal to the rate per annum determined by reference to
Schedule II on Exhibit B hereto based upon the Debt Rating of the Company
-------- ----------
multiplied bythe Aggregate Commitments, 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 Maturity Date or the date on which all
Commitments are terminated and all sums due hereunder in respect of Loans and
under the Notes 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. It is hereby expressly understood
---------
and agreed that Facility Fees shall continue to accrue on the daily amount of
each Bank's Commitment during the Term Out Period.
1.2 FEES OF THE AGENT.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 under that certain Agent's Fee Letter dated as of or about
the date hereof.
1.2 COMPUTATION OF INTEREST AND FEES.3.3 COMPUTATION OF INTEREST AND FEES
--------------------------------
(e) Interest in respect of Alternate Base Rate Loans and all other fees
(other than the Facility Fee and the Usage Fee) 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 LIBOR
Loans, the Usage Fee, 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 LIBOR 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.
(e) Each determination of the Alternate Base Rate or LIBOR by the Agent
pursuant to any provision of this Agreement shall be presumed to be correct
absent manifest error.
1.2 PRO RATA TREATMENT AND APPLICATION OF PRINCIPAL PAYMENTS3.4 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. Subject to the
following sentence (a) prior to the occurrence of an Event of Default, all
payments (including prepayments) on account of principal and interest on Loans
shall be applied as directed by the Company; and (b) upon and following the
occurrence of an Event of Default, all payments (including prepayments) on
account of principal, interest, fees, and charges shall be applied to such
principal, interest, fees, and charges in the order and in the amounts
determined by the Agent in its discretion. All payments (including prepayments)
to be made by the Company on account of principal and interest on Loans
comprising the same Borrowing (whether such Borrowing is selected to be paid (or
prepaid) by the Company under clause (a) of the foregoing sentence or selected
to be paid (or prepaid) by the Agent under clause (b) of the foregoing sentence)
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 LIBOR 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.
1.2 CLOSING FEE.3.5 CLOSING FEE The Company agrees to pay on the Effective
------------
Date to the Agent for the account of the Banks a closing fee (the "Closing Fee")
in the amount of $25,000 to be divided among those Banks that are parties
hereto as of the Effective Date, pro rata according to the Revolving Credit
Commitment Percentage of each Bank.
2. REPRESENTATIONS AND WARRANTIES.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:
1.2 SUBSIDIARY.4.1 SUBSIDIARY The Company has only the Subsidiaries set
----------
forth in Exhibit F. 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.
1.2 CORPORATE EXISTENCE AND POWER.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.
1.2 CORPORATE AUTHORITY.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, provided that the consent of the VPSB
(or a determination by the VPSB that no such consent is required) may be
necessary for the conversion of the Revolving Credit Loans into the Term Loans.
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 that the Company may be required to obtain the consent of the
VPSB (or a determination by the VPSB that such consent is not required) for the
conversion of the Revolving Credit Loans into the Term Loans.
1.2 BINDING AGREEMENT.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.
1.2 LITIGATION4.5 LITIGATION. Except for the matters set forth in the
----------
Designated Documents, 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.
1.2 NON CONFLICTING AGREEMENTS4.6 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, provided that the consent of the VPSB (or a determination by the
VPSB that no such consent is required) may be necessary for the conversion of
the Revolving Credit Loans into the Term Loans.
1.2 TAXES.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, 2003,
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.
1.2 FINANCIAL STATEMENTS4.8 FINANCIAL STATEMENTS. The Company heretofore
---------------------
delivered to each Bank (i) copies of the Consolidated Balance Sheet at December
31, 2003, and the related Consolidated Statements of Income, Cash Flows and
Capitalization Data for the year ended December 31, 2003 and (ii) copies of the
Consolidated quarterly report of the Company and its Subsidiaries as of March
31, 2004, 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 February 25, 2004 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, 2003. Since December 31, 2003, each of the Company and each Subsidiary has
conducted its business only in the ordinary course, and as of the Effective
Date, except for the matters set forth in the Designated Documents, there has
been no Material Adverse Change.
1.2 COMPLIANCE WITH APPLICABLE LAWS4.9 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.
1.2 GOVERNMENTAL REGULATIONS4.10 GOVERNMENTAL REGULATIONS. The Company is not
------------------------
an "Investment Company" as such term is defined in the Investment Company
Act of 1940, as amended.
1.2 PROPERTY.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.
1.2 FEDERAL RESERVE REGULATIONS4.12 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 T, 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.
1.2 NO MISREPRESENTATION.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.
1.2 PENSION PLANS4.14 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.
1.2 PUBLIC UTILITY HOLDING COMPANY ACT.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 are 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).
1.2 APPROVALS.4.16 APPROVALS 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, provided that the consent of the VPSB (or a determination by the VPSB
that no such consent is required) may be necessary for the conversion of the
Revolving Credit Loans into the Term Loans.
1.2 RESERVED4.17 RESERVED.
-------- -
1.2 NO ADVERSE CHANGE OR EVENT.4.18 NO ADVERSE CHANGE OR EVENT Except for the
---------------------------
matters set forth in the Designated Documents, since December 31, 2003, no
change in the business, assets, liabilities, condition (financial or otherwise),
results of operations or business prospects of the Company has occurred,
including, without limitation as a result of any decision of any Governmental
Body, and no event has occurred or failed to occur, including, without
limitation as a result of any decision of any Governmental Body, 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.
2. CONDITIONS OF BORROWING - FIRST BORROWING AND EFFECTIVE DATE.5. CONDITIONS
-----------------------------------------------------------------
OF BORROWING - FIRST BORROWING AND EFFECTIVE DATE In addition to the
requirements set forth in paragraph 6, the obligations of the Banks to make the
first Revolving Credit Loans on the initial Borrowing Date are subject to the
fulfillment of the conditions precedent set forth in paragraphs 5.1 through 5.6
below.
1.2 EVIDENCE OF CORPORATE ACTION.5.1 EVIDENCE OF CORPORATE ACTION The
-------------------------------
Agent shall have received a certificate, dated the Effective Date, 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 (or its Executive
Committee, if so authorized under the By-Laws) 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, provided that the consent of the VPSB
(or a determination by the VPSB that no such consent is required) may be
necessary for the conversion of the Revolving Credit Loans into the Term Loans,
(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 Revolving Credit 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.
1.2 REVOLVING CREDIT NOTES.5.2 REVOLVING CREDIT NOTES The Agent shall have
------------------------
received and be in possession of the Revolving Credit Notes executed by the duly
authorized officer or officers of the Company.
1.2 RESERVED5.3 RESERVED.
--------
1.2 OPINION OF COUNSEL TO THE COMPANY.5.4 OPINION OF COUNSEL TO THE COMPANY
------------------------------------
The Agent shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxx 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 G-l.
-----------
1.2 FEES.5.5 FEES The fees of Special Counsel and the Closing Fee shall have
----
been paid, together with any portion of the Agent's Fees that is required to
have been paid on the Effective Date.
1.2 CONSENTS, LICENSES.5.6 CONSENTS, LICENSES 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, provided that the consent of the VPSB (or a determination by the VPSB
that no such consent is required) may be necessary for the conversion of
the Revolving Credit Loans into the Term Loans.
2. CONDITIONS OF BORROWING - ALL BORROWINGS.6 CONDITIONS OF BORROWING - ALL
-----------------------------------------------
BORROWINGS The obligations of the Banks to make all Loans hereunder on each
--
Borrowing Date (including, without limitation, the Revolving Credit Loans and
--
the conversion of the Revolving Credit Loans to Term Loans on the Term Loan
--
Conversion Date) are subject to the fulfillment of the following conditions
--
precedent:
--
1.2 COMPLIANCE.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
last Borrowing Date.
1.2 LOAN CLOSINGS.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.
1.2 APPROVAL OF COUNSEL.6.3 APPROVAL OF COUNSEL All legal matters in
---------------------
connection with the making of each Loan on the Borrowing Date shall be
----
reasonably satisfactory to such counsel with whom the Agent may deem it
----
necessary to consult.
---
1.2 BORROWING REQUEST.6.4 BORROWING REQUEST The Agent shall have received a
------------------
Borrowing Request duly executed by the chief financial officer (or the chief
executive officer or controller, in the absence of the chief financial officer)
of the Company.
1.2 OTHER DOCUMENTS.6.5 OTHER DOCUMENTS The Agent shall have received such
----------------
other documents as the Agent shall reasonably require.
2. AFFIRMATIVE COVENANTS.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:
1.2 CORPORATE EXISTENCE.7 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.
1.2 TAXES.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.
1.2 INSURANCE. 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.
1.2 PAYMENT OF INDEBTEDNESS AND PERFORMANCE OF OBLIGATIONS.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.
1.2 OBSERVANCE OF LEGAL REQUIREMENTS; ERISA. 7.5 OBSERVANCE OF LEGAL
-------------------------------------------- ------------------------
REQUIREMENTS; ERISAObserve 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.
1.2 FINANCIAL STATEMENTS AND OTHER INFORMATION.7.6 FINANCIAL STATEMENTS
--------------------------------------------
AND OTHER INFORMATION Furnish to the Agent and the Banks:
vi. 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;
(f) 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;
(f) 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 (or, in the case of this Agreement, an Event of Default) under
any agreement with respect to Funded Debt of the Company (including this
Agreement);
(f) 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;
(f) 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;
(f) prompt written notice and a copy of any Environmental Notice excluding,
however, any such Environmental Notices relating to the Pine Street canal site
in Burlington, Vermont (the "Pine Street Site") if the effect of such
Environmental Notice relating to the Pine Street Site (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;
(f) 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
(f) 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.
1.2 INSPECTION.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.
2. NEGATIVE COVENANTS.8 NEGATIVE COVENANTS The Company covenants and agrees
-----------------------
that from the Effective Date until the later of the termination of all of the
--
Commitments or the payment in full of all 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:
1.2 FUNDED DEBT.8.1 FUNDED DEBT Create, incur, assume, guarantee or
------------
suffer to exist any Short-Term Funded Debt (excluding the Loans) in excess of
$500,000, 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, other than Short-Term Funded Debt
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.
1.2 LIENS.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, except for Liens arising under the Additional
First Mortgage Bonds and Liens existing as of April 13, 1998 and arising in
connection with the First Mortgage Bonds, 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;
(i) 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 proceeding for review and which Liens do not,
or would not, have a Material Adverse Effect; and
(i) any other Liens not in excess of $500,000 in the aggregate.
1.2 MERGERS AND CONSOLIDATIONS.8.3 MERGERS AND CONSOLIDATIONS67
----------------------------
Consolidate with or merge into any other Person.
1.2 SALE OF PROPERTY.8.4 SALE OF PROPERTY 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.
1.2 DIVIDENDS; DISTRIBUTIONS.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.
1.2 GUARANTIES.8.6 GUARANTIES Except as set forth in the Financial Statements,
----------
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.
1.2 AMENDMENT OF CHARTER OR BY-LAWS.8.7 AMENDMENT OF CHARTER OR BY-LAWS 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.
1.2 FUNDED DEBT TO CAPITALIZATION TEST.8.8 FUNDED DEBT TO CAPITALIZATION TEST
-----------------------------------
Permit the total amount of Funded Debt to exceed sixty percent (60%) of
Total Capitalization.
2. EVENTS OF DEFAULT.9 EVENTS OF DEFAULT The following shall each constitute
-------------------
an Event of Default hereunder:
(f) the failure of the Company to pay (i) any amounts 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;
(f) 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
(f) 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
(f) 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
(f) 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, liquidator 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, liquidator, 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
(f) 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
(f) judgments or decrees against the Company in excess of $3,000,000 in the
aggregate (excluding such judgments or decrees which are insured and as to which
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
(f) 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
(f) the occurrence of a Material Adverse Change; or
(f) the occurrence of any Event of Default (other than an Event of Default
which is waived by the party or parties entitled to take remedial action upon
the occurrence of such Event of Default) under any of the other Loan Documents,
or any other document or instrument evidencing, securing or relating to the
liabilities or obligations of the Company to the Banks hereunder or thereunder.
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 reasonable 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 reasonable
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 Majority 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 LIBOR Loans automatically shall be converted
to Alternate Base Rate Loans, in which event such LIBOR 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 LIBOR 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.
2. THE AGENT.10 THE AGENT The Banks and the Agent agree by and among
----------
themselves that:
----
1.2 APPOINTMENT.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.
1.2 DELEGATION OF DUTIES, ETC.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.
1.2 INDEMNIFICATION.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, from and against any and all
claims, liabilities, obligations, losses, damages, penalties, actions, judgment,
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 reasonably 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.
1.2 EXCULPATORY PROVISIONS.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 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 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 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.
1.2 AGENT IN ITS INDIVIDUAL CAPACITY.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, including, without, limitation,
interest rate hedging agreements or instruments, 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.
1.2 KNOWLEDGE OF DEFAULT.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 offices 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.
1.2 RESIGNATION OF AGENT.10.7 RESIGNATION OF AGENT2 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 without the consent or approval of the
Company. 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.
1.2 REQUESTS TO THE AGENT.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.
2. NOTICES.11 NOTICES
-----------
1.2 MANNER OF DELIVERY.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 or by nationally recognized overnight
courier, 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
000 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Treasurer & Controller
Telephone: 000-000-0000
Telecopy: 000-000-0000
with a copy to:
Xxxxxxxxxxx Xxxxxx, Esq.
Xxxxxxx Xxxxxxx & Xxxx 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
Specialized Industries - Environmental and Power
000 Xxxxxxx Xxxxxx
Mail Stop: MA5-100-09-08
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Associate
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxx Xxxxxxx Berlack Israels LLP
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to the Banks, to:
Fleet National Bank
Specialized Industries - Environmental and Power
000 Xxxxxxx Xxxxxx
Mail Stop: MA5-100-09-08
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Associate
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxx Xxxxxxx Xxxxxxx Israels LLP
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxxxx Xxxx
000 Xxxxx Xxxxxx, XX0 XXX 00-00
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Senior 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 received by 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.
1.2 DISTRIBUTION OF COPIES.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 Conversion/Continuation Request) to
the Agent, the Company shall simultaneously deliver a copy thereof to each Bank.
1.2 NOTICES BY THE AGENT OR A 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.
2. RIGHT OF SET-OFF.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, the Letters of Credit,
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.
2. AMENDMENTS WAIVERS AND CONSENTS.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) increasing the Aggregate Commitments or the
Commitment of any Bank, (ii) postponing or extending the Revolving Credit
Termination Date or the Maturity Date, or the time of payment of interest on or
principal of, or the principal amount of any Loan, or the time of payment of any
fees hereunder, (iii) decreasing the rate of interest on or the amount of any
fees hereunder; or (iv) modifying this paragraph 13 or the definition of
"Majority Banks". 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.
2. OTHER PROVISIONS.14 OTHER PROVISIONS
-----------------
1.2 NO WAIVER OF RIGHTS BY THE BANKS.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.
1.2 HEADINGS; PLURALS.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.
1.2 COUNTERPARTS.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.
1.2 SEVERABILITY.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.
1.2 INTEGRATION.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.
1.2 SALES AND PARTICIPATIONS IN LOANS AND NOTES; SUCCESSORS AND ASSIGNS,
---------------------------------------------------------------------------
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.14.6 SALES AND PARTICIPATIONS IN
-----------------------------------------
LOANS AND NOTES, SUCCESSORS AND ASSIGNS, SURVIVAL OF REPRESENTATIONS AND
WARRANTIES
(f) Each Bank shall have the right with the prior written consent of the
Company (which consent shall not be unreasonably withheld or delayed), provided,
however, that no such consent shall be required after and during the continuance
of an Event of Default, 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, unless it is such Bank's entire Commitment) 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, the
Notes, or interests in respect of Letters of Credit 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 or
interests in respect of Letters of Credit, 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 (y) the obligation to fund
Loans directly to the Agent pursuant to paragraph 2.3; and (z) obligations in
respect of Letters of Credit under paragraph 2.2.
(f) Notwithstanding paragraph 14.6(a), each Bank may grant participations in
all or any part of its Loans, Notes, and interests in respect of Letters of
Credit 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, Notes, interests in respect of Letters
of Credit 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 or interests in
respect of Letters of Credit.
(f) 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 or interests in respect of Letters of Credit 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 or interests in respect of Letters
of Credit 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
or interests in respect of Letters of Credit so assigned, for purposes hereof,
including, without limitation, paragraphs 3.1 and 12 hereof.
(f) In addition, notwithstanding anything to the contrary contained in this
paragraph 14.6, any Bank may at any time and from time to time pledge or assign
all or any portion of its rights under this Agreement with respect to its Loans,
its Commitments, interests in respect of Letters of Credit and its Notes to any
of the twelve (12) Federal Reserve Banks. No such pledge or assignment or
enforcement thereof shall release the assignor Bank from its obligations
hereunder.
(f) 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 or interests in respect of Letters of Credit and the Notes of
such Bank or other obligations owed to such Bank.
(f) 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.
(f) 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, Notes, and interests in respect of Letters of Credit 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 Three Thousand Five Hundred Dollars
($3,500).
1.2 APPLICABLE LAW.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.
1.2 INTEREST. 14.8 INTEREST At no time shall the interest rate payable on the
--------
Loans and Notes, together with the Facility Fee, the Closing Fee, the Usage Fee,
the Agent's Fees, the Fronting Fee and any other fee in connection with the
Letters of Credit, and all other fees and amounts payable hereunder, 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 Loans and 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 Loans and 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.
1.2 ACCOUNTING TERMS AND PRINCIPLES.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.
1.2 WAIVER OF TRIAL BY JURY.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.
1.2 CONSENT TO JURISDICTION.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.
1.2 SERVICE OF PROCESS.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.
1.2 NO LIMITATION ON SERVICE OR SUIT14.13 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.
2. OTHER OBLIGATIONS OF THE COMPANY.15 OTHER OBLIGATIONS OF THE COMPANY
----------------------------------------
1.2 TAXES AND FEES.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.
1.2 EXPENSES15.2 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, 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.
1.2 INDEMNIFICATION15.3 INDEMNIFICATION.
---------------
The Company shall indemnify, defend, and hold the Banks and Agent and any
of their respective employees, officers, or agents (each, an "Indemnified
Person") harmless of and from any claim brought or threatened against any
Indemnified Person by the Company, any guarantor or endorser of the liabilities
obligations of the Company hereunder or under the Notes, or any other Person (as
well as from attorneys' reasonable fees, expenses, and disbursements in
connection therewith) on account of the relationship of the Company or of any
other guarantor or endorser of the liabilities and obligations of the Company
hereunder or under the Notes (each of claims which may be defended, compromised,
settled, or pursued by the Indemnified Person with counsel of the Banks' or
Agent's selection, but at the expense of the Company) other than any claim as to
which a final determination is made in a judicial proceeding (in which the Banks
or Agent and any other Indemnified Person has had an opportunity to be heard),
which determination includes a specific finding that the Indemnified Person
seeking indemnification had acted in a grossly negligent manner or in actual bad
faith. This indemnification shall survive payment of the liabilities and
obligations of the Company hereunder or under the Notes and/or any termination,
release, or discharge executed by the Banks or Agent in favor of the Company,
other than a termination, release, or discharge duly executed on behalf of the
Banks or Agent which makes specific reference to this Section 15.3.
1.2 LOST NOTES. 15.4 LOST NOTES Upon receipt of an affidavit of an
-----------
officer of any Bank as to the loss, theft, destruction or mutilation of any Note
and, in the case of any such loss, theft, destruction or mutilation, upon
cancellation of such Note or other security document, Company will issue, in
lieu thereof, a replacement note in the same principal amount thereof and
otherwise of like tenor.
1.2 TRANSITIONAL ARRANGEMENTS15.5 TRANSITIONAL ARRANGEMENTS. This Agreement,
--------------------------
upon the satisfaction of each of the conditions set forth in Sections 5 and 6
shall amend, replace and supercede the Credit Agreement, provided that each of
the obligations and liabilities outstanding under the Credit Agreement shall
become obligations and liabilities under this Agreement and all interest, fees
and charges payable under the Credit Agreement shall continue in effect and be
payable as provided under this Agreement subject to any change or modification
thereto that is provided in this Agreement.
2. EFFECTIVE DATE.16 EFFECTIVE DATE This Agreement shall be effective as an
instrument under seal as of the date first set forth above (the "Effective
Date").
[THE REMAINDER OF THIS PAGE IS 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/Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
FLEET NATIONAL BANK,
Individually and as agent
Domestic Lending Office:
Office listed in paragraph 11.1
By: Xxxxxxx X. Xxxx, Xx.
LIBOR Lending Office: Title: Managing Director
Office listed in paragraph 11.1
SOVEREIGN BANK
Domestic Lending Office
Office listed in paragraph 11.1
By: /s/Xxxxxx X. Xxxxxxx
LIBOR Lending Office Title: Senior Vice President
Office listed in paragraph 11.1
EXHIBIT A
---------
REVOLVING CREDIT COMMITMENTSEXHIBIT A - REVOLVING CREDIT COMMITMENTS
----------------------------
Bank Revolving Credit Commitment Revolving Credit Commitment Percentage
--------------------------------------
Fleet National Bank $19,500,000 65%
------------------- ----------- ---
Sovereign Bank $10,500,000 35%
-------------- ----------- ---
Aggregate Revolving Credit Commitments $30,000,000 100%
-------------------------------------- ----------- ----
EXHIBIT BEXHIBIT B - PRICING GRID/FACILITY FEE
---------
PRICING GRID/FACILITY FEE
SCHEDULE ISCHEDULE I
----------
Green Mountain Power Corporation Loan Pricing Grid*
Senior Secured Applicable
Pricing Level Rating Margin**
80.0
I Greater than or=BBB+/Baal
100.0
II = BBB/Baa2
III =BBB-/Baa3 137.5
Less than BBB-/Baa3 175.0
IV (or no Debt Rating)
For purposes of the foregoing, following the conversion of any Revolving Credit
Loan to a Term Loan in accordance with paragraph 2.16, the Applicable Margin set
forth in the table above shall be increased by 25.0 basis points at all levels.
* The applicable pricing level is based upon the Debt Rating.
** Expressed as basis points.
SCHEDULE IISCHEDULE II
-----------
Green Mountain Power Corporation Facility Fee Grid***
Senior Secured
Pricing Level Rating Facility Fee****
15.0
I Greater than or=BBB+/Baal
17.5
II = BBB/Baa2
25.0
III =BBB-/Baa3
Less than BBB-/Baa3
(or no Debt Rating) 50.0
IV
For purposes of the foregoing, following the conversion of any Revolving Credit
Loan to a Term Loan in accordance with paragraph 2.16, the Facility Fee set
forth in the table above shall be increased by 25.0 basis points at all levels.
*** Based upon the Debt Rating.
**** Expressed in basis points.
EXHIBIT CEXHIBIT C - FORM OF BORROWING REQUEST
---------
FORM OF BORROWING REQUEST
-------------------------
___________, _____
Fleet National Bank
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Re: Fourth Amended and Restated Credit Agreement dated as of June 16, 2004, as
further amended from time to time, by and among Green Mountain Power
Corporation, the signatory Banks thereto and Fleet National Bank, as Agent (the
"Agreement")
Capitalized terms herein which are defined in the Agreement shall have the
meanings therein defined.
Pursuant to paragraph 2.1 of the Agreement, the Company hereby gives notice
of its intention to effect a Borrowing as a Revolving Credit Loan in the amount
of $______ on ______, _____.
Pursuant to paragraph 2.3 of the Agreement, the Company has elected to have
the following portions of such Borrowing be subject to the Type and Interest
Period(s) set forth below:
Interest
Type Amount Period
---- ------ ------
1.
2.
3.
4.
5.
The Company hereby certifies that on the date hereof and on the Borrowing
Date set forth above, and after giving effect to the Loans to be made on such
Borrowing Date:
(a) The Company is and shall be in compliance with all the terms,
covenants and conditions of the Agreement.
(b) There exists and there shall exist no Event of Default under the
Agreement.
(c) The Company represents and warrants that each of the material
representations and warranties contained in the Agreement is and shall be true
and correct in all material respects with the same force and effect as if made
on and as of the date hereof and as of the Borrowing Date, except such
representations and warranties as specifically refer to an earlier date; and
(d) 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 events and failures, a Material Adverse Effect since the date of the last
Borrowing Date.
The Company hereby certifies that on the date hereof the Debt Rating of the
Company is ____ according to Standard & Poor's Corporation and ______ according
to Xxxxx'x Investor Service.
The undersigned hereby certifies that he/she is the chief financial officer
of the Company.
IN WITNESS WHEREOF, the undersigned has caused this Borrowing Request and
certification to be executed as of the date and year first above written.
GREEN MOUNTAIN POWER CORPORATION
By: /s/Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
EXHIBIT DEXHIBIT D - FORM OF REVOLVING CREDIT NOTES
---------
[FORM OF REVOLVING CREDIT NOTES]
--------------------------------
REVOLVING CREDIT NOTE
---------------------
([NAME OF BANK])
----------------
Boston, Massachusetts
$________________ June 16, 2004
For value received, GREEN MOUNTAIN POWER CORPORATION, a Vermont corporation
("Company"), hereby promises to pay to the order
of__________________________________ (the "Bank") at the offices of FLEET
NATIONAL BANK (the "Agent"), 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, in
lawful money of the United Sates of America, the principal amount of each
Revolving Credit Loan made by the Bank to the Company pursuant to the Fourth
Amended and Restated Credit Agreement, dated as of June 16, 2004, by and among
the Company, the signatory Banks thereto and the Agent (as the same may be
further amended from time to time the "Agreement"), on the Revolving Credit
Termination Date, together with interest on the unpaid principal amount of each
Revolving Credit Loan, from the date of each Revolving Credit Loan until such
principal amount is paid in full, at such interest rates, and payable at such
times, as is provided or determined under the Agreement. In no event shall the
interest rate payable hereon exceed the maximum rate of interest permitted by
law. Capitalized terms used herein which are defined in the Agreement shall have
the meanings therein defined.
The principal amount of each Revolving Credit Loan made by the Bank to the
Company, and all prepayments made on account of such principal, by the Company
shall be recorded by the Bank on the schedule attached hereto. The aggregate
unpaid principal balance of all Loans made by the Bank and set forth in such
schedule shall be presumptive evidence of the principal balance owing and unpaid
on this Revolving Credit Note. The Bank may attach one or more continuations to
such schedule as and when required.
This note is one of the Revolving Credit Notes referred to in the Agreement and
is entitled to the benefits of, and is subject to the terms, set forth in the
Agreement. The principal of this note is prepayable in the amounts and under
the circumstances, and its maturity is subject to acceleration upon the terms,
set forth in the Agreement. All payments on this note shall be made in funds
immediately available in Boston, Massachusetts, by 12:00 noon, Boston time, on
the due date for such payment. Except as otherwise expressly provided in the
Agreement, if any payment on this note becomes due and payable on a day which is
not a Business Day, the maturity thereof shall be extended to the next Business
Day and interest shall be payable at the rate or rates specified in the
Agreement during such extension period.
Presentment for payment, demand, notice of dishonor, protest, notice of protest
and all other demands and notices in connection with the delivery, performance
and enforcement of this Note are hereby waived, except as specifically otherwise
provided in paragraph 9 of the Agreement.
This note is being delivered under seal in, is intended to be performed in,
shall be construed and enforceable in accordance with, and be governed by the
internal laws of, the Commonwealth of Massachusetts without regard to principles
of conflict of laws.
This note may be amended only an instrument in writing executed pursuant to the
provisions of paragraph 13 of the Agreement.
GREEN MOUNTAIN POWER CORPORATION
By: ______________________________________
Title: _____________________________________
GRIDGRID - REVOLVING CREDIT NOTE
----
REVOLVING CREDIT NOTE
---------------------
Amount of Notation
Date Amount of Loan Principal Repaid Made By
---- ---------------- ----------------- --------
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
EXHIBIT EEXHIBIT E - FORM OF CONVERSION/CONTINUATION REQUEST
---------
FORM OF CONVERSION/CONTINUATION REQUEST
---------------------------------------
Fleet National Bank
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Re: Fourth Amended and Restated Credit Agreement dated as of June 16, 2004, as
further amended from time to time, by and among Green Mountain Power
Corporation, the signatory Banks thereto and Fleet National Bank, as Agent (the
"Agreement")
Capitalized terms herein which are defined in the Agreement shall have the
meanings therein defined.
Pursuant to paragraph 2.7 of the Agreement, the Company hereby gives notice
of its intention to effect a [EITHER:] [continuation][conversion] of a Borrowing
under paragraph 2.1 (Revolving Credit Loans) as [EITHER:] [a LIBOR Loan][an
Alternate Base Rate Loan] in the amount of $______ on ______, _____.
Pursuant to paragraph 2.3 of the Agreement, the Company has elected to have
the following portions of such Borrowing be subject to the Type and Interest
Period(s) set forth below:
Interest
Loan Type Amount Period
---- ---- ------ ------
1.
2.
3.
4.
5.
The Company hereby certifies that on the date hereof and on the date of
conversion/continuation set forth above, and after giving effect to the Loans to
be converted and/or continued:
(a) The Company is and shall be in compliance with all the terms,
covenants and conditions of the Agreement.
(b) There exists and there shall exist no Event of Default under the
Agreement.
(c) The Company represents and warrants that each of the material
representations and warranties contained in the Agreement is and shall be true
and correct in all material respects with the same force and effect as if made
on and as of the date hereof and as of the Borrowing Date, except such
representations and warranties as specifically refer to an earlier date;
(d) 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 events and failures, a Material Adverse Effect since the date of the last
Borrowing Date; and
(e) In the reasonable opinion of the undersigned, there is no event that
is likely to occur or is likely to fail to occur, which would have or would
reasonably be expected to have, either alone or in conjunction with all other
such events and failures as have occurred or are likely to occur, a Material
Adverse Effect.
The Company hereby certifies that on the date hereof the Debt Rating of the
Company is ____ according to Standard & Poor's Corporation and ______ according
to Xxxxx'x Investor Service.
The undersigned hereby certifies that he/she is the chief financial officer
of the Company.
IN WITNESS WHEREOF, the undersigned has caused this Notice of
Conversion/Continuation and certification to be executed as of the date and year
first above written.
GREEN MOUNTAIN POWER CORPORATION
By: ______________________________
Title: Chief Financial Officer
EXHIBIT FEXHIBIT F - SUBSIDIARIES
---------
SUBSIDIARIES
------------
Name of Subsidiary State of Incorporation
-------------------- ------------------------
Green Mountain Power Investment Company Vermont
GMP Real Estate Corporation Vermont
Northern Water Resources, Inc.
(formerly Mountain Energy, Inc.) Vermont
Vermont Energy Resources, Inc. Vermont
EXHIBIT GEXHIBIT G - FORM OF OPINION OF COUNSEL TO COMPANY
---------
FORM OF OPINION OF COUNSEL TO COMPANY
-------------------------------------
June 16, 2004
TO: THE PARTIES LISTED IN SCHEDULE A ATTACHED HERETO
RE: Fourth Amended and Restated Credit Agreement, dated as of June 16,
2004, by and among Green Mountain Power Corporation, the signatory Banks thereto
and Fleet National Bank, as Agent (the "Credit Agreement")
Gentlemen:
We have acted as counsel to Green Mountain Power Corporation, a Vermont
corporation (the "Company"), in connection with the authorization, execution and
delivery by the Company of the Credit Agreement.
This opinion is delivered to you pursuant to Section 5.4 of the Credit Agreement
and the terms used herein which are defined in the Credit Agreement shall have
the respective meanings set forth in the Credit Agreement, unless otherwise
defined herein.
In connection with this opinion, we have examined and are familiar with
originals or copies authenticated to our satisfaction of the Credit Agreement
and the Revolving Credit Notes, each as executed and delivered by the Company,
together with such corporate documents and records of the Company, certificates
of public officials and officers of the Company and such other documents as we
deemed necessary or appropriate for the purposes of this opinion.
As to questions of fact relevant to the opinions expressed herein, we have
relied upon all of the foregoing, and have assumed the accuracy of
representations and warranties made to you by the Company in the Credit
Agreement and the Loan Documents, and statements and certificates of the Company
and its officers and directors made or delivered to you or to us.
Whenever we have indicated that an opinion stated herein is based on our
knowledge, it is intended to signify that during the course of our
representation as herein described, no information has come to our attention
after due inquiry which would give us actual knowledge of the existence or
absence of facts which would require an opinion other than that stated herein.
For the purposes of this opinion, we have assumed that all items submitted to us
as originals are authentic and all signatures thereon are genuine, all items
submitted to us as copies conform to the originals, and each such item has been
duly executed and delivered by each party, other than the Company, pursuant to
due authorization and is such party's legal, valid and binding obligation,
enforceable against such party in accordance with its respective terms. We have
also assumed that the records examined are currently and correctly indexed and
that all oral statements made to us by governmental officials with respect to
the content of public records were correct and complete.
We are attorneys admitted to practice in the State of Vermont, and we express no
opinion as to any laws other than the federal laws of the United States and the
laws of the State of Vermont. The Credit Agreement provides that it is to be
construed in accordance with and governed by the internal laws of the
Commonwealth of Massachusetts. With respect to such matters as to which the law
of the Commonwealth of Massachusetts may apply (including, without limitation,
Paragraph 10 hereof), at your request and with your permission, we have assumed
that the laws of the Commonwealth of Massachusetts are the same as the laws of
the State of Vermont.
Based upon and relying solely upon the foregoing, subject to the comments and
qualifications herein expressed and limited in all respects to the laws of the
State of Vermont and the United States, we are of the opinion that:
1. The Company (a) is a corporation duly organized, validly existing and in
good standing under the laws of the State of Vermont and (b) has all requisite
corporate power and authority to own its Property and to carry on its business
as now conducted. The Company and each subsidiary is duly qualified to do
business in each jurisdiction in which the failure to so qualify could have a
Material Adverse Effect on the Company and its Subsidiaries on a Consolidated
basis.
2. The Company has full corporate power and authority to enter into,
execute, deliver and carry out the terms of the Credit Agreement and to make the
borrowings contemplated thereby, and to execute, deliver and carry out the terms
of the Revolving Credit Notes and to incur the obligations provided for therein
and in the Credit Agreement, all of which have been duly authorized by all
proper or necessary corporate action on its part and are in full compliance with
its Articles of Incorporation 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, the
Credit Agreement or the Revolving Credit Notes, or is required as a condition to
the validity or enforceability of the Credit Agreement or the Revolving Credit
Notes, except that, as noted in the Credit Agreement, based on the laws and
regulations currently in effect, the Company may be required to obtain the
consent of the VPSB (or a determination by the VPSB that such consent is not
required) for the conversion of the Revolving Credit Loans into the Term Loans
as contemplated by the Credit Agreement
3. The Credit Agreement and the Revolving Credit Notes constitute the valid and
legally binding obligations of the Company enforceable against the Company in
accordance with their respective terms, except as enforceability may be limited
by equitable principles (regardless whether such enforceability is considered in
a proceeding in equity or in an action at law) and by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights of
creditors generally.
4. To the best of our knowledge, after due inquiry, except for the matters set
forth in the Designated Documents, there are no actions, suits or arbitration
proceedings (whether or not purportedly on behalf of or against the Company or
any Subsidiary) pending or, to the best of our knowledge after due inquiry,
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 could result in a Material
Adverse Change in the Company and its Subsidiaries on a Consolidated basis,
after giving effect to reserves reflected in the Financial Statements or the
footnotes thereto. To the best of our knowledge, after due inquiry, there are
no proceedings pending or, to the best of our knowledge, after due inquiry,
threatened against the Company or any Subsidiary which call into question the
validity or enforceability of the Credit Agreement or the Revolving Credit
Notes.
5. To the best of our knowledge, after due inquiry, neither the Company nor any
Subsidiary is 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 could have a Material
Adverse Effect on the Company and its Subsidiaries on a Consolidated basis. No
provision of the Articles of Incorporation or By-Laws, and no provision of the
Indenture of First Mortgage and Deed of Trust dated as of February 1, 1955,
executed by the Company and the Chase National Bank of the City of New York, as
amended to date (the "Indenture of First Mortgage"), statute (including, without
limitation, any applicable usury or similar law), law, rule or regulation, and
to the best of our knowledge, after due inquiry, no provision of any existing
mortgage, indenture, contract, agreement, 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 the Credit Agreement or the Revolving Credit
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 of the Credit Agreement upon the Property of the
Company or any Subsidiary pursuant to the terms of any such mortgage, indenture,
contract or agreement. With respect to the foregoing opinion, as it relates to
the Indenture of First Mortgage, we have relied with your permission upon the
opinion of Hunton & Xxxxxxxx, special counsel to the Company, a copy of which is
attached hereto as Exhibit A.
6. To the best of our knowledge, after due inquiry, 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 could have a Material Adverse Effect on
the financial condition, property, prospects or operations of the Company and
its Subsidiaries on a Consolidated basis. To the best of our knowledge, after
due inquiry, 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, a violation of which could have a Material
Adverse Effect on the financial condition, Property, prospects or operations of
the Company and each Subsidiary on a Consolidated basis.
7. The Company is not an "Investment Company" as such term is defined in
the Investment Company Act of 1940, as amended.
8. 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. If used in accordance with
paragraph 2.13 of the Credit Agreement, 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 T, U and X of
the Board of Governors of the Federal Reserve System, as amended, or (iv) for a
purpose which violates any other law, rule or regulation of any Governmental
Body.
9. 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 are 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). With
respect to the foregoing opinion, we have relied with your permission upon the
opinion of Hunton & Xxxxxxxx, special counsel to the Company, a copy of which is
attached hereto as Exhibit A.
10. A Massachusetts court of competent jurisdiction, in a properly presented
case, should uphold and give effect to the provisions in the Credit Agreement
and the Revolving Credit Notes expressing the contractual choice of the parties
thereto that such documents be construed in accordance with the laws of the
Commonwealth of Massachusetts.
Notwithstanding the foregoing, we express no opinion about (a) the
enforceability of the provisions in the Credit Agreement and in any other Loan
Document constituting a purported waiver of the right to trial by jury, (b) the
enforceability of the provision in the Credit Agreement constituting a purported
submission to the jurisdiction of any court of the Commonwealth of Massachusetts
or any federal court sitting in the Commonwealth of Massachusetts, or (c) the
enforceability of the provision in the Credit Agreement constituting a purported
authorization of service of process by mail.
These opinions are rendered solely for your use or the use of your successors
and assigns in connection with the Credit Agreement and may not be used for any
other purpose or reproduced without our prior written consent.
Very truly yours,
SCHEDULE A
----------
1. Fleet National Bank
2. Sovereign Bank
HUNTON & XXXXXXXX LLP
000 XXXX XXXXXX
XXX XXXX, XXX XXXX 00000-0000
TEL 000-000-0000
FAX 000-000-0000
XXXXXX X. XXXXXX
DIRECT DIAL: 000-000-0000
EMAIL: xxxxxxx@xxxxxx.xxx
FILE NO: 35422.000001
June 16, 2004
Green Mountain Power Corporation
000 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxxxx Xxxxxxx & Xxxx X.X.
Xxxxxxx Xxxxxx
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Re: Green Mountain Power Corporation
Dear Sirs:
You have requested our opinion with respect to (i) the status of Green
Mountain Power Corporation, a Vermont corporation, and its subsidiaries (the
"Company") under the Public Utility Holding Company Act of 1935, as amended (the
"Holding Company Act") and (ii) certain matters relating to the Company's
Indenture of First Mortgage and Deed of Trust, dated as of February 1, 1955, as
supplemented and modified by seventeen supplemental indentures (collectively,
the "Indenture") in connection with that Fourth Amended and Restated Credit
Agreement, dated as of June 16, 2004 (as amended, the "Agreement"), by and among
the Company, the Banks signatory thereto and Fleet National Bank, as agent, and
the revolving credit notes being issued by the Company pursuant thereto (the
"Revolving Credit Notes").
In connection therewith, we have examined the Indenture, the statement
filed by the Company each year on Form U-3A2 under the Holding Company Act, the
Restated Articles of Association of the Company, as amended, its by-laws, as
amended, and such other certificates and other documents and matters of law we
have deemed necessary to enable us to render the opinion herein expressed.
Based on the foregoing, we are of the opinion that:
1. The Company is a public utility company under the Holding Company Act, and
each of its subsidiaries is a subsidiary of a holding company under the Holding
Company Act. The Company, including such subsidiaries, has filed an exemption
statement under Section 3(a)(2) of the Holding Company Act and is exempt from
the provisions of the Holding Company Act, except Section 9(a)(2) thereof (which
prohibits the acquisition of securities of certain other utility companies
without the approval of the Securities and Exchange Commission).
2. No provision of the Indenture could in any way prevent the execution,
delivery or carrying out of the terms of the Agreement and the Revolving Credit
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 on
the property mortgaged under the Indenture.
We are members of the bar of the State of New York and express no opinion
herein with respect to any laws other than the Holding Company Act (in the case
of the opinion rendered in paragraph 1 hereof) and the laws of the State of New
York and the United States of America (in the case of the opinion rendered in
paragraph 2 hereof). This opinion may not be delivered to or relied upon any
person other than the addressees hereof, except that we understand that Xxxxxxx
Xxxxxxx & Xxxx P.C. will rely on this opinion for the purpose of rendering its
opinion to Fleet National Bank and Sovereign Bank in connection with financing
to be obtained by the Company, and such reliance is hereby expressly permitted,
and a copy of this opinion may be delivered to Fleet National Bank and Sovereign
Bank National Association.
Very truly yours,
Xxxxxx X. Xxxxxx
EXHIBIT HEXHIBIT H - FORM OF TERM NOTES
---------
[FORM OF TERM NOTES]
--------------------
TERM NOTE
---------
([NAME OF BANK])
----------------
Boston, Massachusetts
$________________ June 15, 2005
For value received, GREEN MOUNTAIN POWER CORPORATION, a Vermont corporation
("Company"), hereby promises to pay to the order
of__________________________________ (the "Bank") at the offices of FLEET
NATIONAL BANK (the "Agent"), 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, in
lawful money of the United Sates of America, the principal amount of
$___________________ or, if less, the aggregate unpaid principal amount of the
Term Loans made by the Bank to the Company pursuant to the Fourth Amended and
Restated Credit Agreement, dated as of June 16, 2004, by and among the Company,
the signatory Banks thereto and the Agent (as the same may be further amended
from time to time the "Agreement"), on the Maturity Date, together with interest
on the unpaid principal amount of each Term Loan, from the date of the Term Loan
Conversion Date until such principal amount is paid in full, at such interest
rates, and payable at such times, as is provided or determined under the
Agreement. In no event shall the interest rate payable hereon exceed the maximum
rate of interest permitted by law. Capitalized terms used herein which are
defined in the Agreement shall have the meanings therein defined.
The principal amount of each Term Loan made by the Bank to the Company, and
all prepayments made on account of such principal, by the Company shall be
recorded by the Bank on the schedule attached hereto. The aggregate unpaid
principal balance of all Loans made by the Bank and set forth in such schedule
shall be presumptive evidence of the principal balance owing and unpaid on this
Term Note. The Bank may attach one or more continuations to such schedule as and
when required.
This note is one of the Term Notes referred to in the Agreement and is entitled
to the benefits of, and is subject to the terms, set forth in the Agreement.
The principal of this note is prepayable in the amounts and under the
circumstances, and its maturity is subject to acceleration upon the terms, set
forth in the Agreement. All payments on this note shall be made in funds
immediately available in Boston, Massachusetts, by 12:00 noon, Boston time, on
the due date for such payment. Except as otherwise expressly provided in the
Agreement, if any payment on this note becomes due and payable on a day which is
not a Business Day, the maturity thereof shall be extended to the next Business
Day and interest shall be payable at the rate or rates specified in the
Agreement during such extension period.
Presentment for payment, demand, notice of dishonor, protest, notice of protest
and all other demands and notices in connection with the delivery, performance
and enforcement of this Note are hereby waived, except as specifically otherwise
provided in paragraph 9 of the Agreement.
This note is being delivered under seal in, is intended to be performed in,
shall be construed and enforceable in accordance with, and be governed by the
internal laws of, the Commonwealth of Massachusetts without regard to principles
of conflict of laws.
This note may be amended only an instrument in writing executed pursuant to the
provisions of paragraph 13 of the Agreement.
GREEN MOUNTAIN POWER CORPORATION
By: ______________________________________
Title: _____________________________________
GRIDGRID - TERM NOTE
----
TERM NOTE
---------
Amount of Notation
Date Amount of Loan Principal Repaid Made By
---- ---------------- ----------------- --------
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
EXHIBIT IEXHIBIT I - FORM OF TERM LOAN REQUEST
---------
FORM OF TERM LOAN REQUEST
-------------------------
Fleet National Bank
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Re: Fourth Amended and Restated Credit Agreement dated as of June 16, 2004, as
further amended from time to time, by and among Green Mountain Power
Corporation, the signatory Banks thereto and Fleet National Bank, as Agent (the
"Agreement")
Capitalized terms herein which are defined in the Agreement shall have the
meanings therein defined.
Pursuant to paragraph 2.16 of the Agreement, the Company hereby requests
that you convert the aggregate outstanding principal of the Revolving Credit
Loans in the amount of $______________ into Term Loans on June 15, 2005 (the
"Term Loan Conversion Date"), such amount to bear interest based on the
[Alternate Base Rate][LIBOR Rate] for a period of [Insert Duration of Interest
Period].
The Company hereby certifies that on the date hereof and on the Term Loan
Conversion Date, and after giving effect to the Loans to be converted and/or
continued:
(a) The Company is and shall be in compliance with all the terms,
covenants and conditions of the Agreement.
(b) There exists and there shall exist no Event of Default under the
Agreement.
(c) The Company represents and warrants that each of the material
representations and warranties contained in the Agreement is and shall be true
and correct in all material respects with the same force and effect as if made
on and as of the date hereof and as of the Borrowing Date, except such
representations and warranties as specifically refer to an earlier date;
(d) 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 events and failures, a Material Adverse Effect since the date of the last
Borrowing Date;
(e) In the reasonable opinion of the undersigned, there is no event that
is likely to occur or is likely to fail to occur, which would have or would
reasonably be expected to have, either alone or in conjunction with all other
such events and failures as have occurred or are likely to occur, a Material
Adverse Effect; and
(f) The VPSB has approved the occurrence of the Term Loan Conversion Date,
or has determined that its consent is not required. A copy of such approval or
determination is attached hereto.
The Company hereby certifies that on the date hereof the Debt Rating of
the Company is ____ according to Standard & Poor's Corporation and ______
according to Xxxxx'x Investor Service.
The undersigned hereby certifies that he/she is the chief financial
officer of the Company.
IN WITNESS WHEREOF, the undersigned has caused this Notice of
Conversion/Continuation and certification to be executed as of the date and year
first above written.
GREEN MOUNTAIN POWER CORPORATION
By: ______________________________
Title: Chief Financial Officer
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