EXHIBIT 10.12
AMENDMENT AGREEMENT
This AMENDMENT AGREEMENT (the "Agreement") dated as of this 24th day
of April, 1998, by and among PENNICHUCK CORPORATION, a New Hampshire
corporation with a principal place of business at 0 Xxxxx Xxxxxx, X.X. Xxx
000, Xxxxxx, Xxx Xxxxxxxxx 00000-0000 ("PC") and PENNICHUCK EAST UTILITY,
INC., a New Hampshire corporation with a principal place of business at 0
Xxxxx Xxxxxx, X.X. Xxx 000, Xxxxxx, Xxx Xxxxxxxxx 00000-0000 ("PEU") (PC and
PEU are referred to individually and collectively as the "Borrower"), THE
SOUTHWOOD CORPORATION, a New Hampshire corporation with a principal place of
business at 0 Xxxxx Xxxxxx, X.X. Xxx 000, Xxxxxx, Xxx Xxxxxxxxx 00000-0000
("Southwood") and PENNICHUCK WATER SERVICE CORPORATION, a New Hampshire
corporation with a principal place of business at 0 Xxxxx Xxxxxx, X.X. Xxx
000, Xxxxxx, Xxx Xxxxxxxxx 00000-0000 ("PWSC") (Southwood and PWSC are
referred to individually and collectively at "Guarantor") and FLEET BANK-NH,
a bank incorporated under the laws of the State of New Hampshire with a
principal place of business at 0000 Xxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxxxxx
00000 (the "Bank").
W I T N E S S E T H
WHEREAS, pursuant to the terms of a certain Loan Agreement dated April
8, 1998 (collectively, the "Loan Agreement") and certain loan documents
referenced therein or contemplated thereby (collectively the "Loan
Documents"), the Bank has made certain loans, including, without limitation,
a $4,500,000 acquisition line of credit loan to the Borrower (the
"Acquisition Line of Credit") and a $3,000,000 line of credit loan to PC
(the "Line of Credit"), both of which loans are guaranteed by the Guarantor;
and
WHEREAS, PC has requested and the Bank has agreed to, among other
things, (i) increase the principal amount of the Line of Credit from
$3,000,000 to $4,500,000 and (ii) amend the Loan Documents in certain other
respects.
NOW, THEREFORE, in consideration of the foregoing and mutual covenants
and agreements therein contained, the receipt and adequacy of which are
hereby acknowledged, the parties covenant, stipulate, and agree as follows:
1. Representations and Warranties of the Borrower and the
Guarantor. The Borrower and Guarantor represent and warrant to the Bank as
follows:
(a) The representations and warranties of each Borrower and each
Guarantor made in the Loan Documents remain true and accurate
and are hereby reaffirmed as of the date hereof.
(b) The Borrower and the Guarantor have performed, in all material
respects, all obligations to be performed by each of them to
date under the Loan Documents.
(c) Each Borrower and Guarantor is a corporation duly organized,
qualified, and existing in good standing under the laws of the
State of New Hampshire and in all other jurisdictions in which
the character of the property owned or the nature of the
existing business conducted by such Borrower or Guarantor
require its qualification as a foreign corporation.
(d) The execution, delivery, and performance of this Agreement and
the documents relating hereto (the "Amendment Documents") are
within the power of each Borrower and each Guarantor and are
not in contravention of law, each Borrower's or Guarantor's
Articles of Incorporation, By-Laws, or the terms of any other
documents, agreements, or undertaking to which any Borrower or
any Guarantor is a party or by which any Borrower or any
Guarantor is bound. No approval of any person, corporation,
governmental body, or other entity not provided herewith is a
prerequisite to the execution, delivery, and performance by any
Borrower or any Guarantor of the Amendment Documents or any of
the documents submitted to the Bank in connection with the
Amendment Documents to ensure the validity or enforceability
thereof.
(e) When executed on behalf of the Borrower and the Guarantor, the
Amendment Documents will constitute a legally binding
obligation of the Borrower and the Guarantor, enforceable in
accordance with their terms; provided, that the enforceability
of any provisions in the Amendment Documents, or of any rights
granted to the Bank pursuant thereto may be subject to and
affected by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally and that the right of the Bank to specifically
enforce any provisions of the Amendment Documents is subject to
general principles of equity.
2. Amendment To Loan Agreement. The Loan Agreement shall be
amended as follows:
(a) The first WHEREAS clause appearing on page one of the Loan
Agreement is hereby amended by changing the amount "Three
Million Dollars ($3,000,000)" to "Four Million Five Hundred
Thousand Dollars ($4,500,000)".
(b) Section 2.2 of Article II of the Loan Agreement is hereby
amended by changing the amount "Three Million Dollars
($3,000,000)" to "Four Million Five Hundred Thousand Dollars
($4,500,000)".
(c) Section 2.5 of Article II of the Loan Agreement is hereby
amended by deleting the phrase "for a two (2) year period with
respect to up to One Million Five Hundred Thousand Dollars
($1,500,000)" appearing in the ninth and tenth lines thereof
and replacing it with "for a two (2) year period with respect
to Three Million Dollars ($3,000,000)".
(d) Section 2.6 of Article II of the Loan Agreement is hereby
amended by replacing the amount of "One Million Five Hundred
Thousand Dollars ($1,500,000)" appearing in the sixth and
seventh lines thereof and replacing it with "Three Million
Dollars ($3,000,000)".
3. Amendment to Promissory Note. The Promissory Note made payable
by PC to the Bank dated April 8, 1998 (the "Line of Credit Note") in the
original principal amount of $3,000,000, is hereby amended as follows:
(a) The amount "$3,000,000" appearing in the upper left hand corner
of page one of the Line of Credit Note is hereby deleted and
replaced with "$4,500,000".
(b) The amount of "Three Million Dollars ($3,000,000)" appearing in
the eighth and ninth lines of the first paragraph of the Line
of Credit Note is hereby deleted and replaced with "Four
Million Five Hundred Thousand Dollars ($4,500,000)".
(c) The amount "One Million Five Hundred Thousand Dollars
($1,500,000)" appearing in paragraph (2) on page one of the
Line of Credit Note is hereby deleted and replaced with "Three
Million Dollars ($3,000,000)".
(d) The amount "Three Million Dollars ($3,000,000)" appearing in
the first sentence of the first full paragraph on page two of
the Line of Credit Note is hereby deleted and replaced with
"Four Million Five Hundred Thousand Dollars ($4,500,000)".
4. Amendment to Pledge Agreement. The Pledge Agreement by PC to
the Bank dated April 8, 1998 (the "Pledge Agreement") is hereby amended by
deleting the amount "Seven Million Five Hundred Thousand Dollars
($7,500,000)" appearing in the first WHEREAS clause on page one of the
Pledge Agreement and replacing such amount with "Nine Million Dollars
($9,000,000)". PC hereby ratifies and confirms its pledge under the Pledge
Agreement and acknowledges that all amounts advanced under the Loan
Documents to date and in the future, including, but not limited to, all
amounts advanced under the Line of Credit, as amended, shall be Secured
Obligations (as such term is defined in the Pledge Agreement).
5. Amendment to Guaranty Agreement. The Guaranty Agreement by the
Guarantor to the Bank dated April 8, 1998 (the "Guaranty Agreement") is
hereby amended by deleting the amount "Three Million Dollars ($3,000,000)"
appearing in the second WHEREAS clause on page one of the Guaranty Agreement
and replacing such amount with "Four Million Five Hundred Thousand Dollars
($4,500,000)". Each Guarantor hereby acknowledges that all amounts advanced
under the Loan Documents to date and in the future, including, without
limitation, all amounts advanced under the Line of Credit, as amended, shall
be Guaranteed Obligations (as such term is defined in the Guaranty
Agreement).
6. Conditions Precedent. The obligations of the Bank hereunder
are subject to fulfillment of the following conditions precedent:
(a) The Borrower and the Guarantor shall execute and deliver to the
Bank this Agreement and the Amendment Documents.
(b) The Bank shall have received (i) certified copies of
instruments evidencing all corporate action taken by the
Borrower and the Guarantor to authorize the execution and
delivery of this Agreement and the Amendment Documents and (ii)
such other documents, legal opinions, papers and information as
the Bank shall reasonably require including all items listed on
the Closing Agenda attached hereto as Exhibit A.
7. Future References. All references to the Loan Documents shall
hereafter refer to such documents, as amended and shall expressly include,
without limitation, this Agreement and all other Amendment Documents.
8. Loan Documents. The Loan Documents, and the collateral granted
to the Bank therein, shall secure the Loan (as defined in the Loan
Agreement) made pursuant to the Loan Agreement, as amended, and the payment
and performance of the Line of Credit, as amended.
9. Continuing Effect. The provisions of the Loan Documents, as
modified herein, shall remain in full force and effect in accordance with
their terms and are hereby ratified and confirmed.
10. General.
(a) The Borrower and the Guarantor shall execute and deliver such
additional documents and do such other acts as the Bank may
reasonably require to implement the intent of this Agreement
fully.
(b) The Borrower shall pay all costs and expenses, including, but
not limited to, attorneys' fees incurred by the Bank in
connection with this Agreement. The Bank, at its option, but
without any obligation to do so, may advance funds to pay any
such costs and expenses that are the obligation of the
Borrower, and all such funds advanced shall bear interest at
the highest rate provided in the Line of Credit Note, as
amended.
(c) This Agreement may be executed in several counterparts by the
Borrower, the Bank and the Guarantor, each of which shall be
deemed an original but all of which together shall constitute
one and the same Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date set forth above.
FLEET BANK - NH
____________________________ By:_________________________________
Witness Xxxxx X. Xxxxxxxxxxx, Its Duly
Authorized Vice President
PENNICHUCK CORPORATION
____________________________ By:_________________________________
Witness _______________________, Its Duly
Authorized ______________________
PENNICHUCK EAST UTILITY, INC.
____________________________ By:_________________________________
Witness _______________________, Its Duly
Authorized ______________________
THE SOUTHWOOD CORPORATION
____________________________ By:_________________________________
Witness _______________________, Its Duly
Authorized ______________________
PENNICHUCK WATER SERVICE CORPORATION
____________________________ By:_________________________________
Witness _______________________, Its Duly
Authorized ______________________
STATE OF NEW HAMPSHIRE
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this 24th day of
April, 1998, by Xxxxx X. Xxxxxxxxxxx, the duly authorized Vice President of
Fleet Bank-NH, a bank incorporated under the laws of the State of New
Hampshire, on behalf of such bank.
_____________________________________
Justice of the Peace/Notary Public
My Commission Expires:
Notary Seal
STATE OF NEW HAMPSHIRE
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this 24th day of
April, 1998, by ___________________, the duly authorized _____________ of
Pennichuck Corporation, a New Hampshire corporation, on behalf of such
corporation.
_____________________________________
Justice of the Peace/Notary Public
My Commission Expires:
Notary Seal
STATE OF NEW HAMPSHIRE
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this 24th day of
April, 1998, by ___________________, the duly authorized _____________ of
Pennichuck East Utility, Inc., a New Hampshire corporation, on behalf of
such corporation.
_____________________________________
Justice of the Peace/Notary Public
My Commission Expires:
Notary Seal
STATE OF NEW HAMPSHIRE
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this 24th day of
April, 1998, by ___________________, the duly authorized _____________ of
The Southwood Corporation, a New Hampshire corporation, on behalf of such
corporation.
_____________________________________
Justice of the Peace/Notary Public
My Commission Expires:
Notary Seal
STATE OF NEW HAMPSHIRE
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this 24th day of
April, 1998, by ___________________, the duly authorized _____________ of
Pennichuck Water Service Corporation, a New Hampshire corporation, on behalf
of such corporation.
_____________________________________
Justice of the Peace/Notary Public
My Commission Expires:
Notary Seal
