As filed with the Securities and Exchange Commission on May 17, 1995
Registration No. __________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Green Mountain Power Corporation
(Exact name of registrant as specified in its charter)
Vermont 03-0127430
(State of incorporation) (I.R.S. Employer
Identification No.)
25 Green Mountain Drive
South Burlington, Vermont 05403
Telephone number: (802) 864-5731
(Address of principal executive offices)
Christopher L. Dutton Peter H. Zamore
Vice President, Chief Financial Officer General Counsel
and Treasurer Green Mountain Power Corporation
Green Mountain Power Corporation 25 Green Mountain Drive
25 Green Mountain Drive South Burlington, Vermont 05403
South Burlington, Vermont 05403 Telephone: (802) 864-5731
Telephone: (802) 864-5731
(Name, address, and telephone number, including area codes, of agents of
service)
Approximate date of commencement of proposed sale to the public: From
time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box.
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. X
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Each Class of to be Offering Aggregate Registration
Securities Registered Price Offering Fee
To Be Registered (1) Per Unit (1) Price (2)
First Mortgage Bonds
Common Stock $ $ $50,000,000 $17,241
(1) Information as to each class omitted pursuant to General Instruction
II(D) to Form S-3.
(2) Calculated in accordance with Rule 457(o).
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933, as amended, or
until the Registration Statement shall become effective on such date as
the Commission, acting pursuant to said Section 8(a), may
determine.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with
the Securities and Exchange Commission. These securities may not be sold
nor may offers to buy be accepted prior to the time the registration
statement becomes effective. This prospectus shall not constitute an
offer to sell or the solicitation of an offer to buy nor shall there be
any sale of these securities in any State in which such offer,
solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED ____ __, 1995
PROSPECTUS
GREEN MOUNTAIN POWER CORPORATION
First Mortgage Bonds
Common Stock
Green Mountain Power Corporation (the Company) intends from time to
time to sell its First Mortgage Bonds (the New Bonds) and/or Common
Stock, $3.33 1/3 par value (the New Common Stock) (the New Bonds and
the New Common Stock being collectively referred to herein as the
Securities) in any combination at an aggregate initial offering price
not to exceed $50,000,000. The Securities will be offered at prices
and on terms to be determined at the times of sale. For each issue
of the New Bonds for which this Prospectus will be delivered, there
will be an accompanying Prospectus Supplement, together with any
accompanying Pricing Supplement, that will set forth, with respect
to the New Bonds of such issue, (i) the series designation and
aggregate principal amount thereof, (ii) the initial public offering
price and other terms of their offering, (iii) the date or dates on
which they will mature, (iv) the rate or rates per annum at which
they will bear interest, (v) the times at which such interest will be
payable and the date from which it will accrue, (vi) whether all or
any portion thereof will be issued to a designated depositary, (vii)
any redemption or repayment provisions, and (viii) other specific
terms. For each issue of the New Common Stock for which this
Prospectus will be delivered, there will be an accompanying
Prospectus Supplement that will set forth the terms of the offering.
The Common Stock is traded on the New York Stock Exchange. Its price
and volume data are reported on the New York Stock Exchange using the
symbol "GMP". The sale of one of the Securities will not be
contingent upon the sale of the other.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR BY ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The Securities may be sold directly by the Company or through agents
designated from time to time or through underwriters or dealers. If
any agents of the Company or any underwriters are involved in the
sale of the Securities in respect of which this Prospectus will be
delivered, the names of such agents or underwriters, and the initial
price to the public, any applicable commissions or discounts and the
net proceeds to the Company, or the means of determining the same,
will be set forth in an accompanying Prospectus Supplement or
Supplements. The Company may indemnify agents and underwriters
against certain civil liabilities, including liabilities under the
Securities Act of 1933, as amended. See "Plan of Distribution".
The date of this Prospectus is _____ __, 1995.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the Exchange Act) and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the Commission). The Registration
Statement and such exhibits and schedules may be inspected without charge
at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C., and at the regional offices of the
Commission located at Seven World Trade Center, Suite 1300, New York, New
York 10048, and 500 West Madison Street, Suite 1400, Chicago, Illinois
60661, at prescribed rates. Copies of such material may also be obtained
from the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549. The Company's Common Stock is listed on the
New York Stock Exchange. Such reports, proxy statements and other
information concerning the Company can also be inspected at the offices of
the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, heretofore filed with the Commission (File No. 1-
8291) pursuant to the Exchange Act, are hereby incorporated by reference:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1994.
(2) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1995.
All documents filed by the Company pursuant to Section 13(a) and (c), 14
or 15(d) of the Securities and Exchange Act after the date of this
Prospectus and prior to the termination of this offering shall be deemed
to be incorporated by reference into this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded, for purposes of this
Prospectus, to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide, without charge, to each person,
including any beneficial owner, to whom a copy of this Prospectus shall
have been delivered, upon the written or oral request of any such person,
a copy of any or all of the documents which have been or may be
incorporated in this Prospectus by reference, other than exhibits to such
documents, unless such exhibits are specifically incorporated by reference
into such documents. Written or telephone requests for such copies should
be directed to the Corporate Secretary, Green Mountain Power Corporation,
25 Green Mountain Drive, P. O. Box 850, South Burlington, Vermont 05402-
0850 (Telephone 802-864-5731).
THE COMPANY
The Company is a public utility operating company engaged in supplying
electrical energy in the State of Vermont in a territory with an estimated
population of 195,000. The Company has its principal executive office at
25 Green Mountain Drive, P. O. Box 850, South Burlington, Vermont 05402-
0850 (Telephone 802-864-5731.) It serves approximately 80,500 customers.
RATIO OF EARNINGS TO FIXED CHARGES
As computed in accordance with Regulation S-K of the Commission, the
Company's ratios of earnings to fixed charges for each of the years 1990
through 1994, and for the twelve months ended March 31, 1995, are as
follows:
Ratio of
Earnings to
Year Ended Fixed Charges (1)
December 31, 1990 2.47
December 31, 1991 2.73
December 31, 1992 3.01
December 31, 1993 2.78
December 31, 1994 2.74
Twelve Months Ended March 31, 1995 2.67
______
(1) Earnings consist of pretax income plus fixed charges as defined in
Item 503 paragraph (d)(3). Fixed charges computed pursuant to paragraph
(d)(4) of Item 503 consist of interest on all indebtedness, amortization
of debt expense and discount or premium relating to any indebtedness,
and the estimated interest portion of rentals charged to income.
USE OF PROCEEDS AND FINANCING PROGRAM
The net proceeds to be received by the Company from the sale of the
Securities will be applied to the refunding of long-term debt, the
financing of capital projects and the repayment of short-term bank
borrowings incurred for such purposes and for other general corporate
purposes.
The Company expects its capital expenditures in 1995 to be approximately
$22 million. The Company expects such expenditures for the five-year
period, 1995-99, to aggregate approximately $93.5 million.
The Company anticipates that for the period 1995 - 1999, internally
generated funds will provide approximately 90 percent of total capital
expenditure requirements. The remaining amount, plus funds required to
meet sinking fund requirements and debt maturities totaling approximately
$34.9 million, will be funded through short-term borrowings, which will be
refinanced periodically through the sale of long-term debt and equity
securities, in such amounts and at such times as the Company's cash
requirements and market conditions shall determine.
DESCRIPTION OF THE NEW BONDS
The statements under this caption are intended to summarize the New Bonds
and the Mortgage; they do not purport to be complete and are qualified in
their entirety by reference to the New Bonds and the Mortgage, copies of
which have been filed as exhibits to the Registration Statement of which
this Prospectus is a part.
General. The New Bonds are to be issued under the Company's Indenture of
First Mortgage and Deed of Trust, dated as of February 1, 1955, to the
United States Trust Company of New York [successor to the Chase Manhattan
Bank (National Association), successor to the Chase National Bank of the
City of New York], as trustee, as supplemented by 15 supplemental
indentures and as to be further supplemented by one or more additional
supplemental indentures providing for one or more series of the New Bonds,
all of which are collectively referred to as the Mortgage.
Reference is made to the Prospectus Supplement or Supplements for each
issue of the New Bonds for the following terms, among others, of the New
Bonds offered thereby: (i) the series designation and aggregate principal
amount thereof, (ii) the initial public offering price and other terms of
their offering, (iii) the date or dates on which they will mature, (iv)
the rate or rates per annum at which they will bear interest, (v) the
times at which such interest will be payable and the date from which it
will accrue, (vi) whether all or any portion thereof will be issued to a
designated depositary, (vii) any redemption or repayment provisions, and
(viii) other specific terms.
Form, Exchange and Payment. Unless otherwise indicated in the Prospectus
Supplement for an issue of the New Bonds, the New Bonds offered thereby
will be issued only in the form of fully registered global bonds,
interests in which will be transferable by book-entry (Global Securities)
form in denominations of $1,000 and any multiple thereof. If definitive
New Bonds are exchanged for a Global Security, they will be issued in
denominations of $1,000 and integral multiples of $1,000. The New Bonds
will be deposited with, or on behalf of, the Depository Trust Company, New
York, New York (DTC) and registered in the name of Cede & Co., as DTC's
nominee.
Security. The New Bonds together with all other bonds (Bonds) now or
hereafter issued under the Mortgage will be secured by the Mortgage,
which, in the opinion of Peter H. Zamore, Esq., General Counsel of the
Company, subject only to permitted encumbrances as defined in the
Mortgage, constitutes a valid, direct first mortgage lien upon the real
and personal property described or referred to in the Mortgage as owned by
the Company (other than classes of property expressly excepted in the
Mortgage and property heretofore released from the lien of the Mortgage in
accordance with the terms thereof), which include all of the physical
properties and franchises of the Company used or useful in its public
utility business; and all physical properties and franchises of the
Company used or useful in its public utility business (other than those of
the character not subject to the lien of the Mortgage as aforesaid)
acquired by the Company after the respective dates of the Original
Indenture and each Supplemental Indenture have become, or will upon such
acquisition become, subject to the lien thereof, subject, however, to
permitted encumbrances and to liens, if any, existing or placed thereon by
the Company at the time of the acquisition thereof by the Company and,
subject, in the case of after acquired properties located in
municipalities or counties in which the Mortgage has not been recorded at
or prior to the time of acquisition, to the rights of holders or liens
perfected on such properties prior to the recording of the Mortgage in
such municipalities or counties. There are excepted from the lien of the
Mortgage certain specifically excepted properties; all cash on hand and in
banks, contracts, shares of stock, bonds, notes, evidences of indebtedness
and other securities, bills, notes and accounts receivable and other
choses in action, conditional sales agreements and appliance rental or
lease agreements other than those expressly subjected to the Mortgage; all
equipment, materials and supplies not installed as part of the fixed
property of the Company and which are held for use or consumption in its
business; all goods, wares, merchandise, appliances and supplies,
purchased, acquired or held for the purpose of sale, lease or
distribution; and gas, oil, coal, fissionable material and other minerals
and other products, fuel and other personal property which are consumable
in their use in the operation of the plants or systems of the Company;
office furniture, equipment and supplies; aircraft, automobiles, trucks
and similar vehicles; and certain other properties of the Company set
forth in the Mortgage. (See Mortgage, Granting Clauses.)
The Mortgage contains provisions subjecting after-acquired property
(subject to pre-existing liens) to the lien thereof, subject to
limitations in the case of consolidation, merger or sale of substantially
all of the Company's assets. (See Mortgage, Granting Clauses and Article
Fourteen.)
The Mortgage provides that the trustees shall have a lien upon the
mortgaged property, prior to that of the Bonds, for the payment of their
reasonable compensation and expenses, and for indemnity against certain
liabilities. (See Mortgage, Section 15.10.)
Issuance of Additional Bonds. Additional Bonds of any series may be
issued in an aggregate principal amount equal to:
(1) 60 percent of unfunded net property additions (the cost or
fair value at the time of acquisition, whichever is less, of
utility property charged to plant accounts of the Company after
December 31, 1954, less the minimum provision for depreciation
from said date);
(2) the principal amount of unfunded Bond credits for the
retirement of Bonds of any series; and /or
(3) cash deposited with the Trustee;
subject to the filing of an earnings certificate (except in the case of
certain refundings) showing net earnings available for interest (as
defined), for a period of 12 consecutive months within the 15 calendar
months preceding the date of application, to be at least two times annual
interest requirements on bonded debt then to be outstanding.
Property additions generally include the utility property, tangible or
intangible, of the Company, located in the United States of America, which
(except as provided below) is used by or useful to the Company in the
business of generating, manufacturing, storing, transmitting,
distributing, utilizing, purchasing, furnishing, supplying and/or
disposing of electricity and/or gas, for heat, light, power, or
refrigeration or other uses, or in any business which is incidental
thereto, including, without limiting the generality of the foregoing, all
properties necessary or appropriate for generating, manufacturing,
storing, transmitting, distributing, utilizing, purchasing, furnishing,
supplying and/or disposing of electricity and/or gas, together with
betterments, improvements, additions, replacements, or alterations of,
upon or to such property of the Company acquired after December 31, 1954.
Utility property shall not be deemed to include any property excepted from
the lien of the Mortgage. As of December 31, 1994, approximately
$17,000,000 of property additions and $15,100,000 of unfunded Bond Credits
were available for use as the basis for the issuance of Bonds.
The Mortgage contains certain restrictions upon the issuance of Bonds
against property subject to liens. The New Bonds will be issued against
property additions and/or unfunded Bond Credits for the retirement of
Bonds. (See Mortgage, Articles Two, Seven, Nine and Fourteen.)
The Mortgage provides that the Company and/or the Trustee may release
property from the lien of the Mortgage, so long as no default exists: (1)
in the ordinary course of the Company's business, with respect to property
which has become old or worn out, provided such property is replaced by
the Company, and in connection with a release, surrender, abandonment or
termination of any rights of the Company which is necessary, desirable or
advisable in connection with the conduct of the utility business of the
Company; (2) upon written request of the Company to the Trustee in
connection with the sale of any such property, provided that the Company
shall receive fair consideration therefor and provided that the release
will not impair the security of the Mortgage; (3) in connection with a
condemnation by any government entity of property of the Company, provided
the Company receives fair value therefor; (4) without any consent or
release by the Trustee, in connection with a sale of property by the
Company of property no longer used or useful in the conduct of the
Company's business, provided that the aggregate value of any such property
so disposed of in any one calendar year shall not exceed the greater of
$50,000 or 3/4 of 1% of the outstanding Bonds; or (5) in connection with
the taking, sale or release of all or substantially all of the Company's
property, upon the deposit of Government or purchase money securities with
the Trustee. (See Mortgage, Article Seven.)
Defaults and Notice Thereof. The Mortgage defines the following events as
"defaults":
(1) failure to pay principal of, or premium (if any) on, any Bond
when due;
(2) failure to pay interest on any Bond when due and continuance
of such failure for a period of 30 days;
(3) failure to discharge or satisfy any improvement, maintenance,
or depreciation fund obligation and continuance of such failure
for a period of 60 days;
(4) failure to discharge or satisfy any sinking fund obligation
and continuance of such failure for a period of 20 Business
Days;
(5) failure to perform or observe any of the other covenants,
agreements or conditions in the Mortgage and continuance of such
failure for a period of 90 days following written notice by the
Trustee or by holders of at least 15 percent in principal amount
of the Bonds;
(6) the entry of an order for reorganization or appointment of a
trustee or receiver of all or a substantial part of the
mortgaged property and continuance of such order or appointment
unstayed for a period of 90 days;
(7) certain adjudications, petitions or consents in bankruptcy,
insolvency or reorganization proceedings or an admission of
insolvency or an assignment for the benefit of creditors by the
Company; or
(8) the rendering of a judgment against the Company for the
payment of moneys in excess of the Judgment Amount (as herein
defined) and continuance of such judgment unsatisfied and
without stay of execution for a period of 90 days after (i) the
entry of such judgment or (ii) the termination of any stay of
execution entered during the initial 90-day grace period; but
only, in either case, if such judgment shall have been continued
unstayed or unsatisfied for a period of 10 days after the giving
of written notice of default to the Company by the Trustee or to
the Company and the Trustee by the holders of at least
15 percent in principal amount of the Bonds outstanding. As
used herein, "Judgment Amount" shall mean (a) $50,000 until the
earlier to occur of (i) all Bonds of any series established
prior to the execution of the Company's Tenth Supplemental
Indenture having ceased to be outstanding, whether at their
respective stated maturities or through a provision for
redemption prior to their stated maturities, or (ii) the
execution of a supplemental indenture with the written consent
of the holders of not less than 66 2/3 percent in principal
amount of all Bonds of any series heretofore created and issued
(and, if more than one such series of Bonds shall at the time be
outstanding, not less than 66 2/3 percent in principal amount
of the Bonds of each such series), and (b) thereafter
$1,000,000.
So long as one or more of such defaults shall continue to exist and
provided that the principal of all the Bonds shall not have already become
due and payable, either the Trustee (by notice in writing to the Company)
or the holders of not less than 25 percent in principal amount of the
Bonds outstanding (by notice in writing to the Company and the Trustee)
may declare the principal of and accrued interest on all Bonds then
outstanding to be immediately due and payable notwithstanding the
Company's right, following such declaration but prior to any sale of all
or a substantial part of the mortgaged property, to cure all defaults to
the satisfaction of the Trustee in accordance with the terms of the
Indenture.
(See Mortgage, Article Twelve.)
The Mortgage does not require the Company to give the Trustee or any
holders of any Bonds periodic reports as to the Company's compliance with
the provisions of the Mortgage. The Company and the Trustee are required
to provide the notices and reports to the holders of the Bonds required by
the Trust Indenture Act of 1939, as amended, and copies of the reports and
information required under the Securities Exchange Act of 1934, as
amended. (See Mortgage, Article Eleven.)
Evidence to be Furnished to the Trustee. Compliance with Mortgage
provisions is evidenced by written statements of the Company's officers or
persons selected by the Company. In certain major matters the accounting,
engineer, appraiser or other expert must be independent. Various
certificates and other papers, including a certificate with respect to
compliance with the terms of the Mortgage and the absence of defaults, are
required to be filed annually and upon the occurrence of certain events.
(See Mortgage, Sections 9.06, 9.07, 9.08.)
Modification of the Mortgage. The Mortgage may be amended and/or any past
default thereunder (except a default in the payment of the principal of,
premium, if any, or interest on any of the Bonds) and its consequences may
be waived with the consent of the holders of at least 66 2/3 percent in
principal amount of Bonds then outstanding, and of each series of Bonds
then outstanding and affected by the proposed modification or waiver.
Upon the earlier to occur of (i) all Bonds of any series established prior
to the execution of the Company's Tenth Supplemental Indenture having
ceased to be outstanding, whether at their respective stated maturities or
through a provision for redemption prior to their stated maturities, and
(ii) the execution of a supplemental indenture with the written consent of
the holders of all Bonds of any series created and issued prior to the
date of the Tenth Supplemental Indenture, the Mortgage may be amended
and/or any past default thereunder (except a default in the payment of the
principal of, premium, if any, or interest on any of the Bonds) and its
consequences may be waived with the consent of the holders, acting
together as a single class, of at least 66 2/3 percent in principal
amount then outstanding of all Bonds issued pursuant to the Indenture and
affected by the proposed modification or waiver. In no instance shall any
modification regarding the terms of payment of principal of, premium, if
any, and interest on the New Bonds or a waiver of any past default with
respect to payment of such principal, premium or interest or its
consequences be effected without the consent of the holders of the New
Bonds, nor may any modification affecting the lien of the Mortgage or
reducing the percentage in principal amount of Bonds required for
modification, be effected without the consent of the holders of all
outstanding Bonds. (See Mortgage, Article Eighteen and Tenth Supplemental
Indenture.)
Concerning the Trustee. United States Trust Company of New York,
successor to the Chase Manhattan Bank (National Association), successor to
the Chase National Bank of the City of New York, is the trustee under the
Mortgage.
DESCRIPTION OF NEW COMMON STOCK
The following is a summary of certain rights and privileges and
restrictions on the Common Stock. This summary does not purport to be
complete. Reference is made to the Restated Articles of Association and
the Bylaws of the Company and the Mortgage, filed as exhibits to the
Registration Statement, for complete statements. The following statements
are qualified in their entirety by such references.
General. The outstanding shares of Common Stock, $3.33 1/3 par value, of
the Company are fully paid and nonassessable. The shares of the New
Common Stock, upon payment of the purchase price, will be fully paid and
nonassessable.
Dividend Restrictions. No dividends may be paid on the Common Stock nor
may the Company purchase any Common Stock unless all cumulative dividends
on the Company's outstanding Preferred Stock have been paid or provided
for, all Preferred Stock purchase-fund requirements have been satisfied,
full dividends on any Preference Stock have been paid or provided for and
the other restrictions summarized below have been complied with. In
addition, so long as any shares of Preferred Stock are outstanding, the
Company shall not pay any dividends on any shares of stock junior to the
Preferred Stock or make any other distributions thereon or any
expenditures for the purchase, redemption or other retirement for a
consideration of such junior stock except from net income of the
Corporation available for dividends on such junior stock accumulated
subsequent to December 31, 1954 plus the sum of $150,000.
The Mortgage provides that the Company shall not declare or pay any cash
dividend on or make any other distribution in respect of its Common Stock,
or, with certain exceptions, repurchase any capital stock of the Company
if the aggregate amount so declared, paid, distributed or expended after
December 31, 1992 would exceed the aggregate amount of net income of the
Company available for dividends on its Common Stock accumulated after
December 31, 1992, plus $18,500,000. As of December 31, 1994, the amount
of retained earnings available for dividends on the Common Stock under
this provision was $19,900,000.
Voting Rights. The holders of the Common Stock have exclusive voting
rights except as referred to below and as otherwise provided by law.
Whenever dividends on any series of outstanding Preferred Stock shall be
in arrears in an amount equivalent to four or more quarterly dividends,
the holders of the Preferred Stock shall have the right, until no
dividends are in arrears and the current dividend is provided for, to
elect that number of directors, not exceeding the smallest number of
directors necessary to constitute a majority of the Board of Directors
equal to two times the number of full years that such arrearage shall
continue. Whenever an event of default occurs in payment of any purchase
or sinking-fund installment, the holders of Preferred Stock shall have the
right, until such default shall have been remedied, to elect two
directors. In addition, the votes or consent of the holders of specified
percentages of the Preferred Stock and any Preference Stock are required
as a condition to effecting various changes in the capital structure of
the Company and certain other transactions. The Company is prohibited,
without the consent of the holders of at least two-thirds of the aggregate
number of shares of all classes of Preferred Stock entitled to vote
thereon, from (x) creating or authorizing, or increasing the authorized
amount of, any shares of any class of stock ranking as to dividends or
assets prior to the Preferred Stock, or of any obligation or security
convertible into stock ranking as to dividends or assets prior to the
Preferred Stock; or (y) amending, changing or repealing any of the express
terms of the Preferred Stock outstanding in any manner adverse to the
holders thereof; or (z) issuing shares of Preferred Stock unless certain
income and asset tests are satisfied. The Company is prohibited, without
the consent of the holders of a majority of the aggregate number of shares
of Preferred Stock, from (x) issuing, creating, guaranteeing or permitting
to exist any unsecured securities evidencing indebtedness maturing more
than one year from the date of issuance, except for the purpose of
refunding or retiring the outstanding Preferred Stock if the principal
amount of such unsecured securities would exceed twenty percent (20%) of
(a) the total principal amount of all secured indebtedness then
outstanding and (b) the total of the capital and surplus; (y) merging or
consolidating with or into any other corporation, provided that such vote
is not required if such other corporation is a public utility principally
engaged in the distribution of gas or electricity in the State of Vermont
and if after such merger or consolidation certain financial tests with
respect to the Preferred Stock are satisfied; or (z) selling, leasing or
otherwise disposing of all or substantially all of its property.
Liquidation Rights. After satisfaction of the preferential liquidation
rights of the Preferred Stock and any Preference Stock, the holders of
Common Stock are entitled to share, ratably, in the distribution of all
remaining assets of the Company. Holders of the Preferred Stock are
entitled to receive $100 per share and accrued dividends on involuntary
liquidation.
Holders of any Preference Stock will be entitled to receive such amounts
as determined by the Board of Directors at the time of issuance of such
Stock.
Preemptive Rights. The holders of the Common Stock have no preemptive
rights.
Anti-Greenmail, Fair Price and Business Judgment Provisions. Section 7.05
of the Company's Restated Articles of Association is intended to prevent
so-called "greenmail". That Section prohibits the Company, in the absence
of a special shareholder approval, from purchasing any of its outstanding
shares of Common Stock at a price in excess of the fair market value of
such shares from a beneficial owner of more than five percent of the
Company's Common Stock (a "Related Person," as such term is more
specifically defined in Section 7.06 of the Restated Articles of
Association) who has owned such shares for less than two years, subject to
certain limited exceptions. The special shareholder approval required by
Section 7.05 is the greater of eighty percent of the voting power of the
Company, or the sum of the number of shares owned by the Related Person
plus a majority of the voting power of the Company not beneficially owned
by the Related Person.
Section 7.06 of the Company's Restated Articles of Association is a fair-
price provision that is designed to provide reasonable assurance that any
attempt to acquire the Company will be made only on terms that are fair to
all shareholders. That Section requires that mergers and certain other
Business Combinations (as defined below) involving the Company and a
Related Person, unless approved by a majority of the Directors who are
unaffiliated with such Related Person, must be approved by at least eighty
percent of the voting power of the Company, as compared to the two-thirds
vote required by Vermont law, and satisfy certain minimum-price, form-of-
consideration and procedural requirements.
Section 7.07 of the Company's Restated Articles of Association is a
business judgment provision that requires that the Board of Directors, in
evaluating any proposal for a merger or Business Combination involving the
Company, take into consideration certain relevant factors, including the
impact of any such transaction on the Company's suppliers, customers and
employees, that might not otherwise be considered. For the purposes of
Sections 7.06 and 7.07, a "Business Combination," in general, includes the
following transactions: (1) a merger or consolidation of the Company or
any subsidiary with a Related Person or certain affiliates or associates
of the Related Person; (2) the sale or other disposition by the Company or
a subsidiary of assets having an aggregate fair market value of $5,000,000
or more, or the use thereof in certain financial arrangements, if a
Related Person is a party to the transaction; (3) the issuance or transfer
(other than on a pro rata basis to all shareholders) of stock or other
securities of the Company or of a subsidiary to a Related Person or
affiliates or associates of the Related Person; (4) the adoption of any
plan or proposal for the liquidation or dissolution of the Company
proposed by or on behalf of or voted for or consented to by any Related
Person or any affiliates or associates thereof; (5) any reclassification
of securities, recapitalization, merger or consolidation with a subsidiary
or other transaction that has the effect, directly or indirectly, of
increasing the percentage of the outstanding stock of any class of the
Company or a subsidiary owned by a Related Person or any affiliate or
associate thereof; or (6) any similar transaction of similar purpose or
effect or any agreement, contract or other arrangement providing for any
one or more of the foregoing actions. The Restated Articles of
Association provide that any amendment to Sections 7.06 and 7.07 must be
approved by at least eighty percent of the voting power of the Company,
unless such amendment has been recommended by a majority of the members of
the Board of Directors who are not Related Persons, and who are
unaffiliated with a Related Person and became Directors of the Company
prior to the time that a Related Person became such.
Staggered Board of Directors. The Board of Directors of the Company has
approved an amendment to the Company's By-laws which, if adopted by the
shareholders, will result in the members of the Company's Board of
Directors being elected for three year terms, with one-third of the
members of the Board of Directors elected each year. The shareholders of
the Company are expected to act on this amendment at their annual meeting
in May 1995.
Transfer Agent and Registrar. The Transfer Agent and Registrar is
Chemical Bank, New York, New York.
PLAN OF DISTRIBUTION
The Company may sell the Securities (i) through underwriters; (ii) through
dealers; (iii) directly to one or more institutional purchasers; or (iv)
through agents. Securities may be sold outside the United States. An
accompanying Prospectus Supplement or Supplements will set forth the terms
of each offering of the Securities including the name or names of any
underwriters, dealers, purchasers or agents, the purchase price of such
Securities and the proceeds to the Company from such sale, any
underwriting discounts and other items constituting underwriters' or
agents' compensation, any initial public offering price, any discounts or
concessions allowed or reallowed or paid to dealers and any securities
exchanges on which such Securities may be listed. Any initial public
offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time. Only firms named in the
Prospectus Supplement are deemed to be underwriters, dealers or agents in
connection with the Securities offered thereby.
If underwriters are used in the sale, Securities will be acquired by the
underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of sale.
Unless otherwise set forth in the Prospectus Supplement, the obligations
of the underwriters to purchase the Securities will be subject to certain
conditions precedent, and the underwriters will be obligated to purchase
all such Securities if any are purchased.
Securities may be sold directly by the Company or through any firm
designated by the Company from time to time, acting as principal or as
agent. The Prospectus Supplement will set forth the name of any dealer or
agent involved in the offer or sale of the Securities in respect of which
the Prospectus Supplement is delivered and the price payable to the
Company by such dealer or any commissions payable by the Company to such
agent. Unless otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a reasonable efforts basis for the period of its
appointment.
Underwriters, dealers and agents may be entitled under agreements entered
into with the Company to indemnification by the Company against certain
civil liabilities, including liabilities under the Securities Act of 1933,
or to contribution with respect to payments for such liabilities which
underwriters, dealers or agents may be required to make. Underwriters,
dealers and agents may engage in transactions with or perform services for
the Company in the ordinary course of business.
The anticipated date of delivery of Securities will be as set forth in the
Prospectus Supplement or Supplements relating to such offering.
LEGAL OPINIONS AND EXPERTS
The legality of the Securities offered hereby is being passed upon for the
Company by Hunton & Williams, 200 Park Avenue, 43rd Floor, New York, New
York 10166, special counsel for the Company, and by Peter H. Zamore, Esq.,
General Counsel of the Company, and for the underwriters, dealers or
agents by Reid & Priest LLP, 40 West 57th Street, New York, New York
10019. Hunton & Williams and Reid & Priest LLP will rely on the opinion
of Peter H. Zamore, Esq. as to matters of Vermont law.
The audited consolidated financial statements and schedules of the Company
for the period ended December 31, 1994, included in the Company's Annual
Report on Form 10-K for the year ended December 31, 1994, which are
incorporated in this Prospectus by reference, have been examined by Arthur
Andersen LLP, independent certified public accountants, as set forth in
their report dated January 31, 1995, with respect thereto, and are
included in this Prospectus, through incorporation by reference, in
reliance upon the report of such firm and their authority as experts in
accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Filing fee Securities and Exchange Commission . . . . . . . . . . $ 17,241
Rating agencies' fees* . . . . . . . . . . . . . . . . . . . . . . 28,000
Trustees' fees* . . . . . . . . . . . . . . . . . . . . . . . . . 20,000
Legal Fees and expenses* . . . . . . . . . . . . . . . . . . . . . 125,000
Accounting fees and expenses* . . . . . . . . . . . . . . . . . . 35,000
Printing and engraving* . . . . . . . . . . . . . . . . . . . . . 35,000
Miscellaneous expenses* . . . . . . . . . . . . . . . . . . . . . 34,759
Total expenses* . . . . . . . . . . . . . . . . . . . . . . . . 295,000
*Estimated
Item 15. Indemnification of Directors and Officers
The Vermont Business Corporation Act (11A Section 8.51, Section 8.52,
Section 8.54, Section 8.55 and Section 8.56) provides, in pertinent part,
as follows:
(8.51) (a) Except as provided in subsection (d) of this section, a
corporation may indemnify an individual made a party to a preceding
because the individual is or was a director against liability incurred
in the proceeding if: (1) the director conducted himself or herself in
good faith; and (2) the director reasonably believed: (A) in the case
of conduct in the director's official capacity with the corporation,
that the director's conduct was in its best interests; and (B) in all
other cases, that the director's conduct was at least not opposed to its
best interests; and (3) in the case of any proceeding brought by a
governmental entity, the director had no reasonable cause to believe his
or her conduct was unlawful, and the director is not finally found to
have engaged in a reckless or intentional unlawful act.
(b) A director's conduct with respect to an employee benefit plan for
a purpose the director reasonably believed to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies
the requirements of subdivision (a)(2)(B) of this section.
(c) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent is not,
of itself, determinative that the director did not meet the standard of
conduct described in this section.
(d) A corporation may not indemnify a director under this section:
(1) in connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the
corporation; or (2) in connection with any other proceeding charging
improper personal benefit to the director, whether or not involving
action in the director's official capacity, in which the director was
adjudged liable on the basis that personal benefit was improperly
received by the director.
(e) Indemnification permitted under this section in connection with a
proceeding by or in the right of the corporation is limited to
reasonable expenses incurred in connection with the proceeding.
(8.52) Unless limited by its articles of incorporation, a corporation
shall indemnify a director who was wholly successful, on the merits or
otherwise, in the defense of any proceeding to which the director was a
party because the director is or was a director of the corporation
against reasonable expenses incurred by the director in connection with
the proceeding.
(8.54) A director of the corporation who is a party to a proceeding
may apply for indemnification to the court conducting the proceeding or
to another court of competent jurisdiction. On receipt of an
application, the court after giving any notice the court considers
necessary may order indemnification if it determines: (1) the director
is entitled to mandatory indemnification under section 8.52 or this
title, in which case the court shall also order the corporation to pay
the director's reasonable expenses incurred to obtain court-ordered
indemnification; or (2) the director is fairly and reasonably entitled
to indemnification in view of all the relevant circumstances, whether or
not the director met the standard of conduct set forth in section 8.51,
but if the director was adjudged liable as described in 8.51(d), but if
the director was adjudged so liable the director's indemnification is
limited to reasonable expenses incurred.
(8.55) (a) Except as provided in section 8.53 of this title, a
corporation may not indemnify a director under section 8.51 of this
title prior to the final resolution of a proceeding, whether by
judgment, order, settlement, conviction, plea, or otherwise, and unless
authorized in the specific case after a determination has been made that
indemnification of the director is permissible in the circumstances
because the director has met the standard of conduct set forth in
section 8.51. (b) The determination required by subsection (a) of this
section, in accordance with the terms of section 8.51 of this title,
shall be made: (1) by the board of directors by majority vote of a
quorum consisting of directors not at the time parties to the
proceeding; (2) if a quorum cannot be obtained under subdivision (1) of
this subsection, by majority vote of a committee duly designated by the
board of directors (in which designation directors who are parties may
participate), consisting solely of two or more directors not at the time
parties to the proceedings; (3) by written opinion of special legal
counsel: (A) selected by the board of directors or its committee in the
manner prescribed in subdivision (1) or (2) of this subsection; or (B)
if a quorum of the board of directors cannot be obtained under
subdivision (1) and a committee cannot be designated under subdivision
(2), selected by majority vote of the full board of directors (in which
selection directors who are parties may participate); or (4) by the
shareholders, but shares owned by or voted under the control of
directors who are at the time parties to the proceeding may not be voted
on the determination. (c) Authorization of indemnification and
evaluation as to reasonableness of expenses shall be made in the same
manner as the determination that indemnification is permissible, except
that if the determination is made by special legal counsel,
authorization of indemnification and evaluation as to reasonableness of
expenses shall be made by those entitled under subdivision (b)(3) of
this section to select counsel.
(8.56) Unless a corporation's articles of incorporation limit
indemnification of an officer, employee, or agent of the corporation:
(1) an officer of the corporation who is not a director is entitled to
mandatory indemnification under section 8.52 of this title, and is
entitled to apply for court-ordered indemnification under section 8.54
of this title, in each case to the same extent as a director; (2) the
corporation may indemnify and advance expenses under this subchapter to
an officer, employee, or agent of the corporation who is not a director
to the same extent as a director.
Section 9 of Article IV of the Company's By-Laws, as amended, reads
as follows:
"Section 9. Indemnification. This Corporation shall indemnify any
persons threatened with or made a party to any action, suit or
proceeding, civil or criminal, by reason of the fact that he, his
testator or intestate, is or was a director or officer of this
Corporation or of any corporation which he served as such at the request
of this Corporation, against judgments, fines or penalties and the
reasonable cost and expenses, including but not restricted to attorney's
fees, actually and reasonably incurred by him in connection with the
defense of such action, suit or proceeding or in connection with any
appeal therein, except in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such director or
officer is liable for gross negligence or misconduct in the performance
of duty to the Corporation; provided, however, that as to any matter
disposed of by compromise by such person, pursuant to a consent decree
or otherwise, no indemnification either for a compromise payment or for
any other expenses shall be provided unless such compromise shall be
approved as in the best interests of the Corporation after notice that
it involves such indemnification: (a) by a disinterested majority of
the directors then in office; or (b) by a majority of the disinterested
directors then in office, provided that there has been obtained an
opinion in writing of independent legal counsel to the effect that such
person, his testator or intestate, as the case may be, appears not to be
liable for gross negligence or misconduct in the performance of duty to
the Corporation; or (c) by the holders of a majority of the outstanding
stock at the time entitled to vote for directors, voting as a single
class, exclusive of any stock owned by any interested director or
officer. Expenses reasonably incurred by any such person in connection
with the defense or disposition of any such action, suit or other
proceeding shall be paid from time to time by this Corporation in
advance of the final determination thereof upon receipt of a written
undertaking from such person to repay the amounts so paid by the
Corporation if it is ultimately determined that indemnification for such
expenses is not required under this section. The foregoing right to
indemnity shall not be deemed exclusive of any other rights to which
such director or officer may be entitled apart from the provisions of
this paragraph."
Subject to certain exceptions, the directors, all corporate officers and
any employee of the Company acting in the capacity of a director or
officer with the express authorization of a director or officer and the
heirs, assigns and estates of such directors, officers and employees of
the Corporation are insured to the extent of 100% of the loss, with an
overall limit of $35,000,000 (over certain underlying limits) because of
any claim or claims made against them, including claims arising under the
Securities Act of 1933, and caused by any negligent act, any error, any
omission or any breach of duty while acting in their capacities as such
directors or officers, and the Corporation is insured to the extent that
it shall have indemnified the directors and officers for such loss. The
premiums for such insurance are paid by the Corporation.
Item 16. Exhibits
EXHIBIT INDEX
Certain of the following exhibits are filed herewith. Certain other of
the following exhibits have heretofore been filed with the Securities and
Exchange Commission and are incorporated herein by reference.
<TABLE>
<CAPTION>
Exhibit
Number
<S> <C>
*1(a) --- Form of Distribution Agreement relating to the New Bonds.
*1(b) --- Form of Underwriting Agreement relating to the New Common Stock.
3-a --- Articles of Association as restated (Exhibit 3-a, Form 10-K, 1993, File No. 1-8291).
3-a-1 --- Amendment to 3-a above, dated as of May 20, 1993 (Exhibit 3-a-1, Form 10-K 1993, File No. 1-
8291).
3-b --- By-laws, as amended (Exhibit 3-b, Form 10-K, 1993, File No. 1-8291).
4-a-1 --- Indenture of First Mortgage and Deed of Trust dated as of February 1, 1955 (Exhibit 4-b,
Registration No. 2-27300).
4-a-2 --- First Supplemental Indenture dated as of April 1, 1961 (Exhibit 4-b-2, Registration No. 2-
75293).
4-a-3 --- Second Supplemental Indenture dated as of January 1, 1966 (Exhibit 4-b-3, Registration No. 2-
75293).
4-a-4 --- Third Supplemental Indenture dated as of July 1, 1968 (Exhibit 4-b-4, Registration No. 2-
75293).
4-a-5 --- Fourth Supplemental Indenture dated as of October 1, 1969 (Exhibit 4-b-5, Registration No. 2-
75293).
4-a-6 --- Fifth Supplemental Indenture dated as of December 1, 1973 (Exhibit 4-b-6, Registration No. 2-
75293).
4-a-7 --- Seventh Supplemental Indenture dated as of August 1, 1976 (Exhibit 4-a-7, Registration No. 2-
99643).
4-a-8 --- Eighth Supplemental Indenture dated as of December 1, 1979 (Exhibit 4-a-8, Registration No.
2-99643).
4-a-9 --- Ninth Supplemental Indenture dated as of July 15, 1985 (Exhibit 4-a-9, Registration No. 2-
99643).
4-a-10 --- Tenth Supplemental Indenture dated as of June 15, 1989 (Exhibit 4-b-10, Form 10-K, 1989, File
No. 1-8291).
4-a-11 --- Eleventh Supplemental Indenture dated as of September 1, 1990 (Exhibit 4-b-11, Form 10-Q,
September 1990, File No. 1-8291).
4-a-12 --- Twelfth Supplemental Indenture dated as of March 1, 1992 (Exhibit 4-b-12, Form 10-K, 1991,
File No. 1-8291).
4-a-13 --- Thirteenth Supplemental Indenture dated as of March 1, 1992 (Exhibit 4-b-13, Form 10-K, 1991,
File No. 1-8291).
4-a-14 --- Fourteenth Supplement Indenture dated as of November 1, 1993 (Exhibit 4-b-14, Form 10-K 1993,
File No. 1-8291)
4-a-15 --- Fifteenth Supplemental Indenture dated as of November 1, 1993 (Exhibit 4-b-15, Form 10-K
1993, File No. 1-8291).
*4-a-16--- Form of Sixteenth Supplemental Indenture .
*5-a-1 --- Opinion of Hunton & Williams.
*5-a-2 --- Opinion of Peter H. Zamore, Esq.
*12 --- Computation of Ratio of Earnings to Fixed Charges.
*23-a --- Consent of Hunton & Williams (included in their opinion filed as Exhibit 5-a-1).
*23-b --- Consent of Peter H. Zamore, Esq. (included in his opinion filed as Exhibit 5-a-2).
*23-d --- Consent of Arthur Andersen LLP (contained on Page 18 of this Registration Statement).
*24-a --- Power of Attorney (Contained on Page 16 of this Registration Statement).
*25 --- Statement of Eligibility of the Corporate Mortgage Trustee on Form T-1.
*Filed herewith.
</TABLE>
Item 17. Undertakings
A. The undersigned registrant hereby undertakes: (1) to file, during
any period in which offers or sales are being made, a post-effective
amendment to this registration statement; (i) to include any prospectus
required by Section 10(a)(3) of the Securities Act of 1933, (ii) to
reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration
statement, and (iii) to include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; provided, however, that clauses (1)(i) and (1)(ii) do not apply
if the registration statement is on Form S-3, Form S-8, or Form F-3 and
the information required to be included in a post-effective amendment by
those clauses is contained in periodic reports filed by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement; (2)
that, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and (3) to remove from registration by
means of a post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described
under Item 15 of the registration statement, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in
the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned in his
capacity as a Director or officer, as the case may be, of said Company,
does hereby appoint Douglas G. Hyde, Christopher L. Dutton and Peter H.
Zamore, Esq., and each of them severally, his true and lawful attorneys or
attorney to execute in his name, place and stead, in his capacity as a
Director of officer or both, as the case may be, of said Company, this
Registration Statement and any and all amendments and post-effective
amendments thereto and all instruments necessary or incidental in
connection herewith, and to file the same with the Securities and Exchange
Commission. Each of said attorneys shall have power to act hereunder with
or without any other of said attorneys, and shall have full power of
substitution and resubstitution. Each of said attorneys shall have full
power and authority to do and perform in the name and on behalf of each of
the undersigned, in any and all capacities, every act whatsoever requisite
or necessary, in any and all capacities, as fully and to all intents and
purposes as each of the undersigned might or could do in person, and each
of the undersigned hereby ratifies and approves of the act of said
attorneys and each of them.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of South Burlington, and State of Vermont on the
17th day of May, 1995.
GREEN MOUNTAIN POWER CORPORATION
(Registrant)
By: /s/Christopher L. Dutton
Christopher L. Dutton, Vice President,
Chief Financial Officer & Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in
the capacities and on the date indicated.
Signature Title Date
President and Director May 17, 1995
/s/Douglas G. Hyde (Principal Executive Officer)
Douglas G. Hyde
Vice President, Chief Financial May 17, 1995
/s/Christopher L. Dutton Office & Treasurer
Christopher L. Dutton (Principal Financial Officer)
/s/Glenn J. Purcell Controller May 17, 1995
Glenn J. Purcell (Principal Accounting Officer)
/s/Thomas P. Salmon Chairman of the Board May 17, 1995
Thomas P. Salmon and Director
/s/Robert E. Boardman Director May 17, 1995
Robert E. Boardman
/s/Nordahl L. Brue Director May 17, 1995
Nordahl L. Brue
Director
William H. Bruett
/s/Merrill O. Burns Director May 17, 1995
Merrill O. Burns
/s/Lorraine E. Chickering Director May 17, 1995
Lorraine E. Chickering
/s/John V. Cleary Director May 17, 1995
John V. Cleary
/s/Richard I. Fricke Director May 17, 1995
Richard I. Fricke
/s/Euclid A. Irving Director May 17, 1995
Euclid A. Irving
/s/Martin L. Johnson Director May 17, 1995
Martin L. Johnson
/s/Ruth W. Page Director May 17, 1995
Ruth W. Page
Exhibit 23-d
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form S-3 of
our report dated January 31, 1995 included in Green Mountain Power
Corporation's Form 10-K for the year ended December 31, 1994 and to all
references to our firm included in this registration statement.
/s/ARTHUR ANDERSEN LLP
Boston, Massachusetts
May 17, 1995
Exhibit 1(a)
GREEN MOUNTAIN POWER CORPORATION
Secured Medium-Term Notes Due Not Less Than
9 Months from Date of Issue
DISTRIBUTION AGREEMENT
[ DATE ]
Dear Sirs:
Green Mountain Power Corporation, a Vermont corporation (the "Company"),
confirms its agreement with _________________ (herein referred to as the
"Agent") with respect to the issue and sale by the Company of its Secured
Medium-Term Notes described herein (the "Notes"). The Notes are to be
issued as an additional series of First Mortgage Bonds under the Company's
Indenture of First Mortgage and Deed of Trust, dated as of February 1,
1955, United States Trust Company of New York, as Trustee (the "Trustee"),
as heretofore amended and supplemented and as it will be further
supplemented by a supplemental indenture creating the Notes (said
Indenture of First Mortgage and Deed of Trust, as so supplemented and to
be supplemented, being hereinafter referred to as the "Indenture" and said
supplemental indenture being hereinafter referred to as the "Supplemental
Indenture," respectively). As of the date hereof, the Company has
authorized the issuance and sale of up to $000,000,000 aggregate principal
amount of Notes through or to the Agent pursuant to the terms of this
Agreement. It is understood, however, that the Company may from time to
time authorize the issuance of additional Notes and that such additional
Notes may be sold through or to the Agent pursuant to the terms of this
Agreement, all as though the issuance of such Notes were authorized as of
the date hereof.
This Agreement provides both for the sale of Notes by the Company directly
to purchasers, in which case the Agent will act as the agent of the
Company in soliciting Note purchases, and (as may from time to time be
agreed to by the Company and the Agent) to the Agent as principal for
resale to purchasers.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 33-00000) for the
registration of equity and debt securities, including the Notes, under the
Securities Act of 1933 (the "1933 Act") and the offering thereof from time
to time in accordance with Rule 415 of the rules and regulations of the
SEC under the 1933 Act (the "1933 Act Regulations"). Such registration
statement has been declared effective by the SEC and the Indenture has
been qualified under the Trust Indenture Act of 1939, as amended (the
"1939 Act"). Such registration statement (and any further registration
statements which may be filed by the Company for the purpose of
registering additional Notes and in connection with which this Agreement
is included or incorporated by reference as an exhibit) and the prospectus
constituting a part thereof, and any prospectus supplements relating to
the Notes, including all documents incorporated therein by reference
pursuant to Item 12 of Form S-3 under the 1933 Act (the "Incorporated
Documents"), as from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934 (the "1934 Act")
or the 1933 Act or otherwise, are referred to herein as the "Registration
Statement" and the "Prospectus", respectively, except that if any revised
prospectus shall be provided to the Agent by the Company for use in
connection with the offering of the Notes which is not required to be
filed by the Company pursuant to Rule 424(b) of the 1933 Act Regulations,
the term "Prospectus" shall refer to such revised prospectus from and
after the time it is first provided to the Agent for such use.
SECTION 1. Appointment as Agent.
(a) Appointment of Agent. Subject to the terms and conditions
stated herein and subject to the reservation by the Company of the right
to sell Notes directly on its own behalf, the Company hereby appoints the
Agent as its agent for the purpose of soliciting purchases of the Notes
from the Company by others and agrees that, except as otherwise
contemplated herein, whenever the Company determines to sell Notes
directly to the Agent as principal for resale to others, it will enter
into a Terms Agreement (hereafter defined) relating to such sale in
accordance with the provisions of Section 3(b) hereof. The Agent is
authorized to appoint sub-agents or to engage the services of any other
broker or dealer in connection with the offer or sale of the Notes. The
Company agrees that, during the period the Agent is acting as the
Company's agent hereunder, the Company will not contact or solicit
potential investors introduced to it by the Agent to purchase the Notes.
The Company may appoint, upon 10 days prior written notice to the Agent,
additional persons to serve as agent hereunder, but only if each such
additional person agrees to be bound by all of the terms of this Agreement
to the same extent as the Agent.
(b) Reasonable Efforts Solicitations; Right to Reject Offers.
Upon receipt of instructions from the Company, the Agent will use its
reasonable efforts to solicit purchases of such principal amount of the
Notes as the Company and such Agent shall agree upon from time to time
during the term of this Agreement, it being understood that the Company
shall not approve the solicitation of purchases of Notes in excess of the
amount which shall be authorized by the Company from time to time or in
excess of the principal amount of Notes registered pursuant to the
Registration Statement. The Agent will have no responsibility for
maintaining records with respect to the aggregate principal amount of
Notes sold, or of otherwise monitoring the availability of Notes for sale
under the Registration Statement. The Agent will communicate to the
Company, orally or in writing, each offer to purchase Notes, other than
those offers rejected by such Agent. The Agent shall have the right, in
its discretion reasonably exercised, to reject any proposed purchase of
Notes, as a whole or in part, and any such rejection shall not be deemed a
breach of such Agent's agreement contained herein. The Company may accept
or reject any proposed purchase of the Notes, in whole or in part. The
Agent will confirm in writing any offer accepted by the Company in
accordance with the Procedures established pursuant to Section 3(c)
hereof.
(c) Solicitations as Agent; Purchases as Principal. In
soliciting purchases of the Notes on behalf of the Company, the Agent
shall act solely as agent for the Company and not as principal. The Agent
shall make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has been
solicited by such Agent and accepted by the Company. The Agent shall not
have any liability to the Company in the event any such purchase is not
consummated for any reason, other than the gross negligence or wilful
misconduct of the Agent. The Agent shall not have any obligation to
purchase Notes from the Company as principal, but the Agent may agree from
time to time to purchase Notes as principal. Any such purchase of Notes
by the Agent as principal shall be made pursuant to a Terms Agreement in
accordance with Section 3(b) hereof.
(d) Reliance. The Company and the Agent agree that any Notes the
placement of which the Agent arranges shall be placed by the Agent, and
any Notes purchased by the Agent shall be purchased by the Agent, in
reliance on the representations, warranties, covenants and agreements of
the Company contained herein and on the terms and conditions and in the
manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to the Agent as of the
date hereof, as of the date of each acceptance by the Company of an offer
for the purchase of Notes (whether through the Agent as agent or to the
Agent as principal), as of the date of each delivery of Notes (whether
through the Agent as agent or to the Agent as principal) (the date of each
such delivery to the Agent as principal being hereafter referred to as a
"Settlement Date"), and as of any time that the Registration Statement or
the Prospectus shall be amended or supplemented (other than by an
amendment or supplement setting forth the price or prices, interest rate
or rates, redemption or repayment provisions and other terms of a
particular Note or Notes or relating solely to equity securities) or there
is filed with the SEC any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K relating exclusively
to the issuance of debt securities under the Registration Statement,
unless the Agent shall otherwise specify) (each of the times referenced
above being referred to herein as a "Representation Date") as follows:
(i) Due Incorporation and Qualification. The Company is a
corporation duly organized and validly existing in good standing
under the laws of the State of Vermont, and has the corporate power
and authority to own the property and to conduct the business which
it now owns and conducts, and neither the character of the properties
owned by it nor the nature of the business it transacts makes
necessary its licensing or qualification as a foreign corporation in
any state or jurisdiction other than Maine and Massachusetts.
(ii) Subsidiaries. Each of Green Mountain Propane Gas
Company and Mountain Energy, Inc. (collectively, the "Subsidiaries")
is a wholly-owned subsidiary of the Company and is a corporation duly
organized and validly existing in good standing in the jurisdiction
of its incorporation and has the corporate power and authority to own
the property and to conduct the business which it now owns and
conducts.
(iii) Registration Statement and Prospectus. At the
time the Registration Statement became effective, the Registration
Statement complied, and as of the applicable Representation Date will
comply, in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the SEC promulgated thereunder. The Registration
Statement, at the time it became effective, did not, and at each time
thereafter at which any amendment to the Registration Statement
becomes effective and as of each Representation Date, will not,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, as of the date
hereof does not, and as of each Representation Date will not, contain
an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by
the Agent expressly for use in the Registration Statement or
Prospectus.
(iv) Incorporated Documents. The Incorporated Documents
heretofore filed, when they were filed (or, if any amendment with
respect to any such document was filed, when such amendment was
filed), conformed in all material respects with the requirements of
the 1934 Act and the rules and regulations thereunder (the "1934 Act
Regulations"), any further Incorporated Documents so filed will, when
they are filed, conform in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations; no such
document when it was filed (or, if an amendment with respect to any
such document was filed, when such amendment was filed), contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; and no such further document, when
it is filed, will contain an untrue statement of a material fact or
will omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading.
(v) Accountants. The accountants, Arthur Andersen LLP, who
have certified or shall certify the financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus are independent public accountants within the meaning of
the 1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The financial statements,
together with their related notes, included or incorporated by
reference in the Registration Statement and the Prospectus, present
fairly the consolidated financial position and results of operations
of the Company and the Subsidiaries on the basis stated in the
Registration Statement at the respective dates or for the respective
periods to which they apply; such statements and related notes have
been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved,
except as disclosed therein.
(vii) Authorization and Validity of this Agreement, the
Indenture and the Notes. This Agreement has been duly authorized
and, upon execution and delivery by the Agent, will be a valid and
binding agreement of the Company, subject, however, to applicable
bankruptcy, insolvency, reorganization and similar laws of general
application relating to or affecting the rights and remedies of
creditors and by general principles of equity (regardless of whether
the Agreement is considered in a proceeding at law or in equity); the
Indenture has been duly authorized and constitutes a valid and
binding obligation of the Company enforceable in accordance with its
terms, except as the enforceability thereof may be limited by
(a) applicable bankruptcy, insolvency, reorganization and similar
laws of general application relating to or affecting the rights and
remedies of creditors and by general principles of equity (regardless
of whether the Indenture is considered in a proceeding at law or in
equity), and (b) laws of the States of Vermont and Maine and The
Commonwealth of Massachusetts which may affect the remedies provided
for therein but which do not render inadequate the remedies available
to the Trustee for the practical realization of the benefit of the
security intended to be afforded thereby; the Notes have been duly
and validly authorized for issuance, offer and sale pursuant to this
Agreement and, when issued, authenticated and delivered pursuant to
the provisions of this Agreement and the Indenture against payment of
the consideration therefor specified in the Prospectus or pursuant to
any Terms Agreement, the Notes will constitute legal, valid and
legally binding obligations of the Company enforceable against the
Company in accordance with their terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium
or other laws relating to or affecting enforcement of creditors'
rights generally or by general equity principles (regardless of
whether such enforceability is considered in a proceeding at law or
in equity); the Notes and the Indenture will conform in all material
respects to all statements relating thereto contained in the
Prospectus; and the Notes will be entitled to the benefits of the
Indenture.
(viii) Material Changes or Material Transactions. Except as
disclosed in the Registration Statement and the Prospectus,
subsequent to the respective dates as of which such information is
given in the Registration Statement and the Prospectus, neither the
Company nor either of the Subsidiaries has incurred or will have
incurred any material liability or obligation, direct or contingent,
or has entered into any material transaction, not in the ordinary
course of business, in either case which has resulted in a material
adverse change in the condition (financial or other), net worth or
results of operations of the Company and the Subsidiaries taken as a
whole and there has not been any material change in the capital stock
or long-term debt of the Company.
(ix) Legal Proceedings; Contracts. Except as set forth in
the Prospectus, there is not pending or, to the knowledge of the
Company, threatened, any action, suit or proceeding, to which the
Company or either of the Subsidiaries is a party, before or by any
court or governmental agency or body, which might result in any
material adverse change in the condition (financial or other),
business, prospects, net worth or results of operations of the
Company and the Subsidiaries taken as a whole, or might materially
and adversely affect the properties or assets of the Company and the
Subsidiaries taken as a whole; and there are no contracts or
documents of the Company which would be required to be filed as
exhibits to the Registration Statement or by the 1933 Act Regulations
which have not been so filed.
(x) No Conflict. The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will not result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust or
other agreement or instrument to which the Company is a party or by
which it or any of its property is bound, or of the Articles of
Association or by-laws of the Company, or any order, rule or
regulation applicable to the Company or any of its property of any
court or other governmental body.
(xi) Title to Property. The Company has title in fee simple,
subject only to permitted encumbrances as defined in the Indenture,
to all the real estate described or referred to in the Indenture as
being subject to the lien thereof, except (i) property heretofore
released from the lien of the Indenture in accordance with the terms
thereof, (ii) property held under leases and rights of way,
easements, riparian rights, flowage rights and property of a similar
character, and (iii) certain other properties, titles to which are
subject to reservations, encumbrances and minor defects in titles
such as are customarily encountered in the public utility business
and which do not materially interfere with their use by the Company;
and the Company has good and marketable title, subject only to
permitted encumbrances as defined in the Indenture, to the other
properties described or referred to in the Indenture as being subject
to the lien thereof, except property heretofore released from the
lien of the Indenture in accordance with the terms thereof.
(xii) Property Subject to the Lien of the Indenture, etc.
(a) The physical properties and franchises described in, and
subject to the lien of, the Indenture include all the physical
properties and franchises owned by the Company on the date
hereof and used or useful in its public utility business, except
(i) such property as may have been duly released from the lien
of the Indenture and (ii) certain other classes of property
expressly excepted in the Indenture, and such physical
properties and franchises will include substantially all of the
physical properties and franchises from which the consolidated
operating revenues of the Company set forth in the income
statements referred to in (vi) above were derived.
(b) The Indenture, subject only to permitted encumbrances as
defined in the Indenture, constitutes a valid, direct first
mortgage lien upon the real and personal property described or
referred to in the Indenture as owned by the Company (other than
classes of property expressly excepted in the Indenture and
property heretofore released from the lien of the Indenture in
accordance with the terms thereof), which include all of the
physical properties and franchises of the Company used or useful
in its public utility business; and all physical properties and
franchises of the Company used or useful in its public utility
business (other than those of the character not subject to the
lien of the Indenture as aforesaid) acquired by the Company
after the respective dates of the original Indenture and each
supplemental indenture have become, or will upon such
acquisition become, subject to the lien thereof, subject,
however, to permitted encumbrances and to liens, if any,
existing or placed thereon by the Company at the time of the
acquisition thereof by the Company and subject, in the case of
after acquired properties located in municipalities or counties
in which the Indenture has not been recorded at or prior to the
time of acquisition, to the rights of holders of liens perfected
on such properties prior to the recording of the Indenture in
such municipalities or counties.
(xiii) Franchises, Permits, Easements and Consents. Each of
the Company and the Subsidiaries owns or possesses all franchises,
permits, patents, trademarks, service marks, trade names, copyrights,
licenses and authorizations, and all other operating rights,
consents, authorizations and orders (collectively, "Franchises"), and
all rights with respect to the foregoing, necessary for the conduct
of its business as now conducted; all of such Franchises are valid
and subsisting and contain no unduly burdensome restriction,
condition or limitation; and neither the Company nor either of the
Subsidiaries is in default in any material respect in respect
thereof.
(xiv) Public Utility Holding Company Act. The Company has
timely filed in good faith with the SEC exemption statements under
Section 3(a)(2) of the Public Utility Holding Company Act of 1935 and
the SEC has not acted to terminate the exemption from such Act
thereby obtained.
(xv) Governmental Consent. No consent, approval or
authorization of, or declaration or filing with, any governmental
authority is required for the valid execution and delivery of this
Agreement or the Supplemental Indenture or the valid offer, issue,
sale and delivery of the Notes pursuant to this Agreement and the
Supplemental Indenture except (a) the issue of an order by the Public
Service Board of the State of Vermont (the "Board") consenting to the
issuance and sale of the Notes, (b) the recording and filing of the
Supplemental Indenture and financing statements pursuant to the
Indenture and (c) the filing with the Department of Public Utilities
of the Commonwealth of Massachusetts (the "MDPU") and the Public
Utilities Commission of the State of Maine (the "MPUC") of a
certification (the "Certifications") by the Board of the Board's
regulatory jurisdiction concerning financing of the Company. An
order in Docket No. 5820, dated ___________ (the "Order"), consenting
to the issuance and sale of the Notes has been issued by the Board,
the Company has delivered to you complete and correct copies of such
order and all supplements, amendments or other filings to or with the
Order, the Order is in full force and effect, no proceeding has been
instituted to review, suspend, limit, restrict or revoke the Order
and the Company has provided you with a copy of a letter by the
Department of Public Service of the State of Vermont (the "VDPS")
waiving the right of the VDPS to institute any such proceeding. The
Certifications have been filed with the MDPU and the MPUC and are in
full force and effect.
(b) Additional Certifications. Any certificate signed by any
director or officer of the Company and delivered to the Agent or to
counsel for the Agent in connection with an offering of Notes or the sale
of Notes to the Agent as principal shall be deemed a representation and
warranty by the Company to the Agent as to the matters covered thereby on
the date of such certificate and at each Representation Date subsequent
thereto.
SECTION 3. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. On the basis of the
representations and warranties herein contained, but subject to the terms
and conditions herein set forth, the Agent agrees, as the agent of the
Company, to use its reasonable efforts to solicit offers to purchase the
Notes upon the terms and conditions set forth herein and in the
Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agent, as agent,
commencing at any time for any period of time or permanently. Upon
receipt of instructions from the Company, such Agent will forthwith
suspend solicitation of purchases from the Company until such time as the
Company has advised such Agent that such solicitation may be resumed.
The Company agrees to pay the Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of
each Note sold by the Company as a result of a solicitation made by such
Agent as set forth in Schedule A hereto. The Agent may reallow any
portion of the commission payable pursuant hereto to dealers or purchasers
in connection with the offer and sale of any Notes.
The purchase price, interest rate, maturity date and other terms of the
Notes shall be agreed upon by the Company and the Agent and set forth in a
pricing supplement to the Prospectus to be prepared following each
acceptance by the Company of an offer for the purchase of Notes. Except
as may be otherwise provided in such supplement to the Prospectus, the
Notes will be issued in denominations of $1,000 and integral multiples
thereof. All Notes sold through the Agent as agent will be sold at 100%
of their principal amount unless otherwise agreed to by the Company and
such Agent.
(b) Purchases as Principal. Each sale of Notes to the Agent as
principal shall be made in accordance with the terms contained herein and
(unless the Company and such Agent shall otherwise agree) pursuant to a
separate agreement which will provide for the sale of such Notes to, and
the purchase and reoffering thereof by, such Agent. Each such separate
agreement (which may be an oral agreement, which shall be confirmed in
writing as soon as reasonably practicable thereafter) between such Agent
and the Company is herein referred to as a "Terms Agreement". Unless the
context otherwise requires, each reference contained herein to "this
Agreement" shall be deemed to include any applicable Terms Agreement
between the Company and the Agent. Each such Terms Agreement shall be
with respect to such information (as applicable) as is specified in
Exhibit A hereto. The Agent's commitment to purchase Notes as principal
pursuant to any Terms Agreement or otherwise shall be deemed to have been
made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions herein
set forth. Each Terms Agreement shall specify the principal amount of
Notes to be purchased by the Agent pursuant thereto, the price to be paid
to the Company for such Notes (which, if not so specified in a Terms
Agreement, shall be at a discount equivalent to the applicable commission
set forth in Schedule A hereto), the time and place of delivery of and
payment for such Notes, any provisions relating to rights of, and default
by purchasers acting together with the Agent in the reoffering of the
Notes, and such other provisions (including further terms of the Notes) as
may be mutually agreed upon. The Agent may utilize a selling or dealer
group in connection with the resale of the Notes purchased. Such Terms
Agreement shall also specify the requirements for the officers'
certificate, opinions of counsel and comfort letter pursuant to Sections
7(b), 7(c) and 7(d) hereof and the stand-off agreement pursuant to Section
4(k) hereof.
(c) Administrative Procedures. Administrative procedures with
respect to the sale of Notes shall be agreed upon from time to time by the
Agent and the Company (the "Procedures"). The Agent and the Company agree
to perform the respective duties and obligations specifically provided to
be performed by them in the Procedures.
SECTION 4. Covenants of the Company.
The Company covenants with the Agent as follows:
(a) Notice of Certain Events. The Company will notify the Agent
immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the SEC for filing of any supplement
to the Prospectus or any Incorporated Document, (iii) of the receipt of
any comments from the SEC with respect to the Registration Statement or
the Prospectus, (iv) of any request by the SEC for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (v) of the issuance by the SEC of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make
every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Notice of Certain Proposed Filings. The Company will give
the Agent notice of its intention to file or prepare any additional
registration statement with respect to the registration of additional
Notes, any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, whether by the filing of documents pursuant
to the 1934 Act, the 1933 Act or otherwise, and will furnish the Agent
with copies of any such amendment or supplement or other documents
proposed to be filed or prepared a reasonable time in advance of such
proposed filing or preparation, as the case may be, and will not file any
such amendment or supplement or other documents in a form to which the
Agent or counsel for the Agent shall reasonably object.
(c) Copies of the Registration Statement and the Prospectus. The
Company will furnish to the Agent, without charge (i) two signed copies of
the registration statement as originally filed with the Commission and of
each amendment thereto, including financial statements and all exhibits to
the registration statement, (ii) such number of conformed copies of the
registration statement as originally filed and of each amendment thereto,
but without exhibits, as the Agent reasonably may request, and (iii) two
copies of the Incorporated Documents and the exhibits to the Incorporated
Documents.
(d) Preparation of Pricing Supplements. The Company will
prepare, with respect to any Notes to be sold through or to the Agent
pursuant to this Agreement, a Pricing Supplement with respect to such
Notes in a form previously approved by such Agent and will file such
Pricing Supplement pursuant to Rule 424(b)(3) under the 1933 Act not later
than the close of business of the SEC on the fifth business day after the
date on which such Pricing Supplement is first used.
(e) Revisions of Prospectus -- Material Changes. Except as
otherwise provided in subsection (l) of this Section, if at any time
during the term of this Agreement any event shall occur or condition exist
as a result of which it is necessary, in the reasonable opinion of
counsel for the Agent or counsel for the Company, to further amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, immediate notice shall be given,
and confirmed in writing, to the Agent to cease the solicitation of offers
to purchase the Notes in the Agent's capacity as agent and to cease sales
of any Notes the Agent may then own as principal pursuant to a Terms
Agreement, and the Company will promptly prepare and file with the SEC
such amendment or supplement, whether by filing documents pursuant to the
1934 Act, the 1933 Act or otherwise, as may be necessary to correct such
untrue statement or omission or to make the Registration Statement and
Prospectus comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial Information.
Except as otherwise provided in subsection (l) of this Section, on or
prior to the date on which there shall be released to the general public
interim financial statement information related to the Company with
respect to each of the first three quarters of any fiscal year or
preliminary financial statement information with respect to any fiscal
year, the Company shall furnish such information to the Agent.
(g) Prospectus Revisions -- Audited Financial Information.
Except as otherwise provided in subsection (l) of this Section, on or
prior to the date on which there shall be released to the general public
financial information included in or derived from the audited financial
statements of the Company for the preceding fiscal year, the Company shall
cause the Registration Statement and the Prospectus to be amended, whether
by the filing of documents pursuant to the 1934 Act, the 1933 Act or
otherwise, to include or incorporate by reference such audited financial
statements and the report or reports, and consent or consents to such
inclusion or incorporation by reference, of the independent accountants
with respect thereto, as well as such other information and explanations
as shall be necessary for an understanding of such financial statements or
as shall be required by the 1933 Act or the 1933 Act Regulations.
(h) Earnings Statements. The Company will make generally
available to its security holders a consolidated earnings statement, which
need not be audited, covering a twelve-month period commencing after the
effective date of the Registration Statement and ending not later than 15
months thereafter, as soon as practicable after the end of such period,
which consolidated earnings statement shall satisfy the provisions of
Section 11(a) of the 1933 Act.
(i) Blue Sky Qualifications. The Company will cooperate with the
Agent and with counsel for the Agent in connection with the registration
or qualification of the Notes for offering and sale by dealers under the
securities or Blue Sky laws of such jurisdictions as the Agent may
designate and will file such consents to service of process or other
documents necessary or appropriate in order to effect such registration or
qualification; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to file any consent to service of process or to submit to any
requirements which it deems unduly burdensome.
(j) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file
promptly all documents required to be filed with the SEC pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act.
(k) Stand-Off Agreement. If required pursuant to the terms of a
Terms Agreement, between the date of any Terms Agreement and the
Settlement Date with respect to such Terms Agreement, the Company will
not, without the Agent's prior consent, which consent shall not be
unreasonably withheld, offer or sell, or enter into any agreement to sell,
any debt securities of the Company (other than the Notes that are to be
sold pursuant to such Terms Agreement, short-term debt incurred under the
Company's lines of credit or revolving credit arrangements and commercial
paper in the ordinary course of business).
(l) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsections (e), (f) or (g) of
this Section or Section 7 during any period from the time (i) the Agent
shall have suspended solicitation of purchases of the Notes in their
capacity as agent pursuant to a request from the Company and (ii) the
Agent shall not then hold any Notes as principal purchased pursuant to a
Terms Agreement, to the time the Company shall determine that solicitation
of purchases of the Notes should be resumed or shall subsequently enter
into a new Terms Agreement with the Agent.
(m) Condition to Agency Transactions. Any person who has agreed
to purchase Notes as the result of an offer to purchase solicited by the
Agent shall have the right to refuse to purchase and pay for such Notes
if, on the related settlement date fixed pursuant to the Procedures, (i)
there has been, since the date on which such person agreed to purchase the
Notes (the "Trade Date"), or since the respective dates as of which
information is given in the Registration Statement, any material change in
the capital stock, short-term debt or long-term debt of the Company, or
any material adverse change in the condition (financial or other), net
worth or results of operations of the Company and the Subsidiaries taken
as a whole, or (ii) there shall have occurred any outbreak or escalation
of hostilities or other international or domestic calamity, crisis or
change in political, financial or economic conditions the effect of which
is such as to make it, in the judgment of such person, impracticable or
inadvisable to purchase the Notes, or (iii) if trading in securities
generally on the New York Stock Exchange shall have been suspended or
materially limited or if a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New
York authorities, or (iv) the rating assigned by any nationally recognized
securities rating agency to any debt securities of the Company as of the
Trade Date shall have been lowered since that date or if any such rating
agency shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any debt
securities of the Company.
SECTION 5. Conditions of Obligations.
The obligations of the Agent as agent to solicit offers to purchase the
Notes of the Company, the obligations of any purchasers of the Notes sold
through the Agent as agent, and any obligation of the Agent to purchase
Notes pursuant to a Terms Agreement or otherwise will be subject to the
accuracy of the representations and warranties on the part of the Company
herein and to the accuracy of the statements of the Company's officers
made in any certificate furnished pursuant to the provisions hereof, to
the performance and observance by the Company of all its covenants and
agreements herein contained and to the following additional conditions
precedent:
(a) Legal Opinions. On the date hereof, the Agent shall have
received the following legal opinions, dated as of the date hereof,
addressed to the Agent and in form and substance satisfactory to the
Agent:
(1) Opinion of Company Special Counsel. The opinion of
Hunton & Williams, Special Counsel to the Company, to the effect
that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Vermont, and has all corporate power and
authority necessary to own its properties and carry on the
business which it is presently conducting as described in the
Registration Statement.
(ii) The Registration Statement has become effective
under the Act, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or are pending or contemplated
under the 1933 Act; the Indenture has been qualified under the
1939 Act; any required filing of the Prospectus pursuant to Rule
424(b) has been made in accordance with Rule 424(b); the
Registration Statement and the Prospectus and any amendment or
supplement thereto comply as to form in all material respects
with the requirements of the 1933 Act and the 1933 Act
Regulations (except that such counsel need express no opinion as
to the financial statements and other financial and statistical
data contained therein); each of the Incorporated Documents
comply as to form in all material respects with the requirements
of the 1934 Act and the 1934 Act Regulations of the SEC
thereunder (except that such counsel need express no opinion as
to the financial statements and other financial and statistical
data contained therein); and the statements set forth in the
Company's Annual Report of Form 10-K for the year ended December
31, 1994 with respect to the Public Utility Holding Company Act
of 1935 under "State and Federal Regulation", as to matters of
law and legal conclusions, are true and correct.
(iii) They do not know of any legal or governmental
proceedings pending or threatened to which the Company is a
party, or of which property of the Company is the subject, of a
character required to be disclosed in the Registration Statement
which are not disclosed and properly described therein; and they
do not know of any contracts or other documents of a character
required to be filed as exhibits to the Registration Statement
which are not so filed, or any contracts or other documents of a
character required to be disclosed in the Registration Statement
which are not disclosed and properly summarized therein.
(iv) This Agreement has been duly authorized, executed
and delivered by the Company; and the performance of this
Agreement and the Supplemental Indenture and the consummation of
the transactions herein and therein contemplated will not result
in a breach of any of the terms or provisions of, or constitute
a default under, the Articles of Association or by-laws of the
Company, or any indenture, mortgage, deed of trust or other
agreement or instrument known to such counsel to which the
Company is a party or by which it or its properties may be bound
or affected.
(v) The Indenture, including the Supplemental
Indenture, has been duly authorized by all necessary corporate
action on the part of the Company and has been duly executed and
delivered by the Company. The Indenture constitutes a legal,
valid and binding instrument, enforceable in accordance with its
terms, except as the enforceability thereof may be limited (a)
as set forth in paragraph (vi) below and (b) by laws of the
States of Vermont and Maine and the Commonwealth of
Massachusetts which may affect the remedies provided for therein
but which do not in the opinion of such counsel render
inadequate the remedies available to the Trustee for the
practical realization of the benefit of the security intended to
be afforded thereby.
(vi) The Notes have been duly authorized for issuance,
offer and sale pursuant to this Agreement and, when issued,
authenticated and delivered pursuant to the provisions of this
Agreement and the Indenture against payment of the consideration
therefor specified in the Prospectus or pursuant to any Terms
Agreement, will constitute legal, valid and binding obligations
of the Company, enforceable against the Company in accordance
with their terms, except that such enforceability may be limited
by applicable bankruptcy, insolvency, fraudulent transfer,
reorganization and similar laws of general application relating
to or affecting the rights and remedies of creditors and by
general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity). The Notes will be secured equally and ratably with all
other bonds issued under the Indenture (except insofar as any
sinking and improvement fund, depreciation fund or other fund
established in accordance with the provisions of the Indenture
may afford additional security for the bonds of any specific
series) and are entitled to the benefit of the security of the
Indenture.
(vii) The Indenture and the Notes conform to the
statements concerning them in the Registration Statement and the
Prospectus.
(viii) No consent, approval or authorization of, or
declaration or filing with, any governmental authority is
required for the valid execution and delivery of this Agreement
or the Supplemental Indenture or the valid offer, issue, sale
and delivery of the Notes pursuant to this Agreement and
Supplemental Indenture except (a) the issue of an order by the
Board consenting to the issuance and sale of the Notes, (b) the
recording and filing of the Supplemental Indenture and financing
statements pursuant to the Indenture and (c) the filing with the
MDPU and the MPUC of a certification by the Board of its
regulatory jurisdiction concerning financing of the Company.
(2) Opinion of Company General Counsel. The opinion of
Peter H. Zamore, General Counsel of the Company, covering the matters
referred to in subparagraph (1) under the subheadings (iii) to (vii),
inclusive, and to the further effect:
(i) Each of the Company, Green Mountain Propane Gas
Company and Mountain Energy, Inc. has been duly incorporated and
is validly existing as a corporation in good standing under the
laws of the State of Vermont, and has all corporate and other
power and authority necessary to own its properties and carry on
the business which it is presently conducting as described in
the Registration Statement.
(ii) The statements set forth in the Prospectus under
"Description of the New Bonds" and "Description of the Notes,"
as to matters of law and legal conclusions governed by Vermont
law, are true and correct.
(iii) The statements set forth in the Company's Annual
Report on Form 10-K for the year ended December 31, 1994 under
"State and Federal Regulation" (other than statements made with
respect to the Public Utility Holding Company Act of 1935),
under "Recent Rate Developments" and under "Legal Proceedings",
as to matters of law and legal conclusions, are true and
correct.
(iv) The Company has title in fee simple, subject only
to permitted encumbrances as defined in the Indenture, to all
the real estate described or referred to in the Indenture as
being subject to the lien thereof, except (i) property
heretofore released from the lien of the Indenture in accordance
with the terms thereof, (ii) property held under leases and
rights-of-way, easements, riparian rights, flowage rights and
property of similar character, (iii) certain other properties,
titles to which are subject to reservations, encumbrances and
minor defects in titles to certain real properties such as are
customarily encountered in the public utility business and which
do not, in my opinion, materially interfere with their use by
the Company; the Company has good and marketable title, subject
only to permitted encumbrances as defined in the Indenture, to
the other properties described or referred to in the Indenture
as being subject to the lien thereof, except property heretofore
released from the lien of the Indenture in accordance with the
terms thereof; and the descriptions of and references to such
real estate and other properties in the Indenture are legally
sufficient for the purposes thereof.
(v) The Indenture has been recorded and/or filed in
all places where such recording or filing is required in order
to preserve and protect the lien of the Indenture upon the
properties covered thereby and no further recording or
rerecording, filing or refiling is necessary to preserve and
protect the lien of the Indenture except for the filing at five-
year intervals of continuation statements under the provisions
of the Uniform Commercial Code of The Commonwealth of
Massachusetts; and the Indenture, subject only to permitted
encumbrances as defined in the Indenture, constitutes a valid,
direct first mortgage lien upon the real and personal property
described or referred to in the Indenture as owned by the
Company (other than classes of property expressly excepted in
the Indenture and property heretofore released from the lien of
the Indenture in accordance with the terms thereof), which
include all of the physical properties and franchises of the
Company used or useful in its public utility business; and all
physical properties and franchises of the Company used or useful
in its public utility business (other than those of the
character not subject to the lien of the Indenture as aforesaid)
acquired by the Company after the respective dates of the
original Indenture and each supplemental indenture have become,
or will upon such acquisition become, subject to the lien
thereof, subject, however, to permitted encumbrances and to
liens, if any, existing or placed thereon by the Company at the
time of the acquisition thereof by the Company and subject, in
the case of after acquired properties located in municipalities
or counties in which the Indenture has not been recorded at or
prior to the time of acquisition, to the rights of holders of
liens perfected on such properties prior to the recording of the
Indenture in such municipalities or counties (with such other
qualifications and exceptions as may be agreed upon by the Agent
and such counsel).
(vi) All recording fees, charges and taxes applicable
to or in connection with the recording of the Indenture have
been paid and any Federal or state taxes required in connection
with the issuance and sale to you of the Notes being purchased
by you have been paid.
(vii) No consent, approval or authorization of, or
declaration or filing with, any governmental authority is
required for the valid execution and delivery of this Agreement
or the Supplemental Indenture or the valid offer, issue, sale
and delivery of the Notes pursuant to this Agreement and
Supplemental Indenture except (a) the issue of an order by the
Board consenting to the issuance and sale of the Notes, (b) the
recording and filing of the Supplemental Indenture and financing
statements pursuant to the Indenture and (c) the filing with the
MDPU and the MPUC of a certification by the Board of its
regulatory jurisdiction concerning financing of the Company.
Such order has been issued by such Board, such order is in full
force and effect and no proceeding has been instituted to
review, suspend, limit, restrict or revoke such order. Such
certifications have been filed with the MDPU and the MPUC and
are in full force and effect.
(3) Opinion of Counsel to the Agent. The opinion of Reid &
Priest LLP, Counsel to the Agent, covering the matters referred to in
subparagraph (1) under the subheadings (ii), (iv)(as to the first
clause thereof), (vi) and (vii) above and such other related matters
as the Agent may request.
(4) In giving their respective opinions required by
subsection (a)(1), (a)(2) and (a)(3) of this Section, Counsel shall
each additionally state that nothing has come to his or their
attention that would lead him or them to believe that the
Registration Statement, at the time it became effective, and if an
amendment to the Registration Statement or an Annual Report on Form
10-K has been filed by the Company with the SEC subsequent to the
effectiveness of the Registration Statement, then at the time such
amendment became effective or at the time of the most recent such
filing, and at the date hereof, or (if such opinion is being
delivered in connection with a Terms Agreement pursuant to Section
3(b) hereof) at the date of any Terms Agreement and at the Settlement
Date with respect thereto, as the case may be, contains or contained
an untrue statement of a material fact or omits or omitted to state a
material fact required to be stated therein or necessary in order to
make the statements therein not misleading or that the Prospectus, as
amended or supplemented at the date hereof, or (if such opinion is
being delivered in connection with a Terms Agreement pursuant to
Section 3(b) hereof) at the date of any Terms Agreement and at the
Settlement Date with respect thereto, as the case may be, contains an
untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion with
respect to the financial statements and the notes thereto and the
schedules and other financial and statistical data included in the
Registration Statement or the Prospectus or any Incorporated
Document).
(5) In giving their respective opinions required by
subsection (a)(1), (a)(2) and (a)(3) of this Section, Counsel may
rely, as to matters of Maine law, upon an opinion of Verrill & Dana
and, as to matters of Massachusetts law, upon an opinion of Bulkley,
Richardson and Gelinas, each addressed to the Agent and reasonably
satisfactory in form and substance to Counsel to the Agent. In
addition, as to matters of Vermont law, Hunton & Williams and Reid &
Priest LLP may rely upon the opinion of Peter H. Zamore, Esq.
(b) Officers' Certificate. At the date hereof the Agent shall
have received a certificate or certificates, of the Chairman of the Board
or the President or the Executive Vice President and the Vice President,
Chief Financial Officer and Treasurer, or the Secretary of the Company to
the effect that, to the best of their knowledge, based on a reasonable
investigation:
(i) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for the
purpose have been instituted or are pending or contemplated under the
Act;
(ii) Neither the Registration Statement nor the Prospectus,
as the same may have been amended or supplemented, contains any
untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading; and, since the effective date of
the Registration Statement there has occurred no event required to be
set forth in an amended or supplemented Prospectus which has not been
so set forth;
(iii) Except as contemplated in the Prospectus, subsequent
to the respective dates as of which information is given in the
Registration Statement and the Prospectus, neither the Company or
either of the Subsidiaries has not incurred any material liabilities
or obligations, direct or contingent, or entered into any material
transaction, not in the ordinary course of business, in either case
which has resulted in a material adverse change in the condition
(financial or other) or results of operations of the Company and the
Subsidiaries taken as a whole and there has not been any material
change in the capital stock or long-term debt of the Company;
(iv) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, the Company has not sustained any loss or damage to its
properties which (considering them as a whole) is material, whether
or not insured; and
(v) The representations and warranties of the Company in
this Agreement are true and correct, as if made at and as of the date
of such certificate; and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the date of such certificate.
(c) Comfort Letter. On the date hereof, the Agent shall have
received a letter from Arthur Andersen LLP dated as of the date hereof and
in form and substance satisfactory to the Agent, to the effect that:
(i) They are independent public accountants with respect to
the Company and its subsidiaries within the meaning of the 1933 Act
and the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements
and supporting schedules of the Company and its subsidiaries examined
by them and included or incorporated by reference in the Registration
Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations with respect to registration statements on Form S-3 and
the 1934 Act and the 1934 Act Regulations.
(iii) They have performed specified procedures, not
constituting an audit, including a reading of the latest available
interim consolidated financial statements of the Company and its
indicated subsidiaries, a reading of the minute books of the Company
and such subsidiaries since the end of the most recent fiscal year
with respect to which an audit report has been issued, inquiries of
and discussions with certain officials of the Company and such
subsidiaries responsible for financial and accounting matters with
respect to the unaudited consolidated financial statements included
in the Registration Statement and Prospectus and the latest available
interim unaudited consolidated financial statements of the Company
and its subsidiaries, and such other inquiries and procedures as may
be specified in such letter, and on the basis of such inquiries and
procedures nothing came to their attention that caused them to
believe that: (A) the unaudited consolidated financial statements of
the Company and its subsidiaries included in the Registration
Statement and Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the 1934 Act
and the 1934 Act Regulations or were not fairly presented in
conformity with generally accepted accounting principles in the
United States applied on a basis substantially consistent with that
of the audited consolidated financial statements included therein, or
(B) at a specified date not more than five days prior to the date of
such letter, there was any change in the consolidated capital stock
or any increase in consolidated long-term debt of the Company and its
subsidiaries or any decrease in the consolidated net assets of the
Company and its subsidiaries, in each case as compared with the
amounts shown on the most recent consolidated balance sheet of the
Company and its subsidiaries included in the Registration Statement
and Prospectus or, during the period from the date of such balance
sheet to a specified date not more than five days prior to the date
of such letter, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated revenues
or net income of the Company and its subsidiaries, except in each
such case as set forth in or contemplated by the Registration
Statement and Prospectus or except for such exceptions enumerated in
such letter as shall have been agreed to by the Agent and the
Company.
(iv) In addition to the examination referred to in their
report included or incorporated by reference in the Registration
Statement and the Prospectus, and the limited procedures referred to
in clause (iii) above, they have carried out certain other specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included or
incorporated by reference in the Registration Statement and
Prospectus and which are specified by the Agent, and have found such
amounts, percentages and financial information to be in agreement
with the relevant accounting, financial and other records of the
Company and its subsidiaries identified in such letter.
(d) Other Documents. On the date hereof and on each Settlement
Date with respect to any applicable Terms Agreement, Counsel to the Agent
shall have been furnished with such documents and opinions as such counsel
may reasonably require for the purpose of enabling such Counsel to pass
upon the issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any
of the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of Notes as herein contemplated
shall be satisfactory in form and substance to the Agent and to Counsel to
the Agent.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement (or, at the option of
the Agent, any applicable Terms Agreement) may be terminated by the Agent
by notice to the Company at any time and any such termination shall be
without liability of any party to any other party, except that the
covenant regarding provision of an earnings statement set forth in Section
4(h) hereof, the indemnity and contribution agreement set forth in
Sections 8 and 9 hereof, the provisions concerning payment of expenses
under Section 10 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery of Section 11 hereof and the
provisions set forth in Section 15 hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold through the Agent.
Delivery of Notes sold through the Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against
payment therefor in immediately available funds. In the event that a
purchaser shall fail either to accept delivery of or to make payment for a
Note on the date fixed for settlement, the Agent shall promptly notify the
Company and deliver the Note to the Company, and, if the Agent has
theretofore paid the Company for such Note, the Company will promptly
return such funds to the Agent. If such failure occurred for any reason
other than default by the Agent in the performance of its obligations
hereunder, the Company will reimburse the Agent on an equitable basis for
its loss of the use of the funds for the period such funds were credited
to the Company's account.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with the Agent that:
(a) Reaffirmation of Representations and Warranties. Each
acceptance by the Company of an offer for the purchase of Notes, and each
delivery of Notes to the applicable Agent pursuant to a Terms Agreement,
shall be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement and in any
certificate theretofore delivered to the Agent pursuant hereto are true
and correct at the time of such acceptance or sale, as the case may be,
and an undertaking that such representations and warranties will be true
and correct at the time of delivery to the purchaser or his agent, or to
the Agent, of the Note or Notes relating to such acceptance or sale, as
the case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to each
such time).
(b) Subsequent Delivery of Certificates. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement setting forth the price or
prices, interest rate or rates, redemption or repayment provisions and
other terms of a particular Note or Notes, and, unless the Agent shall
otherwise specify, other than by an amendment or supplement which relates
exclusively to an offering of debt securities other than the Notes or an
offering of equity securities) or there is filed with the SEC any document
incorporated by reference into the Prospectus (other than any Current
Report on Form 8-K relating exclusively to the issuance of debt securities
under the Registration Statement, unless the Agent shall otherwise
specify) or (if required pursuant to the terms of a Terms Agreement) the
Company sells Notes to the Agent pursuant to a Terms Agreement, the
Company shall furnish or cause to be furnished to the Agent forthwith a
certificate dated the date of filing with the SEC of such supplement or
document, the date of effectiveness of such amendment, or the date of
delivery of Notes pursuant to a Terms Agreement, as the case may be, in
form reasonably satisfactory to the Agent to the effect that the
statements contained in the certificate referred to in Section 5(b) hereof
which was last furnished to the Agent is true and correct in all material
respects at the time of such amendment, supplement, filing or delivery, as
the case may be, as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred
to in said Section 5(b), modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement setting forth the price or
prices, interest rate or rates, redemption or repayment provisions and
other terms of a particular Note or Notes or solely for the inclusion of
additional financial information, and, unless the Agent shall otherwise
specify, other than by an amendment or supplement which relates
exclusively to an offering of debt securities other than the Notes or an
offering of equity securities) or there is filed with the SEC any document
incorporated by reference into the Prospectus (other than any Current
Report on Form 8-K or Quarterly Report on Form 10-Q, unless the Agent
shall otherwise specify), or (if required pursuant to the terms of a Terms
Agreement) the Company sells Notes to the Agent pursuant to a Terms
Agreement, the Company shall furnish or cause to be furnished forthwith to
the Agent and to Counsel to the Agent the written opinions of Counsel to
the Company referred to in Sections 5(a)(1) and (2) hereof, or other
counsel reasonably satisfactory to the Agent dated the date of filing with
the SEC of such supplement or document, the date of effectiveness of such
amendment, or the date of delivery of Notes pursuant to a Terms Agreement,
as the case may be, in form and substance reasonably satisfactory to the
Agent, of the same tenor as the opinions referred to in Section 5(a)(1)
and (2) hereof, but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such opinion; or, in lieu of such opinion, Counsel last
furnishing such opinions to the Agent shall furnish the Agent with letters
to the effect that the Agent may rely on such last opinion to the same
extent as though it was dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented
to the time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented
to include additional financial information or there is filed with the SEC
any document incorporated by reference into the Prospectus which contains
additional financial information or (if required pursuant to the terms of
a Terms Agreement) the Company sells Notes to the agent pursuant to a
Terms Agreement, the Company shall cause Arthur Andersen LLP forthwith to
furnish the Agent a letter, dated the date of the effectiveness of such
amendment or supplement or the date of the filing of such document with
the SEC, or the date of such sale, as the case may be, in form
satisfactory to the Agent, of the same tenor as the portions of the letter
referred to in clauses (i) and (ii) of Section 5(c) hereof but modified to
relate to the Registration Statement and Prospectus, as amended and
supplemented to the date of such letter, and of the same general tenor as
the portions of the letter referred to in clauses (iii) and (iv) of said
Section 5(c) with such changes as may be necessary to reflect changes in
the financial statements and other information derived from the accounting
records of the Company; provided, however, that if the Registration
Statement or the Prospectus is amended or supplemented solely to include
financial information as of and for a fiscal quarter, Arthur Andersen LLP
may limit the scope of such letter to the unaudited financial statements
included in such amendment or supplement unless any other information
included therein of an accounting, financial or statistical nature is of
such a nature that, in the reasonable judgment of the Agent, such letter
should cover such other information.
SECTION 8. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Agent
and each person, if any, who controls any Underwriter within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act from and
against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation) arising out of or based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus or in any
amendment or supplement thereto, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any untrue statement or omission
or alleged untrue statement or omission which has been made therein or
omitted therefrom in reliance upon and in conformity with the information
relating to the Agent furnished in writing to the Company by the Agent
expressly for use in connection therewith.
(b) If any action, suit or proceeding shall be brought against
the Agent or any person controlling the Agent in respect of which
indemnity may be sought against the Company, the Agent or such controlling
person shall promptly notify the Company and the Company shall assume the
defense thereof, including the employment of counsel and payment of all
fees and expenses. The Agent or any such controlling person shall have
the right to employ separate counsel in any such action, suit or
proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of the Agent or such
controlling person unless (i) the Company has agreed in writing to pay
such fees and expenses, (ii) the Company has failed to assume the defense
and employ counsel, or (iii) the named parties to any such action, suit or
proceeding (including any impleaded parties) include both the Agent or
such controlling person and the Company and the Agent or such controlling
person shall have been advised by its counsel that representation of such
indemnified party and the Company by the same counsel would be
inappropriate under applicable standards of professional conduct (whether
or not such representation by the same counsel has been proposed) due to
actual or potential differing interests between them (in which case the
Company shall not have the right to assume the defense of such action,
suit or proceeding on behalf of such Underwriter or such controlling
person). It is understood, however, that the Company shall, in connection
with any one such action, suit or proceeding or separate but substantially
similar or related actions, suits or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable
for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for the Agent and
such controlling persons not having actual or potential differing
interests among themselves, which firm shall be designated in writing by
the Agent, and that all such fees and expenses shall be reimbursed as they
are incurred. The Company shall not be liable for any settlement of any
such action, suit or proceeding effected without its written consent, but
if settled with such written consent, or if there be a final judgment for
the plaintiff in any such action, suit or proceeding, the Company agrees
to indemnify and hold harmless the Agent, to the extent provided in the
preceding paragraph, and any such controlling person from and against any
loss, claim, damage, liability or expense by reason of such settlement or
judgment.
(c) The Agent agrees to indemnify and hold harmless the Company,
its directors, its officers who sign the Registration Statement, and any
person who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, to the same extent as the
foregoing indemnity from the Company to the Agent, but only with respect
to information relating to the Agent furnished in writing by or on behalf
of the Agent expressly for use in the Registration Statement, the
Prospectus or any amendment or supplement thereto. If any action, suit or
proceeding shall be brought against the Company, any of its directors, any
such officer, or any such controlling person based on the Registration
Statement, the Prospectus or any amendment or supplement thereto, and in
respect of which indemnity may be sought against the Agent pursuant to
this paragraph (c), the Agent shall have the rights and duties given to
the Company by paragraph (b) above (except that if the Company shall have
assumed the defense thereof the Agent shall not be required to do so, but
may employ separate counsel therein and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the Agent's
expense), and the Company, its directors, any such officer, and any such
controlling person shall have the rights and duties given to the Agent by
paragraph (b) above. The foregoing indemnity agreement shall be in
addition to any liability which the Agent may otherwise have.
SECTION 9. Contribution; General.
(a) If the indemnification provided for in Section 8 is
unavailable to an indemnified party under paragraphs (a) or (c) thereof in
respect of any losses, claims, damages, liabilities or expenses referred
to therein, then an indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities
or expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Agent on
the other hand from the offering of the Notes, as well as other relevant
equitable considerations, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company on the one
hand and the Agent on the other in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Agent on
the other shall be determined by reference to, among other things, the
total net proceeds from the offering (before deducting expenses) received
by the Company and the total commissions received by the Agent, in each
case as set forth in the table on the cover page of the Prospectus. The
relative fault of the Company on the one hand and the Agent on the other
hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Company on the one hand or by the Agent on the other hand and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(b) The Company and the Agent agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by a
pro rata allocation or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (a)
above. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities and expenses referred to in
paragraph (a) above shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating any claim or defending
any such action, suit or proceeding. Notwithstanding the provisions of
this Section 9, the Agent shall not be required to contribute any amount
in excess of the amount by which the total price of the Notes sold through
it exceeds the amount of any damages which the Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(c) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such action, suit or proceeding.
(d) All representations and warranties of the Company contained
herein and in the certificate or certificates delivered pursuant to
Section 5 and the indemnity agreements contained in Section 8 and this
Section 9 shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Agent or controlling
person, or by or on behalf of the Company or any officer, director or
controlling person, or of any termination of this Agreement, and shall
survive delivery of and payment for the Notes.
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement
and all amendments thereto and the Prospectus and any amendments or
supplements thereto;
(b) The cost of reproducing this Agreement;
(c) The preparation, printing, issuance and delivery of the
Notes, including any fees and expenses relating to the use of
book-entry notes;
(d) The fees and disbursements of the Company's accountants
and counsel, of the Trustee and its counsel and of the calculation
agent, if any;
(e) The reasonable fees and disbursements of counsel to the
Agent incurred from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securities
laws in accordance with the provisions of Section 4(i) hereof,
including filing fees and the reasonable fees and disbursements of
counsel for the Agent in connection therewith and in connection with
the preparation of any Blue Sky Survey and any Legal Investment
Survey;
(g) The printing and delivery to the Agent in quantities as
hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or
supplements thereto, and the delivery by the Agent of the Prospectus
and any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Notes;
(h) The preparation, printing, reproducing and delivery to
the Agent of copies of the Indenture and all supplements and
amendments thereto;
(i) Any fees charged by rating agencies for the rating of
the Notes;
(j) The fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc.;
(k) Any advertising and other out-of-pocket expenses of the
Agent incurred with the prior written approval of the Company;
(l) The cost of preparing, and providing any CUSIP or other
identification numbers for, the Notes;
(m) The fees and expenses of any depositary and any nominees
thereof in connection with the Notes; and
(n) The fees and expenses, if any, incurred in connection
with any filing with or approval by the VPSB in connection with the
issuance of the Note.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company submitted pursuant hereto or
thereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Agent or any controlling
person of the Agent, or by or on behalf of the Company, and shall survive
each delivery of and payment for any of the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any
Terms Agreement) may be terminated for any reason, at any time by either
the Company or the Agent upon the giving of 10 days' written notice of
such termination to the other party hereto.
(b) Termination of a Terms Agreement. The Agent may terminate
any Terms Agreement, immediately upon notice to the Company, at any time
prior to the Settlement Date relating thereto if (i) trading in securities
generally on the New York Stock Exchange shall have been suspended or
materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either federal or state
authorities, (iii) there shall have occurred any outbreak or escalation of
hostilities or other international or domestic calamity, crisis or change
in political, financial or economic conditions, the effect of which on the
financial markets of the United States is such as to make it, in the
judgment of the Agent, impracticable or inadvisable to commence or
continue the offering of the Notes at the offering price to the public set
forth on the cover page of the Prospectus or to enforce contracts for the
resale of the Notes or (iv) if the rating assigned by any nationally
recognized securities rating agency to any debt securities of the Company
as of the date of any applicable Terms Agreement shall have been lowered
since that date or if any such rating agency shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any debt securities of the Company.
(c) General. In the event of any such termination, neither party
will have any liability to the other party hereto, except that (i) the
Agent shall be entitled to any commission earned in accordance with the
third paragraph of Section 3(a) hereof, (ii) if at the time of termination
(a) the Agent shall own any Notes purchased pursuant to a Terms Agreement
with the intention of reselling them or (b) an offer to purchase any of
the Notes has been accepted by the Company but the time of delivery to the
purchaser or his agent of the Note or Notes relating thereto has not
occurred, the covenants set forth in Sections 4 and 7 hereof shall remain
in effect until such Notes are so resold or delivered, as the case may be,
and (iii) the covenant set forth in Section 4(h) hereof, the provisions of
Section 5 hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, and the provisions of Sections 11 and 15 hereof
shall remain in effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail
or by telex, telecopier or telegram, and any such notice shall be
effective when received at the address specified below.
If to the Company:
Green Mountain Power Corporation
25 Green Mountain Drive
P.O. Box 850
South Burlington, Vermont 05402-0850
Attention: Christopher Dutton, Chief Financial Officer
If to the Agent:
or at such other address as such party may designate from time to time by
notice duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law.
This Agreement and all the rights and obligations of the parties shall be
governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in the State of New
York.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon the Agent
and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and
directors referred to in Sections 8 and 9 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the parties hereto and respective
successors and said controlling persons and officers and directors and
their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Notes shall be deemed to be
a successor by reason merely of such purchase.
If the foregoing is in accordance with the Agent's understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all counterparts will become a
binding agreement between the Agent and the Company in accordance with its
terms.
Very truly yours,
GREEN MOUNTAIN POWER CORPORATION
By:
Name:
Title:
Accepted:
NAME OF AGENT
By:
Name:
Title:
EXHIBIT A
The following terms, if applicable, shall be agreed to by the applicable
Agent and the Company pursuant to each Terms Agreement:
Principal Amount: $_______
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread or Spread Multiplier, if any:
Interest Rate Reset Month(s):
Interest Payment Month(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Interest Payment Date:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayable at the Option of the Holder:
Repayment Date(s):
Repayment Price(s):
Repayment Notice Period(s):
Date of Maturity:
Purchase Price: ___%
Settlement Date and Time:
Stand-off Period (if any):
Additional Terms:
Also, agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(b)
of the Distribution Agreement.
Legal Opinion pursuant to Section 7(c) of the
Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the
Distribution Agreement.
Stand-off Agreement pursuant to Section 4(k) of the
Distribution Agreement.
SCHEDULE A
As compensation for the services of the Agent hereunder, the Company shall
pay the Agent, on a discount basis, a commission for the sale of each Note
equal to the principal amount of such Note multiplied by the appropriate
percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From 9 months but less than 1 year .125%
From 1 year but less than 18 months .150
From 18 months but less than 2 years .200
From 2 years but less than 3 years .250
From 3 years but less than 4 years .350
From 4 years but less than 5 years .450
From 5 years but less than 6 years .500
From 6 years but less than 7 years .550
From 7 years but less than 10 years .600
From 10 years but less than 15 years .625
From 15 years but less than 20 years .700
From 20 years to less than 30 years .750
30 years or more *
* Commission on Notes with maturities of 30 years or more shall be agreed
to by the Company and the applicable Agent at the time of such
transaction.
Exhibit 1(b)
000,000 Shares
GREEN MOUNTAIN POWER CORPORATION
Common Stock
($3.33 1/3 Par Value)
UNDERWRITING AGREEMENT
___________, 199__
As Representative of the Several Underwriters
Dear Sirs:
Green Mountain Power Corporation, a Vermont corporation (the "Company"),
proposes to issue and sell an aggregate of 000,000 shares (the "Firm
Shares") of its common stock, $3.33 1/3 par value per share (the "Common
Stock"), to the several Underwriters named in Schedule I hereto (the
"Underwriters"). The Company also proposes to sell to the Underwriters,
upon the terms and conditions set forth in Section 2 hereof, up to an
additional 000,000 shares (the "Additional Shares") of Common Stock. The
Firm Shares and the Additional Shares are hereinafter collectively
referred to as the "Shares".
The Company wishes to confirm as follows its agreement with you (the
"Representative") and the other several Underwriters on whose behalf you
are acting, in connection with the several purchases of the Shares by the
Underwriters.
1. Registration Statement and Prospectus. The Company has prepared
and filed with the Securities and Exchange Commission (the "Commission")
in accordance with the provisions of the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder
(collectively the "Act"), a registration statement on Form S-3 under the
Act (the "registration statement"), including a prospectus. The term
"Registration Statement" as used in this Agreement means the registration
statement (including all financial schedules and exhibits), in the form in
which it is presently effective. The term "Prospectus" as used in this
Agreement means the prospectus in the form included in the Registration
Statement, as it shall be supplemented by a prospectus supplement with
respect to the Shares in a filing with the Commission pursuant to Rule
424(b) under the Act. The term "Prepricing Prospectus" as used in this
Agreement means the prospectus in the form included in the Registration
Statement, as it has been supplemented by a preliminary prospectus
supplement with respect to the Shares in a filing with the Commission
pursuant to Rule 424(b) under the Act. Any reference in this Agreement to
the registration statement, the Registration Statement, any Prepricing
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-
3 under the Act, as of the date of the registration statement, the
Registration Statement, any Prepricing Prospectus or the Prospectus, as
the case may be, and any reference to any amendment or supplement to the
registration statement, the Registration Statement, any Prepricing
Prospectus or the Prospectus shall be deemed to refer to and include any
document filed after such date under the Securities Exchange Act of 1934,
as amended (the "Exchange Act") which, upon filing, is incorporated by
reference therein, as required by paragraph (b) of Item 12 of Form S-3.
As used herein, the term "Incorporated Documents" means the documents
which at the time are incorporated by reference in the registration
statement, the Registration Statement, any Prepricing Prospectus, the
Prospectus, or any amendment or supplement thereto.
2. Agreements to Sell and Purchase. The Company hereby agrees,
subject to all the terms and conditions set forth herein, to issue and
sell to each Underwriter and, upon the basis of the representations,
warranties and agreements of the Company herein contained and subject to
all the terms and conditions set forth herein, each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase
price of $00.00 per Share (the "purchase price per share"), the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule I
hereto (or such number of Firm Shares increased as set forth in Section 10
hereof).
The Company also agrees, subject to all the terms and conditions set forth
herein, to sell to the Underwriters, and, upon the basis of the
representations, warranties and agreements of the Company herein contained
and subject to all the terms and conditions set forth herein, the
Underwriters shall have the right to purchase from the Company, at the
purchase price per share, pursuant to an option (the "over-allotment
option") which may be exercised at any time and from time to time prior to
9:00 P.M., New York City time, on the 30th day after the date of the
Prospectus (or, if such 30th day shall be a Saturday or Sunday or a
holiday, on the next business day thereafter when the New York Stock
Exchange is open for trading), up to an aggregate of 000,000 Additional
Shares. Additional Shares may be purchased only for the purpose of
covering over-allotments made in connection with the offering of the Firm
Shares. Upon any exercise of the over-allotment option, each Underwriter,
severally and not jointly, agrees to purchase from the Company the number
of Additional Shares (subject to such adjustments as you may determine in
order to avoid fractional shares) which bears the same proportion to the
number of Additional Shares to be purchased by the Underwriters as the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto (or such number of Firm Shares increased as set forth in
Section 10 hereof) bears to the aggregate number of Firm Shares.
3. Terms of Public Offering. The Company has been advised by you
that the Underwriters propose to make a public offering of their
respective portions of the Shares as soon after the Registration Statement
and this Agreement have become effective as in your judgment is advisable
and initially to offer the Shares upon the terms set forth in the
Prospectus.
4. Delivery of the Shares and Payment Therefor. Delivery to the
Underwriters of and payment for the Firm Shares shall be made at the
office of , at 10:00 A.M., New York City time, on
, 199 (the "Closing Date"). The time or place of
closing for the Firm Shares and the Closing Date may be varied by
agreement between you and the Company.
Delivery to the Underwriters of and payment for any Additional Shares to
be purchased by the Underwriters shall be made at the aforementioned
office of at such time on such date (the
"Option Closing Date"), which may be the same as the Closing Date but
shall in no event be earlier than the Closing Date nor earlier than three
nor later than ten business days after the giving of the notice
hereinafter referred to, as shall be specified in a written notice from
you on behalf of the Underwriters to the Company of the Underwriters'
determination to purchase a number, specified in such notice, of
Additional Shares. The place of closing for any Additional Shares and the
Option Closing Date for such Shares may be varied by agreement between you
and the Company.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such
denominations as you shall request prior to 1:00 P.M., New York City time,
on the third business day preceding the Closing Date or any Option Closing
Date, as the case may be. Such certificates shall be made available to
you in New York City for inspection and packaging not later than 9:30
A.M., New York City time, on the business day next preceding the Closing
Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and any Additional Shares to be purchased
hereunder shall be delivered to you on the Closing Date or the Option
Closing Date, as the case may be, against payment of the purchase price
therefor by certified or official bank check or checks payable in New York
Clearing House (next day) funds to the order of the Company.
5. Agreements of the Company. The Company agrees with the several
Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or a post-effective
amendment thereto to be declared effective before the offering of the
Shares may commence, the Company will endeavor to cause the Registration
Statement or such post-effective amendment to become effective as soon as
possible and will advise you promptly and, if requested by you, will
confirm such advice in writing, when the Registration Statement or such
post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) of any request by the
Commission for amendment of or a supplement to the Registration Statement,
any Prepricing Prospectus or the Prospectus or for additional information;
(ii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction or
the initiation of any proceeding for such purpose; and (iii) within the
period of time referred to in paragraph (f) below, of the happening of any
event, which makes any statement of a material fact made in the
Registration Statement or the Prospectus (as then amended or supplemented)
untrue or which requires the making of any additions to or changes in the
Registration Statement or the Prospectus (as then amended or supplemented)
in order to state a material fact required by the Act to be stated therein
or necessary in order to make the statements therein not misleading, or of
the necessity to amend or supplement the Prospectus (as then amended or
supplemented) to comply with the Act or any other law. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to
obtain the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge (i) two
signed copies of the registration statement as originally filed with the
Commission and of each amendment thereto, including financial statements
and all exhibits to the registration statement, (ii) such number of
conformed copies of the registration statement as originally filed and of
each amendment thereto, but without exhibits, as you reasonably may
request, and (iii) two copies of the Incorporated Documents and the
exhibits to the Incorporated Documents.
(d) The Company will not file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus or, prior
to the end of the period of time referred to in the first sentence in
subsection (f) below, file any document which, upon filing, becomes an
Incorporated Document, of which you shall not previously have been advised
or to which, after you shall have received a copy of the document proposed
to be filed, you shall reasonably object.
(e) Prior to the execution and delivery of this Agreement, the
Company has delivered to you, without charge, in such quantities as you
have requested, copies of each form of the Prepricing Prospectus. The
Company consents to the use, in accordance with the provisions of the Act
and with the securities or Blue Sky laws of the jurisdictions in which the
Shares are offered by the several Underwriters and by dealers, prior to
the date of the Prospectus, of each Prepricing Prospectus so furnished by
the Company.
(f) As soon after the execution and delivery of this Agreement
as possible and thereafter from time to time for such period as in the
opinion of counsel for the Underwriters a prospectus is required by the
Act to be delivered in connection with sales by any Underwriter or dealer,
the Company will expeditiously deliver to each Underwriter and each
dealer, without charge, as many copies of the Prospectus (and of any
amendment or supplement thereto) as you may request. The Company consents
to the use of the Prospectus (and of any amendment or supplement thereto)
in accordance with the provisions of the Act and with the securities or
Blue Sky laws of the jurisdictions in which the Shares are offered by the
several Underwriters and by all dealers to whom Shares may be sold, both
in connection with the offering and sale of the Shares and for such period
of time thereafter as the Prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or dealer. If
during such period of time any event shall occur that in the judgment of
the Company or in the opinion of counsel for the Underwriters is required
to be set forth in the Prospectus (as then amended or supplemented) or
should be set forth therein in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
or if it is necessary to supplement or amend the Prospectus (or to file
under the Exchange Act any document which, upon filing, becomes an
Incorporated Document) in order to comply with the Act or any other law,
the Company will forthwith prepare and, subject to the provisions of
paragraph (d) above, file with the Commission an appropriate supplement or
amendment thereto (or to such document), and will expeditiously furnish to
the Underwriters and dealers a reasonable number of copies thereof.
(g) The Company will cooperate with you and with counsel for
the Underwriters in connection with the registration or qualification of
the Shares for offering and sale by the several Underwriters and by
dealers under the securities or Blue Sky laws of such jurisdictions as you
may designate and will file such consents to service of process or other
documents necessary or appropriate in order to effect such registration or
qualification; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to file any consent to service of process or to submit to any
requirements which it deems unduly burdensome.
(h) The Company will make generally available to its security
holders a consolidated earnings statement, which need not be audited,
covering a twelve-month period commencing after the effective date of the
Registration Statement and ending not later than 15 months thereafter, as
soon as practicable after the end of such period, which consolidated
earnings statement shall satisfy the provisions of Section 11(a) of the
Act.
(i) During the period of five years hereafter, the Company will
furnish to you (i) as soon as practicable, a copy of each report of the
Company mailed to stockholders generally or filed with the Commission, and
(ii) from time to time such other information concerning the Company as
you may reasonably request.
(j) The Company will apply the net proceeds from the sale of
the Shares substantially in accordance with the description set forth in
the Prospectus.
(k) The Company will timely file the Prospectus pursuant to
Rule 424(b) under the Act and will advise you of the time and manner of
such filing.
(l) Except for sales of equity securities or grants of options
or warrants to purchase equity securities pursuant to shareholder and
employee plans and except as provided in this Agreement, the Company will
not sell, contract to sell or otherwise dispose of any Common Stock or any
securities convertible into or exercisable or exchangeable for Common
Stock pursuant to a public offering for a period of 90 days after the date
of the Prospectus, without your prior written consent.
(m) The Company will use its best efforts to have the shares of
Common Stock which it agrees to sell under this Agreement listed, subject
to notice of issuance, on the New York Stock Exchange on or before the
Closing Date.
6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) Each Prepricing Prospectus filed pursuant to Rule 424 under
the Act, complied when so filed in all material respects with the
provisions of the Act. The Commission has not issued any order preventing
or suspending the use of any Prepricing Prospectus.
(b) The Company and the transactions contemplated by this
Agreement meet the requirements for using Form S-3 under the Act. The
Registration Statement and the Prospectus and any supplement or amendment
thereto when filed with the Commission under Rule 424(b) under the Act,
complied or will comply in all material respects with the provisions of
the Act and will not at any such times contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
that this representation and warranty does not apply to statements in or
omissions from the Registration Statement or the Prospectus made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by or on behalf of any
Underwriter through you expressly for use therein.
(c) The Incorporated Documents heretofore filed, when they were
filed (or, if any amendment with respect to any such document was filed,
when such amendment was filed), conformed in all material respects with
the requirements of the Exchange Act and the rules and regulations
thereunder, any further Incorporated Documents so filed will, when they
are filed, conform in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder; no such document
when it was filed (or, if an amendment with respect to any such document
was filed, when such amendment was filed), contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and no such further document, when it is filed, will contain
an untrue statement of a material fact or will omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading.
(d) The outstanding Common Stock of the Company has been duly
and validly authorized and issued, is fully paid and non-assessable, and
conforms to the description thereof contained in the Prospectus; the
Shares have been duly and validly authorized and, when issued and
delivered pursuant to this Agreement, will be duly and validly issued,
fully paid and non-assessable and will conform to the description thereof
contained in the Prospectus; no consent, approval, authorization or other
order of any regulatory authority (other than the Public Service Board of
the State of Vermont) is legally required for the issuance or sale of the
Shares pursuant to this Agreement, except as may be required under the Act
or state securities laws.
(e) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Vermont, and has
the corporate power and authority to own the property and to conduct the
business which it now owns and conducts, and neither the character of the
properties owned by it nor the nature of the business it transacts makes
necessary its licensing or qualification as a foreign corporation in any
state or jurisdiction other than Maine and Massachusetts.
(f) Each of Green Mountain Propane Gas Company and Mountain
Energy, Inc. (collectively, the "Subsidiaries") is a wholly-owned
subsidiary of the Company and is a corporation duly organized and validly
existing in good standing in the jurisdiction of its incorporation and has
the corporate power and authority to own the property, and to conduct the
business which it now owns and conducts.
(g) Except as set forth in the Prospectus, there is not pending
or, to the knowledge of the Company, threatened, any action, suit or
proceeding, to which the Company or either of the Subsidiaries is a party,
before or by any court or governmental agency or body, which might result
in any material adverse change in the condition (financial or other),
business, prospects, net worth or results of operations of the Company and
the Subsidiaries taken as a whole, or might materially and adversely
affect the properties or assets of the Company and the Subsidiaries taken
as a whole; and there are no contracts or documents of the Company which
would be required to be filed as exhibits to the Registration Statement by
the Act which have not been so filed.
(h) The consummation of the transactions herein contemplated
and the fulfillment of the terms hereof will not result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company is a party or by which it or any of its
property is bound, or of the Articles of Association or by-laws of the
Company, or any order, rule or regulation applicable to the Company or any
of its property of any court or other governmental body.
(i) The accountants, Arthur Andersen LLP, who have certified or
shall certify the financial statements included or incorporated by
reference in the Registration Statement and the Prospectus (or any
amendment or supplement thereto) are independent public accountants as
required by the Act.
(j) The financial statements, together with related notes,
included or incorporated by reference in the Registration Statement and
the Prospectus (and any amendment or supplement thereto), present fairly
the consolidated financial position and results of operations of the
Company and the Subsidiaries on the basis stated in the Registration
Statement at the respective dates or for the respective periods to which
they apply; such statements and related notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed therein.
(k) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (or any amendment or supplement thereto),
neither the Company nor either of the Subsidiaries has incurred or will
have incurred any material liability or obligation, direct or contingent,
or has entered into any material transaction, not in the ordinary course
of business, in either case which has resulted in a material adverse
change in the condition (financial or other), net worth or results of
operations of the Company and the Subsidiaries taken as a whole and there
has not been any material change in the capital stock or long-term debt of
the Company.
(l) Each of the Company and the Subsidiaries owns or possesses
all franchises, permits, patents, trademarks, service marks, trade names,
copyrights, licenses and authorizations, and all other operating rights,
consents, authorizations and orders (collectively, "Franchises"), and all
rights with respect to the foregoing, necessary for the conduct of its
business as now conducted; all of such Franchises are valid and subsisting
and contain no unduly burdensome restriction, condition or limitation; and
neither the Company nor either of the Subsidiaries is in default in any
material respect in respect thereof.
(m) The Company has timely filed in good faith with the
Commission exemption statements under Section 3(a)(2) of the Public
Utility Holding Company Act of 1935 and the Commission has not acted to
terminate the exemption from such Act thereby obtained.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each of you and each other Underwriter and
each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act from and against
any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Prepricing Prospectus or in the Registration Statement or the Prospectus
or in any amendment or supplement thereto, or arising out of or based upon
any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any untrue statement or omission
or alleged untrue statement or omission which has been made therein or
omitted therefrom in reliance upon and in conformity with the information
relating to such Underwriter furnished in writing to the Company by or on
behalf of any Underwriter through you expressly for use in connection
therewith; provided, however, that the indemnification contained in this
paragraph (a) with respect to any Prepricing Prospectus shall not inure to
the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) on account of any such loss, claim, damage,
liability or expense arising from the sale of the Shares by such
Underwriter to any person if a copy of the Prospectus shall not have been
delivered or sent to such person within the time required by the Act, and
the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact contained in such Prepricing Prospectus was
corrected in the Prospectus, provided that the Company has delivered the
Prospectus to the several Underwriters in requisite quantity on a timely
basis to permit such delivery or sending. The foregoing indemnity
agreement shall be in addition to any liability which the Company may
otherwise have.
(b) If any action, suit or proceeding shall be brought against
any Underwriter or any person controlling any Underwriter in respect of
which indemnity may be sought against the Company, such Underwriter or
such controlling person shall promptly notify the Company and the Company
shall assume the defense thereof, including the employment of counsel and
payment of all fees and expenses. Such Underwriter or any such
controlling person shall have the right to employ separate counsel in any
such action, suit or proceeding and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such
Underwriter or such controlling person unless (i) the Company has agreed
in writing to pay such fees and expenses, (ii) the Company has failed to
assume the defense and employ counsel, or (iii) the named parties to any
such action, suit or proceeding (including any impleaded parties) include
both such Underwriter or such controlling person and the Company and such
Underwriter or such controlling person shall have been advised by its
counsel that representation of such indemnified party and the Company by
the same counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation by the same
counsel has been proposed) due to actual or potential differing interests
between them (in which case the Company shall not have the right to assume
the defense of such action, suit or proceeding on behalf of such
Underwriter or such controlling person). It is understood, however, that
the Company shall, in connection with any one such action, suit or
proceeding or separate but substantially similar or related actions, suits
or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such Underwriters and controlling persons not
having actual or potential differing interests with you or among
themselves, which firm shall be designated in writing by you, and that all
such fees and expenses shall be reimbursed as they are incurred. The
Company shall not be liable for any settlement of any such action, suit or
proceeding effected without its written consent, but if settled with such
written consent, or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the Company agrees to indemnify and hold
harmless any Underwriter, to the extent provided in the preceding
paragraph, and any such controlling person from and against any loss,
claim, damage, liability or expense by reason of such settlement or
judgment.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who
sign the Registration Statement, and any person who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the Company to
each Underwriter, but only with respect to information relating to such
Underwriter furnished in writing by or on behalf of such Underwriter
through you expressly for use in the Registration Statement, the
Prospectus or any Prepricing Prospectus, or any amendment or supplement
thereto. If any action, suit or proceeding shall be brought against the
Company, any of its directors, any such officer, or any such controlling
person based on the Registration Statement, the Prospectus or any
Prepricing Prospectus, or any amendment or supplement thereto, and in
respect of which indemnity may be sought against any Underwriter pursuant
to this paragraph (c), such Underwriter shall have the rights and duties
given to the Company by paragraph (b) above (except that if the Company
shall have assumed the defense thereof such Underwriter shall not be
required to do so, but may employ separate counsel therein and participate
in the defense thereof, but the fees and expenses of such counsel shall be
at such Underwriter's expense), and the Company, its directors, any such
officer, and any such controlling person shall have the rights and duties
given to the Underwriters by paragraph (b) above. The foregoing indemnity
agreement shall be in addition to any liability which the Underwriters may
otherwise have.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred
to therein, then an indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities
or expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Shares, as well as
other relevant equitable considerations, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
on the one hand and the Underwriters on the other in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Underwriters on the other shall be determined by reference
to, among other things, the total net proceeds from the offering (before
deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, in each case as
set forth in the table on the cover page of the Prospectus. The relative
fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Company on the one hand or by the Underwriters on the other hand
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were
determined by a pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that
does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities and expenses
referred to in paragraph (d) above shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating any
claim or defending any such action, suit or proceeding. Notwithstanding
the provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price of
the Shares underwritten by it and distributed to the public exceeds the
amount of any damages which such Underwriter has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such action, suit or proceeding.
(g) All representations and warranties of the Company contained
herein and in the certificate or certificates delivered pursuant to
Section 8 and the indemnity agreements contained in this Section 7 shall
remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company or any officer, director or
controlling person, or of any termination of this Agreement, and shall
survive delivery of and payment for the Shares.
8. Conditions of Underwriters' Obligations. The several obligations
of the Underwriters to purchase the Firm Shares hereunder are subject to
the following conditions:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the registration statement or a post-effective
amendment thereto to be declared effective before the offering of the
Shares may commence, the registration statement or such post-effective
amendment shall have become effective not later than 5:30 P.M., New York
City time, on the date hereof, or at such later date and time as shall be
consented to in writing by you, and all filings, if any, required by Rule
424 under the Act shall have been timely made; no stop order suspending
the effectiveness of the registration statement shall have been issued and
no proceeding for that purpose shall have been instituted or, to the
knowledge of the Company or any Underwriter, threatened by the Commission,
and any request of the Commission for additional information (to be
included in the registration statement or the prospectus or otherwise)
shall have been complied with to your satisfaction.
(b) Except as contemplated in the Prospectus, subsequent to the
respective dates of which information is given in the Registration
Statement and Prospectus, there shall not have been any material change in
the capital stock, short-term debt or long-term debt of the Company, or
any material adverse change in the condition (financial or other), net
worth or results of operations of the Company and the Subsidiaries taken
as a whole, which in your judgment, makes it impractical or inadvisable to
offer or deliver the Shares on the terms and in the manner contemplated in
the Prospectus.
(c) You shall have received on the Closing Date, an opinion of
Hunton & Williams, Special Counsel to the Company, dated the Closing Date
and addressed to you, as Representative of the several Underwriters, to
the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Vermont, and has all corporate power and authority necessary to own its
properties and carry on the business which it is presently conducting as
described in the Registration Statement;
(ii) The Shares have been duly authorized and, when issued
by the Company and paid for in accordance with the terms hereof, the
Shares will be validly issued and fully paid and non-assessable;
(iii) The Common Stock of the Company conforms to the
statements concerning it in the Registration Statement and the Prospectus;
(iv) No consent, approval, authorization or other order of
any regulatory body or administrative agency or other governmental body
(other than the Public Service Board of the State of Vermont, whose order
consenting to and approving the issuance and sale of the Shares pursuant
to this Agreement has been obtained and continues in full force and
effect) is legally required for the valid issuance and sale of the Shares
to the Underwriters under this Agreement, except such as have been
obtained under the Act or as may be required under state securities laws;
(v) The Registration Statement has become effective under
the Act, and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending or
contemplated under the Act; any required filing of the Prospectus pursuant
to Rule 424(b) has been made in accordance with Rule 424(b); the
Registration Statement and the Prospectus and any amendment or supplement
thereto comply as to form in all material respects with the requirements
of the Act and the rules and regulations of the Commission thereunder
(except that such counsel need express no opinion as to the financial
statements and other financial and statistical data contained therein);
each of the Incorporated Documents comply as to form in all material
respects with the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder (except that such counsel need
express no opinion as to the financial statements and other financial and
statistical data contained therein); and the statements set forth in the
Company's Annual Report of Form 10-K for the year ended December 31, 1994
with respect to the Public Utility Holding Company Act of 1935 under
"State and Federal Regulation", as to matters of law and legal
conclusions, are true and correct;
(vi) They do not know of any legal or governmental
proceedings pending or threatened to which the Company is a party, or of
which property of the Company is the subject, of a character required to
be disclosed in the Registration Statement which are not disclosed and
properly described therein; and they do not know of any contracts or other
documents of a character required to be filed as exhibits to the
Registration Statement which are not so filed, or any contracts or other
documents of a character required to be disclosed in the Registration
Statement which are not disclosed and properly summarized therein;
(vii) This Agreement has been duly authorized, executed and
delivered by the Company; and the performance of this Agreement and the
consummation of the transactions herein contemplated will not result in a
breach of any of the terms or provisions of, or constitute a default
under, the Articles of Association or by-laws of the Company, or any
indenture, mortgage, deed of trust or other agreement or instrument known
to such counsel to which the Company is a party or by which it or its
properties may be bound or affected; and
(viii) Although counsel has not undertaken, except as
otherwise indicated in their opinion, to determine independently, and does
not assume any responsibility for, the accuracy or completeness of the
statements in the Registration Statement, such counsel has participated in
the preparation of the Registration Statement and the Prospectus,
including review and discussion of the contents thereof (including review
and discussion of the contents of all Incorporated Documents), and nothing
has come to the attention of such counsel that has caused such counsel to
believe that the Registration Statement, at the time the Registration
Statement became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement to the Prospectus, as of its
respective date, and as of the Closing Date or the Option Closing Date, as
the case may be, contained or contains any untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading (it being understood that such counsel need
express no opinion with respect to the financial statements and the notes
thereto and the schedules and other financial and statistical data
included in the Registration Statement or the Prospectus or any
Incorporated Document).
(d) You shall have received on the Closing Date, an opinion of
Peter H. Zamore, Esq., General Counsel of the Company, dated the Closing
Date and addressed to you, as Representative of the several Underwriters,
with respect to the matters referred to in clauses (iii), (iv), (vi) and
(vii) of the foregoing paragraph (c) and further to the effect that:
(i) Each of the Company, Green Mountain Propane Gas Company
and Mountain Energy, Inc. has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Vermont, and has all corporate and other power and authority necessary to
own its properties and carry on the business which it is presently
conducting as described in the Registration Statement;
(ii) The outstanding shares of Common Stock of the Company
(including the Firm Shares) have been duly authorized and validly issued
and are fully paid and non-assessable;
(iii) The statements set forth in the Prospectus under
"Description of Common Stock", as to matters of law and legal conclusions
governed by Vermont law, are true and correct;
(iv) The statements set forth in the Company's Annual
Report on Form 10-K for the year ended December 31, 1994 under "State and
Federal Regulation" (other than statements made with respect to the Public
Utility Holding Company Act of 1935), under "Recent Rate Developments" and
under "Legal Proceedings", as to matters of law and legal conclusions, are
true and correct; and
(v) such counsel has no reason to believe that the
Registration Statement (including the Incorporated Documents) at the time
the Registration Statement became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading
or that Prospectus or any amendment or supplement to the Prospectus, as of
its respective date, and as of the Closing Date or the Option Closing
Date, as the case may be, contained or contains any untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading (it being understood that such counsel need
express no opinion with respect to the financial statements and the notes
thereto and the schedules and other financial and statistical data
included in the Registration Statement or the Prospectus or any
Incorporated Document).
(e) You shall have received on the Closing Date an opinion of
Reid & Priest LLP, Counsel for the Underwriters, dated the Closing Date
and addressed to you, as Representative of the several Underwriters, with
respect to the matters referred to in clauses (ii),(v),(vii)(as to the
first clause thereof) and (viii) of the foregoing paragraph (c) and such
other related matters as you may request.
In rendering their respective opinions as aforesaid, Special Counsel for
the Company and Counsel for the Underwriters may rely upon the opinion of
Peter H. Zamore, Esq. as to the laws of the State of Vermont.
(f) You shall have received letters addressed to you, as
Representative of the several Underwriters, and dated the date hereof and
the Closing Date from Arthur Andersen LLP, independent certified public
accountants, substantially to the effect set forth in Exhibit I hereto.
(g) You shall have received a certificate or certificates,
dated the Closing Date, of the Chairman of the Board or the President or
the Executive Vice President and the Vice President, Chief Financial
Officer and Treasurer, or the Secretary of the Company to the effect that,
to the best of their knowledge, based on a reasonable investigation:
(i) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for the purpose
have been instituted or are pending or contemplated under the Act;
(ii) Neither the Registration Statement nor the
Prospectus, as the same may have been amended or supplemented, contains
any untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading; and, since the effective date of the Registration
Statement there has occurred no event required to be set forth in an
amended or supplemented Prospectus which has not been so set forth;
(iii) Except as contemplated in the Prospectus, subsequent
to the respective dates as of which information is given in the
Registration Statement and the Prospectus, neither the Company or either
of the Subsidiaries has incurred any material liabilities or obligations,
direct or contingent, or entered into any material transaction, not in the
ordinary course of business, in either case which has resulted in a
material adverse change in the condition (financial or other) or results
of operations of the Company and of the Subsidiaries taken as a whole, and
there has not been any material change in the capital stock or long-term
debt of the Company;
(iv) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, the
Company has not sustained any loss or damage to its properties which
(considering them as a whole) is material, whether or not insured; and
(v) The representations and warranties of the Company in
this Agreement are true and correct, as if made on and as of the Closing
Date; and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to
the Closing Date.
(h) The Company shall not have failed at or prior to the
Closing Date to have performed or complied with any of its agreements
herein contained and required to be performed or complied with by it
hereunder at or prior to the Closing Date.
(i) Prior to the Closing Date the Shares shall have been
listed, subject to notice of issuance, on the New York Stock Exchange.
(j) The Company shall have furnished or caused to be furnished
to you such further certificates and documents as you shall have
reasonably requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in
form and substance to you and your counsel.
Any certificate or document signed by any officer of the Company and
delivered to you, as Representative of the Underwriters, or to counsel for
the Underwriters, shall be deemed a representation and warranty by the
Company to each Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the satisfaction on and as of any Option Closing
Date of the conditions set forth in this Section 8, except that, if any
Option Closing Date is other than the Closing Date, the certificates,
opinions and letters referred to in paragraphs (c) through (g) shall be
dated the Option Closing Date in question and the opinions called for by
paragraphs (c), (d) and (e) shall be revised to reflect the sale of
Additional Shares.
9. Expenses. The Company agrees to pay, whether or not the
transactions contemplated hereunder are consummated or this Agreement
becomes effective or is terminated, all costs and expenses incident to the
performance of its obligations under this Agreement, including the issue
and delivery of the Shares by the Company, the fees and expenses of the
Company's counsel and accountants, the costs and expenses incident to the
preparation and filing under the Act of the Registration Statement
(including all exhibits thereto) and the Prospectus, all fees and
disbursements incurred by the Company or the Underwriters or their counsel
in connection with the qualification of the Shares under the laws of
various jurisdictions as provided in Section 5 hereof (including the cost
of furnishing to the Underwriters memoranda relating thereto and the fees
(not in excess of $5,000) and disbursements of counsel for the
Underwriters), the cost of furnishing to the Underwriters copies of the
Registration Statement, each Preliminary Prospectus and the Prospectus and
each amended and supplemented prospectus and each prospectus prepared to
permit compliance with Section 10(a)(3) of the Act, and the cost of
printing this Agreement. The Company shall not, however, be required to
pay for any of the Underwriters' expenses other than as hereinabove set
forth; provided that, if this Agreement shall not be consummated because
it is terminated by the Underwriters pursuant to Section 11 hereof, or by
reason of any failure, refusal or inability on the part of the Company to
perform any undertaking or satisfy any condition of this Agreement or to
comply with any of the terms hereof on its part to performed, unless such
failure to perform said undertaking or to satisfy said condition or to
comply with said terms be due to the default or omission of any
Underwriter, then and in any such case the Company shall reimburse the
several Underwriters for all reasonable out-of-pocket expenses, including
fees and disbursements of counsel (not in excess of $35,000), incurred in
connection with investigating, marketing and proposing to market the
Shares or in contemplation of performing their obligations hereunder; but
the Company shall not in any event be liable to any of the several
Underwriters for damages on account of loss of anticipated profits from
the sale by them of the Shares.
10. Effective Date of Agreement. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties
hereto; or (ii) if, at the time this Agreement is executed and delivered,
it is necessary for the registration statement or a post-effective
amendment thereto to be declared effective before the offering of the
Shares may commence, when notification of the effectiveness of the
registration statement or such post-effective amendment has been released
by the Commission. Until such time as this Agreement shall have become
effective, it may be terminated by the Company, by notifying you, or by
you, as Representative of the several Underwriters, by notifying the
Company.
If any one or more of the Underwriters shall fail or refuse to purchase
Shares which it or they are obligated to purchase hereunder on the Closing
Date, and the aggregate number of Shares which such defaulting Underwriter
or Underwriters are obligated but fail or refuse to purchase is not more
than one-tenth of the aggregate number of Shares which the Underwriters
are obligated to purchase on the Closing Date, each non-defaulting
Underwriter shall be obligated, severally, in the proportion which the
number of Firm Shares set forth opposite its name in Schedule I hereto
bears to the aggregate number of Firm Shares set forth opposite the names
of all non-defaulting Underwriters to purchase the Shares which such
defaulting Underwriter or Underwriters are obligated, but fail or refuse,
to purchase. If any one or more of the Underwriters shall fail or refuse
to purchase Shares which it or they are obligated to purchase on the
Closing Date and the aggregate number of Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Shares
which the Underwriters are obligated to purchase on the Closing Date and
arrangements satisfactory to you and the Company for the purchase of such
Shares by one or more non-defaulting Underwriters or other party or
parties approved by you and the Company are not made within 36 hours after
such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter or the Company. In any such case which
does not result in termination of this Agreement, either you or the
Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in
the Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect of any
such default of any such Underwriter under this Agreement. The term
"Underwriter" as used in this Agreement includes, for all purposes of this
Agreement, any party not listed in Schedule I hereto who, with your
approval and the approval of the Company, purchases Shares which a
defaulting Underwriter is obligated, but fails or refuses, to purchase.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of
any Underwriter to the Company by notice to the Company, if prior to the
Closing Date or any Option Closing Date (if different from the Closing
Date and then only as to the Additional Shares), as the case may be, (i)
trading in securities generally on the New York Stock Exchange shall have
been suspended or materially limited, (ii) a general moratorium on
commercial banking activities in New York shall have been declared by
either federal or state authorities, or (iii) there shall have occurred
any outbreak or escalation of hostilities or other international or
domestic calamity, crisis or change in political, financial or economic
conditions, the effect of which on the financial markets of the United
States is such as to make it, in your judgment, impracticable or
inadvisable to commence or continue the offering of the Shares at the
offering price to the public set forth on the cover page of the Prospectus
or to enforce contracts for the resale of the Shares by the Underwriters.
Notice of such termination may be given to the Company by telegram,
telecopy or telephone and shall be subsequently confirmed by letter. Any
such termination shall be without liability of any party except that the
provisions of Section 7 and Section 9 hereof shall at all times be
effective and shall apply.
12. Information Furnished by the Underwriters. The statements set
forth in the last paragraph on the cover page, the stabilization legend on
the inside front cover, and the statements in the first and third
paragraphs under the caption "Underwriting" in any Prepricing Prospectus
and in the Prospectus, constitute the only information furnished by or on
behalf of the Underwriters through you as such information is referred to
in Sections 6(b) and 7 hereof. [The first paragraph under the caption
"Underwriting" will contain the names and participations of the
underwriters; the third paragraph will contain the selling concession and
the reallowance.]
13. Miscellaneous. Except as otherwise provided in Sections 5, 10
and 11 hereof, notice given pursuant to any provision of this Agreement
shall be in writing and shall be delivered (i) if to the Company, at the
office of the Company at 25 Green Mountain Drive, P.O. Box 850, South
Burlington, Vermont 05402-0850, Attention: Christopher L. Dutton, Chief
Financial Officer; or (ii) if to you, as Representative of the several
Underwriters, care of , Attention:
.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Company, its directors and officers, and the other
controlling persons referred to in Section 7 hereof and their respective
successors and assigns, to the extent provided herein, and no other person
shall acquire or have any right under or by virtue of this Agreement.
Neither the term "successor" nor the term "successors and assigns" as used
in this Agreement shall include a purchaser from any Underwriter of any of
the Shares in his status as such purchaser.
This Agreement has been prepared upon the assumption that there will be
more than one Underwriter purchasing the Shares. Consequently, if there
should be only one Underwriter named in Schedule I hereto, this Agreement
shall be read in that light.
14. Applicable Law; Counterparts. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New
York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart
hereof shall have been executed and delivered on behalf of each party
hereto.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
GREEN MOUNTAIN POWER CORPORATION
By
Chief Financial Officer
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule I
hereto.
As Representative of the Several Underwriters
By
By
SCHEDULE I
NAME OF COMPANY
Number of Number of
Underwriter Firm Shares Underwriter Firm Shares
_________
Total.... _________
EXHIBIT I
(1) They are independent certified public accountants with respect to the
Company within the meaning of the Act and the Rules and Regulations.
(2) In their opinion, the consolidated financial statements and schedules
audited by them and incorporated by reference in the Registration
Statement comply as to form in all material respects with the applicable
accounting requirements of the Act and the rules and regulations of the
Commission thereunder.
(3) On the basis of procedures referred to in such letter, including a
reading of the latest available interim unaudited consolidated financial
statements of the Company and the minutes of the Board of Directors and
Stockholders of the Company, and inquiries of officers of the Company who
have responsibility for financial and accounting matters (it being
understood that the foregoing procedures do not constitute an examination
made in accordance with generally accepted auditing standards and they
would not necessarily reveal matters of significance with respect to the
comments made in such letter, and accordingly, that Arthur Andersen LLP
make no representation as to the sufficiency of such procedures for the
several Underwriters' purposes), nothing has come to their attention which
caused them to believe that (A) the unaudited consolidated financial
statements included in the quarterly reports on Form 10-Q incorporated by
reference in the Registration Statement do not comply as to form in all
material respects with the applicable accounting requirements of the Act
and the rules and regulations of the Commission thereunder or are not
fairly presented (except as otherwise indicated in the Prospectus) in
conformity with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited consolidated
financial statements included in the documents incorporated by reference
in the Registration Statement, (B) the unaudited selected financial
information with respect to the consolidated results of operations and
financial position of the Company included in the Prospectus under the
caption "Selected Financial Data" were not determined on a basis
substantially consistent with the corresponding amounts in the audited
statement of consolidated income, (C) at the date of the latest available
interim unaudited consolidated balance sheet of the Company and at a
subsequent specified date not more than five business days prior to the
date of such letter, there was any change in the capital stock of the
Company or long-term debt of the Company or any decrease in its net
assets, in each case as compared with amounts shown in the latest
consolidated balance sheet included incorporated by reference in the
Prospectus or (D) for the period from the date of the latest financial
statements incorporated by reference in the Prospectus to a subsequent
specified date not more than five business days prior to the date of such
letter, there were any decreases, as compared with the corresponding
period in the preceding year, in operating revenues, net income or net
income applicable to common stock; except in all instances for changes or
decreases which the Prospectus discloses have occurred or may occur or
except as set forth in such letter.
(4) In addition to the audit referred to in their report(s) incorporated
by reference in the Prospectus and the limited procedures, inspection of
minute books, inquiries and other procedures referred to in paragraph (3)
above, they have carried out certain specified procedures, not
constituting an audit in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Underwriters which are derived from the
general accounting records of the Company and its subsidiaries, which
appear in the Prospectus (excluding documents incorporated by reference),
or in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Underwriters or in documents incorporated by
reference in the Prospectus specified by the Underwriters, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and have
found them to be in agreement.
EXHIBIT 4-a-16
GREEN MOUNTAIN POWER CORPORATION
to
UNITED STATES TRUST COMPANY OF NEW YORK
[successor to The Chase Manhattan Bank (National Association), successor
to The Chase National Bank of the City of New York], Trustee
________________
SIXTEENTH SUPPLEMENTAL INDENTURE
Dated as of _____ __, 1995
_________________
Supplemental to
Indenture of First Mortgage
and Deed of Trust
Dated as of February 1, 1955
_________________
This is a Security Agreement relating to Personal Property as well as a
Mortgage upon Real Estate and Other Property
This SIXTEENTH SUPPLEMENTAL INDENTURE dated as of _____ __, 1995 made by
GREEN MOUNTAIN POWER CORPORATION, as debtor (its Federal Tax Number being
03-0127430), a corporation duly organized and existing under the laws of
the State of Vermont (hereinafter sometimes called the "Company"), whose
mailing address and address of its chief executive office is 25 Green
Mountain Drive, South Burlington, Vermont 05403, party of the first part,
and UNITED STATES TRUST COMPANY OF NEW YORK [successor to The Chase
Manhattan Bank (National Association), successor to The Chase National
Bank of the City of New York], as Trustee and secured party (its Federal
Tax number being 13-5459866), a corporation existing under the laws of the
State of New York and having its principal corporate trust office at 114
West 47th Street, New York, New York 10036 (hereinafter sometimes called
the "Trustee"), party of the second part.
WHEREAS, the Company has heretofore executed and delivered an Indenture of
First Mortgage and Deed of Trust dated as of February 1, 1955 (herein
sometimes called the "Original Indenture"), to secure, as provided herein,
its bonds (in the Original Indenture and herein called the "Bonds"), to be
designated generally as its "First Mortgage Bonds", and to be issued in
one or more series as provided in the Original Indenture;
WHEREAS, the Company has heretofore executed and delivered a First
Supplemental Indenture dated as of April 1, 1961, a Second Supplemental
Indenture dated as of January 1, 1966, a Third Supplemental Indenture
dated as of July 1, 1968, a Fourth Supplemental Indenture dated as of
October 1, 1969, a Fifth Supplemental Indenture dated as of December 1,
1973, a Sixth Supplemental Indenture dated as of June 1, 1975, a Seventh
Supplemental Indenture dated as of August 1, 1976, an Eighth Supplemental
Indenture dated as of December 1, 1979, a Ninth Supplemental Indenture
dated as of July 15, 1985, a Tenth Supplemental Indenture dated as of June
15, 1989, an Eleventh Supplemental Indenture dated as of September 1,
1990, a Twelfth Supplemental Indenture dated as of March 1, 1992, a
Thirteenth Supplemental Indenture dated as of March 1, 1992, a Fourteenth
Supplemental Indenture dated as of November 1, 1993 and a Fifteenth
Supplemental Indenture dated as of November 1, 1993 supplementing and
modifying the Original Indenture, each of which Supplemental Indentures
provided for, among other things, the creation of a new series of First
Mortgage Bonds;
WHEREAS, pursuant to the Original Indenture, as heretofore supplemented
and modified, there have been executed, authenticated, delivered and
issued and there are now outstanding First Mortgage Bonds of series and in
principal amounts as follows:
Issued and
Title Outstanding
First Mortgage Bonds, 5 1/8% Series due 1996 . . . . 3,000,000
First Mortgage Bonds, 7% Series due 1998 . . . . . . 3,000,000
First Mortgage Bonds, 10.7% Series due 2000 . . . . 10,800,000
First Mortgage Bonds, 10.0% Series due 2004 . . . . 17,000,000
First Mortgage Bonds, 9.64% Series due 2020 . . . . 9,000,000
First Mortgage Bonds, 8.65% Series due 2022 . . . . 13,000,000
First Mortgage Bonds, 6.84% Series due 1997 . . . . 2,666,000
First Mortgage Bonds, 5.71% Series due 2000 . . . . 5,000,000
First Mortgage Bonds, 6.70% Series due 2018 . . . . 15,000,000
WHEREAS, the Board of Directors of the Company has established a new
series of Bonds to be designated "First Mortgage Bonds, Secured Medium-
Term Notes, Series A" (herein sometimes called the "Series A Notes"), each
of which may also bear the descriptive title "__% Note due ____", and has
authorized an issue of up to Fifty Million Dollars ($50,000,000) principal
amount thereof, and the Company has complied or will comply with all
provisions required to issue additional Bonds provided for in the Original
Indenture;
WHEREAS, the Company desires to execute and deliver this Sixteenth
Supplemental Indenture, in accordance with the provisions of the Original
Indenture, for the purposes, among others, of (a) further assuring,
conveying, mortgaging and assigning unto the Trustee certain additional
property acquired by the Company, (b) providing for the creation of a new
series of Bonds, designating the series to be created and specifying the
form and provisions of the Bonds of such series and (c) adding to the
Original Indenture, as supplemented and modified, other covenants and
agreements to be hereafter observed by the Company (the Original
Indenture, as heretofore supplemented and modified and as hereby
supplemented and modified, being herein sometimes called the "Indenture");
and
WHEREAS, all acts and proceedings required by law and by the Restated
Articles of Association and By-laws of the Company necessary to secure the
payment of the principal of, premium, if any, and interest on the Series A
Notes, to make the Series A Notes to be issued hereunder, when executed by
the Company, authenticated and delivered by the Trustee and duly issued,
the valid, binding and legal obligations of the Company, and to constitute
the Indenture a valid and binding mortgage for the security of all of the
Bonds, in accordance with its and their terms, have been done and taken;
and the execution and delivery of this Sixteenth Supplemental Indenture
have been in all respects duly authorized:
NOW, THEREFORE, THIS SIXTEENTH SUPPLEMENTAL INDENTURE WITNESSETH, that in
order to secure the payment of the principal of, premium, if any, and
interest on all Bonds at any time issued and outstanding under the
Indenture, according to their tenor, purport and effect, to confirm the
lien of the Indenture upon the mortgaged property mentioned therein
including any and all property purchased, constructed or otherwise
acquired by the Company since the date of execution of the Original
Indenture and to secure the performance and observance of all the
covenants and conditions herein and in the Bonds and in the Indenture
contained, to declare the terms and conditions upon and subject to which
the Series A Notes are and are to be issued and secured, and held, and for
and in consideration of the premises and of the mutual covenants herein
contained and of the purchase and acceptance of the Series A Notes by the
holders thereof, and of the sum of Ten Dollars ($10) duly paid to the
Company by the Trustee, at or before the ensealing and delivery hereof,
and for other valuable consideration, the receipt whereof is hereby
acknowledged, the Company has executed and delivered this Sixteenth
Supplemental Indenture, and by these presents, does grant, bargain, sell,
alien, remise, release, convey, assign, transfer, mortgage, pledge, set
over and confirm unto United States Trust Company of New York, as Trustee,
and to its successors in trust and to its and their successors and assigns
forever, all and singular the property, rights, privileges and franchises
(other than excepted property) of the character described in the Granting
Clauses of the Original Indenture now owned of record or otherwise by the
Company, whether or not constructed or acquired since the date of
execution of the Original Indenture or which may hereafter be constructed
or acquired by it, including, without limiting the generality of the
foregoing, the property in Vermont, Massachusetts and Maine described in
Article Five hereof, but subject to all exceptions, reservations and
matters of the character therein referred to, and expressly excepting and
excluding from the lien and operation of the Indenture all properties of
the character specifically excepted by Paragraphs B through H of Granting
Clause VII of the Original Indenture, to the extent contemplated thereby,
and all property heretofore released or otherwise disposed of pursuant to
the provisions of the Indenture.
TO HAVE AND TO HOLD all of the property, real, personal and mixed, and all
and singular the lands, properties, estates, rights, franchises,
privileges and appurtenances hereby granted, bargained, sold, aliened,
remised, released, conveyed, assigned, transferred, mortgaged, pledged,
set over or confirmed or intended so to be, unto the Trustee and its
successors in the trust and to its and their successors and assigns,
forever.
BUT IN TRUST, NEVERTHELESS, for the equal and proportionate use, benefit,
security and protection of those who from time to time shall hold the
Bonds and coupons, or any of them, authenticated and delivered under the
Indenture, and duly issued by the Company, without any discrimination,
preference or priority of any one Bond or coupon over any other by reason
of priority in the time of issue, sale or negotiation thereof or
otherwise, except as provided in Section 12.28 of the Original Indenture,
so that, subject to said Section 12.28, each and all of said Bonds and
coupons shall have the same right, lien, and privilege under the
Indenture, and shall be equally and proportionately secured by the
Indenture (except as any sinking and improvement fund, depreciation fund
or other fund established in accordance with the provisions of the
Indenture may afford additional security for the Bonds of any particular
series), with the same effect as if all the Bonds and coupons had been
issued, sold and negotiated simultaneously on the date of the delivery of
the Original Indenture.
It is hereby covenanted, declared and agreed by and between the parties
hereto that all Bonds and coupons, if any, are to be authenticated,
delivered and issued, and that all property subject or to become subject
to the Indenture is to be held, subject to the further covenants,
conditions, uses and trusts set forth in the Indenture, and the Company
for itself and its successors or assigns does hereby covenant and agree to
and with the Trustee and its successor or successors in such trust, for
the benefit of those who shall hold said Bonds, or coupons, or any of
them, as follows:
ARTICLE I
SERIES A NOTES AND CERTAIN PROVISIONS RELATING
THERETO
SECTION 1.01. Terms of the Series A Notes. There shall be hereby
established a series of Bonds, known as and entitled "First Mortgage
Bonds, Secured Medium-Term Notes, Series A" (herein sometimes called the
"Series A Notes"), each of which may also bear the descriptive title "__%
Note due ____". The aggregate principal amount of the Series A Notes
shall be limited to $_,___,___.
The terms and form of each issue of Series A Notes shall be established by
a resolution of the Board and set forth in an officers' certificate
delivered to the Trustee prior to the Trustee's authentication and
delivery of such issue of Series A Notes. Such officers' certificate
shall set forth:
(1) the title of such issue of Series A Notes (which shall distinguish
such issue of Series A Notes from Bonds of any other series and from any
other issue of Series A Notes issued hereunder);
(2) any limit upon the aggregate principal amount of such issue of Series
A Notes which may be authenticated and delivered under this Sixteenth
Supplemental Indenture (except for Series A Notes authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Series A Notes of such issue and except for any Series A Notes
which are deemed never to have been authenticated and delivered
hereunder);
(3) the Person to whom any interest on a Series A Notes of such issue
shall be payable, if other than the Person in whose name that Series A
Note is registered at the close of business on the regular record date for
such interest;
(4) the date or dates on which the principal of the Series A Notes of
such issue is payable;
(5) the rate or rates at which the Series A Notes of such issue shall
bear interest, if any, the date or dates from which such interest shall
accrue, the interest payment dates on which any such interest shall be
payable and the regular record date for any interest payable on any
interest payment date;
(6) the place or places where the principal of and any premium and
interest on the Series A Notes of such issue shall be payable;
(7) the period or periods within which the price or prices at which and
the terms and conditions upon which Series A Notes of such issue may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase Series A
Notes of such issue pursuant to any sinking fund or analogous provision or
at the option of a Bondholder and the period or periods within which, the
price or prices at which and the terms and conditions upon which Series A
Notes of such issue shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Series A Notes of such issue shall be
issuable;
(10) the currency, currencies or currency units in which payment of the
principal of and any premium and interest on any Series A Notes of the
issue shall be payable;
(11) if the amount of payments of principal of or any premium or interest
on any Series A Notes of such issue may be determined with reference to an
index, the manner in which such amounts shall be determined;
(12) if the principal of or any premium or interest on any Series A Notes
of such issue is to be payable, at the election of the Company or a
Bondholder, in one or more currencies or currency units other than that or
those in which the Series A Notes are stated to be payable, the currency,
currencies or currency units in which payment of the principal of and any
premium and interest on Series A Notes of such issue as to which such
election is made shall be payable, and the periods within which and the
terms and conditions upon which such election is to be made;
(13) if other than the principal amount thereof, the portion of the
principal amount of the Series A Notes of such issue which shall be
payable upon declaration of acceleration of the maturity thereof;
(14) if and as applicable, that the Series A Notes of such issue shall be
issuable in whole or in part in the form of one or more global securities
and, in such case, the depositary or depositaries for such global
securities and any circumstances in which any such global security may be
transferred to, and registered and exchange for Series A Notes registered
and exchange for Series A Notes registered in the name of, a Person other
than the depositary for such global security or a nominee thereof, and in
which any such transfer may be registered; and
(15) any other terms of such issue (which terms shall not be inconsistent
with the provisions of the Indenture or this Sixteenth Supplemental
Indenture).
Series A Notes shall be transferable upon the surrender thereof for
cancellation, together with a written instrument of transfer in a form
approved by the registrar, duly executed by the registered owner or by his
duly authorized attorney, at the office of the Company in the Borough of
Manhattan, The City of New York.
As permitted by the provisions of Section 3.10 of the Original Indenture
and upon payment at the option of the Company of a sum sufficient to
reimburse it for any stamp tax or other governmental charges as provided
in Section 3.11 of the Original Indenture, but without payment of any
other charge, Series A Notes may be exchanged for other Series A Notes of
different authorized denominations of like aggregate principal amount.
SECTION 1.02 Conditions to Issuance of Series A Notes. Series A Notes
may be issued by the Company from time to time and shall be authenticated
by the Trustee from time to time subject to the satisfaction of the
conditions set forth in Article Five of the Indenture.
ARTICLE II
PRINCIPAL AMOUNT PRESENTLY TO BE OUTSTANDING
SECTION 2.01. The total aggregate principal amount of First Mortgage
Bonds of the Company issued and outstanding and presently to be issued and
outstanding under the provisions of and secured by the Indenture will be
_______________________________ ($__,___,___), namely, Three Million
Dollars ($3,000,000) principal amount of First Mortgage Bonds, 5 1/8%
Series due 1996, Three Million Dollars ($3,000,000) principal amount of
First Mortgage Bonds, 7% Series due 1998, Ten Million Eight Hundred
Thousand Dollars ($10,800,000) principal amount of First Mortgage Bonds,
10.7% Series due 2000, Seventeen Million Dollars ($17,000,000) principal
amount of First Mortgage Bonds, 10.00% Series due 2004, Nine Million
Dollars ($9,000,000) principal amount of First Mortgage Bonds, 9.64%
Series due September 1, 2020, Thirteen Million Dollars ($13,000,000)
principal amount of First Mortgage Bonds, 8.65% Series due 2022, Two
Million Six Hundred Sixty-Six Thousand Dollars ($2,666,000) principal
amount of First Mortgage Bonds, 6.84% Series due 1997, Fifteen Million
Dollars ($15,000,000) principal amount of First Mortgage Bonds, 6.70%
Series due 2018, Five Million Dollars ($5,000,000) principal amount of
First Mortgage Bonds, 5.71% Series due 2000, and up to ______ Dollars
($__,___,___) principal amount of Series A Notes to be issued upon
compliance by the Company with the provisions of Sections 5.02 and 5.03
and/or 5.04 and/or 5.05 of the Original Indenture.
ARTICLE III
MODIFICATIONS AND AMENDMENTS
SECTION 3.01. So long as any of the Series A Notes shall remain
outstanding, Article One of the Original Indenture is hereby modified by
adding a new Section 1.43 which shall read as follows: "Section
1.43. The term "Business Day" shall mean any day other than a Saturday,
Sunday or other day on which banks located in The City of New York, or
Burlington, Vermont or any other city in which the principal corporate
trust office of the Trustee is located (if such office is not located in
The City of New York) are authorized or required by law to be closed and,
if any Series A Note shall be issued and outstanding which shall bear a
floating rate of interest calculated with respect to LIBOR, each day on
which dealings or deposits in U.S. dollars are not transacted in the
London interbank market."
SECTION 3.02. Pursuant to clause (i) of Section 18.01 of the Original
Indenture, the modification of the Original Indenture effected by Section
3.01 of this Sixteenth Supplemental Indenture shall take effect without
the consent of the holders of any of the Bonds at the time outstanding,
notwithstanding any of the provisions of Section 18.02 of the Original
Indenture.
SECTION 3.03. Section 3.02 of the Original Indenture is hereby modified
by (i) adding, after the words, "series to be created and" the words
"either (a)", (ii) adding, after the words "forms, terms and provisions
thereof" the words "or (b) authorizing the Board, by resolution thereof,
to specify the forms, terms and provisions thereof", and (iii) deleting
the words "of Directors" the last time they appear therein so that the
said section shall read as follows:
SECTION 3.02. Bonds Issuable in Series. The Bonds may be of
different series and, except for the Bonds of the 1985 Series,
may have such terms and provisions hereinafter permitted, as
shall be created by and set forth in a supplemental indenture,
designating the series to be created and either (a) specifying
the forms, terms and provisions thereof or (b) authorizing the
Board, by resolution thereof, to specify the forms, terms and
provisions thereof; and may be so created and issued when duly
authorized by resolution of the Board without further action of
the Stockholders of the Company.
SECTION 3.04. Section 3.04 of the Original Indenture is hereby replaced
in its entirety, so that the said section shall read as follows:
SECTION 3.04. Terms of Additional Bonds. The Bonds of each
issue of each series (subject, as to Bonds of the 1985 Series,
to the provisions of Article Four), shall bear such date or
dates, shall be payable at such place or places, shall mature on
such date or dates, shall bear interest, if at all, at such rate
or rates payable in such installments and on such dates, and may
be redeemable or repayable before maturity at such price or
prices and upon such terms and conditions, as shall be (a)
determined by the Board, (b) appropriately expressed in the
Bonds of such issue or set forth in a supplemental indenture
creating such series, and (c) set forth in an officers'
certificate setting forth the terms authorized by the Board
resolutions. The Board may, at the time of the creation of any
particular series of Bonds or at any time thereafter, make, and
the Bonds of such series may contain or refer to or be entitled
to the benefit of, any provisions not inconsistent with the
terms hereof, including, without limitation,
(a) provision for the payment of the principal of and/or
the interest on the Bonds of such series without deduction
for specified taxes, assessments or other governmental
charges; and/or
(b) provision for refunding or reimbursing to the holders
of the Bonds of such series specified taxes, assessments or
other governmental charges, but the obligation of the
Company to refund or reimburse any such taxes, assessments
or other governmental charges need not be made a part of
the indebtedness secured hereby; and/or
(c) provision to the extent permitted by law for the
exchange or conversion of the Bonds of such series for or
into new Bonds issuable hereunder or a different series
and/or shares of stock of the Company and/or other
securities; and/or
(d) provision for sinking, amortization, improvement,
depreciation, renewal, maintenance, replacement or other
analogous funds; and/or
(e) provision limiting the aggregate principal amount of
the Bonds of such series;
all as the Board may determine and fix. All Bonds of the same
series having the same date of maturity shall be identical as to
rate of interest and terms of redemption if redeemable. All
coupon Bonds of any one series shall be dated the same date.
SECTION 3.05. Section 5.02(C) of the Original Indenture is hereby
modified by replacing the entire text of such section after the words
"executed by the Company," with the words "providing for the series of
Bonds designated as required by Subsection B of this Section, if such
series is a new series, and if such indenture supplemental hereto shall
authorize the Board to establish the form, terms and provisions of the
Bonds of such series, a resolution of the Board establishing the form,
terms and provisions of the Bonds of such series the authentication and
delivery of which are being requested in the accompanying written order of
the Company.", so that the said section shall read as follows:
C. An indenture supplemental hereto, duly authorized and
executed by the Company, providing for the series of Bonds
designated as required by Subsection B of this Section, if such
series is a new series, and if such indenture supplemental
hereto shall authorize the Board to establish the form, terms
and provisions of the Bonds of such series, a resolution of the
Board establishing the form, terms and provisions of the Bonds
of such series the authentication and delivery of which are
being requested in the accompanying written order of the
Company.
SECTION 3.06. Pursuant to clause (g) of Section 18.01 of the Original
Indenture, the modifications of the Original Indenture effected by
Sections 3.02, 3.03, 3.04 and 3.05 of this Sixteenth Supplemental
Indenture shall take effect without the consent of the holders of any of
the Bonds at the time outstanding, notwithstanding any of the provisions
of Section 18.02 of the Original Indenture.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. This Sixteenth Supplemental Indenture is executed and shall
be construed as an indenture supplemental to the Original Indenture, and
shall form a part thereof, and the Original Indenture, as heretofore
supplemented and modified and hereby supplemented and modified, is hereby
confirmed. Except to the extent inconsistent with the express terms
hereof, all of the provisions, terms, covenants and conditions of the
Original Indenture, as supplemented and modified, shall be applicable to
the Series A Notes to the same extent as if specifically set forth herein.
All terms used in this Sixteenth Supplemental Indenture shall be taken to
have the same meanings as in the Original Indenture, except in cases where
the context clearly indicates otherwise.
SECTION 4.02. All recitals in this Sixteenth Supplemental Indenture are
made by the Company only and not by the Trustee; and all of the provisions
contained in the Original Indenture, as supplemented and modified, in
respect of the rights, privileges, immunities, powers and duties of the
Trustee shall be applicable in respect hereof as fully and with like
effect as if set forth herein in full.
SECTION 4.03. This Sixteenth Supplemental Indenture may be executed in
several counterparts, and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts, or as many of them
as the Company and the Trustee shall preserve undestroyed, shall together
constitute but one and the same instrument.
SECTION 4.04. Although this Sixteenth Supplemental Indenture is dated for
convenience and for the purpose of reference as of ______ __, 1995, the
actual date or dates of execution by the Company and by the Trustee are as
indicated by their respective acknowledgments hereto annexed.
ARTICLE V
SCHEDULE OF PROPERTY ACQUIRED BY GREEN MOUNTAIN POWER CORPORATION AND NOT
HERETOFORE SPECIFICALLY DESCRIBED IN THE INDENTURE
(1)
DISTRIBUTION
ADDITIONS TO PROPERTY AS DESCRIBED IN
ORIGINAL INDENTURE
All the distribution lines and equipment located in the State of Vermont
in several cities and towns consisting of approximately 2,361 miles of
overhead lines including necessary crossarms, guys, insulators,
appurtenances, and line transformers and about 404 miles of underground
cable. The Company's property includes approximately 934,255 kVa of
transformer capacity and approximately 81,109 customers' metering. It is
estimated that at least 80 percent of the above-mentioned lines are
located upon public highways. With respect to such parts of the lines as
are located upon private property, the Company has the necessary permits,
rights in lands or easements enabling it to maintain said lines which said
permits, rights in land or easements are part of the property hereby
conveyed.
IN WITNESS WHEREOF, Green Mountain Power Corporation has caused this
Indenture to be signed in its corporate name and behalf, by Christopher L.
Dutton, Vice President, Chief Financial Officer and Treasurer of the
Company in that behalf duly authorized, and its corporate seal to be
hereunto affixed and attested by its Secretary, and United States Trust
Company of New York in token of its acceptance of the trust hereby created
has caused this Indenture to be signed in its corporate name and behalf by
one of its Assistant Vice Presidents, and its corporate seal to be
hereunto affixed and attested by its Secretary or its Assistant Secretary,
on the dates indicated by their respective acknowledgments hereto annexed,
but as of the day and year first above written.
GREEN MOUNTAIN POWER CORPORATION
By: /s/Christopher L. Dutton
Christopher L. Dutton
Vice President, Chief Financial
Officer and Treasurer
Attest:
/s/Donna S. Laffan
Donna S. Laffan
Corporate Secretary
Signed, sealed and delivered on behalf of GREEN
MOUNTAIN POWER CORPORATION in the presence of:
Name:
Name:
CORPORATE SEAL
UNITED STATES TRUST COMPANY OF NEW YORK
By: /s/Robert E. Patterson, III
Robert E. Patterson, III
Assistant Vice President
Attest:
[Name]
Assistant Vice President
Signed, sealed and delivered on behalf of
UNITED STATES TRUST COMPANY OF NEW YORK in the
presence of:
Name:
Name:
CORPORATE SEAL
STATE OF VERMONT )
) SS.:
COUNTY OF CHITTENDEN )
On this __ day of _____, A.D. 1995, before me, a Notary Public in and for
said County in said State aforesaid, duly commissioned and acting as such,
appeared Christopher L. Dutton, personally known to me and known by me to
be the person who executed the within and foregoing instrument in the name
and on behalf of Green Mountain Power Corporation, who, being by me duly
sworn, did depose and say that he is the Vice President, Chief Financial
Officer and Treasurer of Green Mountain Power Corporation, one of the
corporations described in and that executed the said instrument, and he
acknowledged said instrument so executed to be his free act and deed and
the free act and deed of said corporation, and on oath stated that said
instrument was signed and sealed by him as agent and in behalf of said
corporation by authority of its Board of Directors, and that the seal
affixed to said instrument is the corporate seal of said corporation.
Witness my hand and official seal the day and year aforesaid.
/s/Donna S. Laffan
Name: Donna S. Laffan
Notary Public
NOTARIAL SEAL State of Vermont
Commission Expires: February 10, 1999
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On this __ day of _____, A.D. 1995, before me, a Notary Public in and for
said County in said State aforesaid, duly commissioned and acting as such,
appeared Robert E. Patterson, III, personally known to me and known by me
to be the person who executed the within and foregoing instrument in the
name and on behalf of United States Trust Company of New York, who, being
by me duly sworn, did depose and say that he is an Assistant Vice
President of United States Trust Company of New York, one of the
corporations described in and that executed the said instrument, and he
acknowledged said instrument so executed to be his free act and deed and
the free act and deed of said corporation, and on oath stated that said
instrument was signed and sealed by him on behalf of said corporation by
authority of its By-Laws, and that the seal affixed to said instrument is
the corporate seal of said corporation.
Witness my hand and official seal the day and year aforesaid.
Name:
Notary Public
NOTARIAL SEAL State of New York
Qualified in County
Commission Expires:
Exhibit 5-a-1
[LETTERHEAD OF HUNTON & WILLIAMS]
May 17, 1995
Green Mountain Power Corporation
25 Green Mountain Drive
South Burlington VT 05403
Green Mountain Power Corporation
$50,000,000 Shelf Registration Statement
Common Stock, $3.33 1/3 Par Value, First Mortgage Bonds
Dear Sirs:
We are acting as special counsel for Green Mountain Power Corporation, a
Vermont corporation (the "Company"), in connection with the preparation
and filing with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Act"), of a
Registration Statement on Form S-3 (the "Registration Statement") relating
to up to an aggregate amount of $50,000,000 of Common Stock, $3.33 1/3 par
value (the "Common Stock"), and/or First Mortgage Bonds (the "Bonds") to
be issued by the Company.
As such counsel, we have:
(a) reviewed the action heretofore taken by the Board of Directors of the
Company in connection with the authorization of the issuance and sale of
the Common Stock and the Bonds and related matters;
(b) reviewed the Registration Statement, which we understand you propose
to file with the Securities and Exchange Commission under the Securities
Act of 1933 on the date hereof;
(c) examined the opinion, dated the date hereof, addressed to you, of
Peter H. Zamore, General Counsel for the Company, relating to the Common
Stock and the Bonds; and
(d) made such examination of law and examined originals, or copies,
certified or otherwise authenticated to our satisfaction, of all such
other corporate records, instruments, certificates of public officials
and/or bodies, certificates of officers and representatives of the
Company, and such other documents, and discussed with officers and
representatives of the Company such questions of fact, as we have deemed
necessary in order to render the opinion hereinafter expressed.
Based on the foregoing, we are pleased to advise you that, in our opinion:
1. The Company is a corporation duly organized, incorporated and validly
existing under the laws of the State of Vermont.
2. When (i) the Registration Statement has become effective, (ii) the
Public Service Board of the State of Vermont has issued an order
consenting to and approving the issue and sale of the Common Stock, (iii)
the Common Stock has been duly listed on the New York Stock Exchange, (iv)
the issuance and sale of the Common Stock have been duly authorized by
appropriate corporate action, (v) the Common Stock has been duly issued
and sold and delivered and paid for as contemplated by the underwriting
agreement to be executed by the Company with respect thereto, then the
Common Stock will be validly issued, fully-paid and nonassessable.
3. When (i) the Registration Statement has become effective, (ii) the
Public Service Board of the State of Vermont has issued an order
consenting to and approving the issue and sale of the Bonds, (iii) the
Indenture dated as of February 1, 1955 between the Company and United
States Trust Company of New York (successor to The Chase Manhattan Bank
(National Association), successor to the Chase National Bank of the City
of New York) (as heretofore amended and supplemented by fifteen
supplemental indentures, the "Indenture" and as to be supplemented by the
proposed supplemental indenture relating to the Bonds (the "Sixteenth
Supplemental Indenture")), has been qualified under the Trust Indenture
Act of 1939, as amended, (iv) the Sixteenth Supplemental Indenture to the
Indenture has been duly executed and delivered by the Company and the
Trustee, (v) the issuance and sale of the Bonds have been duly authorized
by appropriate corporate action, and (vi) the Bonds have been duly issued
and authenticated in accordance with the terms of the Indenture and such
Sixteenth Supplemental Indenture and delivered and paid for as
contemplated by the distribution agreement to be executed by the Company
with respect thereto, the Bonds will be legally issued by the Company and
will be valid and binding obligations of the Company except as may be
limited by applicable bankruptcy, insolvency, moratorium, fraudulent
conveyance and transfer, reorganization and other laws affecting
enforcement of creditors' rights generally.
We hereby consent to:
A. being named in the Registration Statement and in any amendment thereto
under the heading "Legal Opinions and Experts";
B. the making in said Registration Statement and in any amendments
thereto of the statements now appearing in said Registration Statement
under the heading "Legal Opinions and Experts" insofar as they are
applicable to us; and
C. the filing of this opinion as an exhibit to the Registration
Statement.
We are members of the Bar of the State of New York and not of the State of
Vermont and, in giving the foregoing opinion, we have relied upon the
above-mentioned opinion of Peter H. Zamore as to all matters of Vermont
law involved in the conclusions stated in our opinions.
Very truly yours,
/s/HUNTON & WILLIAMS
Exhibit 5-a-2
[LETTERHEAD OF PETER H. ZAMORE]
May 17, 1995
Green Mountain Power Corporation
25 Green Mountain Drive
South Burlington VT 05403
Green Mountain Power Corporation
$50,000,000 Shelf Registration Statement
Common Stock, $3.33 1/3 Par Value, First Mortgage Bonds
Dear Sirs:
I am the General Counsel for Green Mountain Power Corporation, a Vermont
corporation (the "Company"), in connection with the preparation and filing
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"), of a Registration
Statement on Form S-3 (the "Registration Statement") relating to up to an
aggregate amount of $50,000,000 of Common Stock, $3.33 1/3 par value (the
"Common Stock"), and/or First Mortgage Bonds (the "Bonds") to be issued by
the Company.
As such counsel, I have:
(a) reviewed the action heretofore taken by the Board of Directors of the
Company in connection with the authorization of the issuance and sale of
the Common Stock and the Bonds and related matters;
(b) reviewed the Registration Statement, which I understand you propose
to file with the Securities and Exchange Commission under the Securities
Act of 1933 on the date hereof; and
(c) made such examination of law and examined originals, or copies,
certified or otherwise authenticated to our satisfaction, of all such
other corporate records, instruments, certificates of public officials
and/or bodies, certificates or officers and representatives of the
Company, and such other documents, and discussed with officers and
representatives of the Company such questions of fact, as I have deemed
necessary in order to render the opinion hereinafter expressed.
Based on the foregoing, I am pleased to advise you that, in my opinion:
1. The Company is a corporation duly organized, incorporated and validly
existing under the laws of the State of Vermont, and has all corporate and
other power and authority necessary to own its properties and carry on the
business which it is presently conducting.
2. When (i) the Registration Statement has become effective, (ii) the
Public Service Board of the State of Vermont has issued an order
consenting to and approving the issue and sale of the Common Stock, (iii)
the Common Stock has been duly listed on the New York Stock Exchange, (iv)
the issuance and sale of the Common Stock have been duly authorized by
appropriate corporate action, (v) the Common Stock has been duly issued
and sold and delivered and paid for as contemplated by the underwriting
agreement to be executed by the Company with respect thereto, then the
Common Stock will be validly issued, fully-paid and nonassessable.
3. When (i) the Registration Statement has become effective, (ii) the
Public Service Board of the State of Vermont has issued an order
consenting to and approving the issue and sale of the Bonds, (iii) the
Indenture dated as of February 1, 1955 between the Company and United
States Trust Company of New York (successor to The Chase Manhattan Bank
(National Association), successor to the Chase National Bank of the City
of New York) (as heretofore amended and supplemented by fifteen
supplemental indentures, the "Indenture" and as to be supplemented by the
proposed supplemental indenture relating to the Bonds (the "Sixteenth
Supplemental Indenture")), has been qualified under the Trust Indenture
Act of 1939, as amended, (iv) the Sixteenth Supplemental Indenture to the
Indenture has been duly executed and delivered by the Company and the
Trustee, (v) the issuance and sale of the Bonds have been duly authorized
by appropriate corporate action, and (vi) the Bonds have been duly issued
and authenticated in accordance with the terms of the Indenture and such
Sixteenth Supplemental Indenture and delivered and paid for as
contemplated by the distribution agreement to be executed by the Company
with respect thereto, the Bonds will be legally issued by the Company and
will be valid and binding obligations of the Company except as may be
limited by applicable bankruptcy, insolvency, moratorium, fraudulent
conveyance and transfer, reorganization and other laws affecting
enforcement of creditors' rights generally.
I hereby consent to:
A. being named in the Registration Statement and in any amendment thereto
under the heading "Legal Opinions and Experts";
B. the making in said Registration Statement and in any amendments
thereto of the statements now appearing in said Registration Statement
under the heading "Legal Opinions and Experts" insofar as they are
applicable to me; and
C. the filing of this opinion as an exhibit to the Registration
Statement.
I understand that a copy of this opinion is being delivered to Hunton &
Williams, special counsel to the Company in connection with the
registration of the Common Stock and the Bonds, who are also rendering an
opinion to the Company relating to the matters referred to herein and that
their opinion will be filed as an exhibit to the Registration Statement.
In rendering their opinion, Hunton & Williams are authorized to rely upon
this opinion as to all matters of Vermont law involved in the conclusions
expressed in their opinion.
Very truly yours,
Peter H. Zamore
General Counsel
Exhibit 12
<TABLE>
Green Mountain Power Corporation
Computation of Ratio of Earnings to Fixed Charges
<CAPTION>
Year Ended December 31,
Twelve Months Ended ---------------------------------------------
March 31, 1995 1994 1993 1992 1991 1990
------------------- ---------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Net earnings $10,306 $11,052 $10,764 $12,296 $10,260 $9,090
Income taxes 6,087 5,917 5,922 6,451 5,795 4,691
Fixed charges 9,838 9,777 9,370 9,332 9,303 9,373
------------------- ---------------------------------------------
Total earnings $26,231 $26,746 $26,056 $28,079 $25,358 $23,154
=================== =============================================
Fixed Charges:
Interest $8,109 $8,043 $7,590 $7,518 $7,517 $7,600
Amortization of debt premium and discount 138 138 102 85 48 44
Interest portion of rental payments 1,591 1,596 1,678 1,729 1,738 1,729
------------------- ---------------------------------------------
Total fixed charges $9,838 $9,777 $9,370 $9,332 $9,303 $9,373
=================== =============================================
Ratio of earnings to fixed charges 2.67 2.74 2.78 3.01 2.73 2.47
=================== =============================================
</TABLE>
Exhibit 25
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) _______
UNITED STATES TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5459866
(Jurisdiction of incorporation (I.R.S. employer
if not a U.S. national bank) identification No.)
114 West 47th Street 10036-1532
New York, NY (Zip Code)
(Address of principal
executive offices)
Green Mountain Power Corporation
(Exact name of obligor as specified in its charter)
Vermont 03-0127430
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
25 Green Mountain Drive
South Burlington, Vermont 05402
(Address of principal executive offices) (Zip Code)
First Mortgage Bonds, Secured Notes Series A
(Title of the indenture securities)
GENERAL
1. General Information
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Reserve Bank of New York (2nd District), New York, New York
(Board of Governors of the Federal Reserve System)
Federal Deposit Insurance Corporation, Washington, D.C.
New York State Banking Department, Albany, New York
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. Affiliations with the Obligor
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None
3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15:
Green Mountain Power Corporation currently is not in default under any
of its outstanding securities for which United States Trust Company of
New York is Trustee. Accordingly, responses to Items 3, 4, 5, 6, 7, 8,
9, 10, 11, 12, 13, 14 and 15 of Form T-1 are not required under General
Instruction B.
16. List of Exhibits.
T-1.1 - "Chapter 204, Laws of 1853, An Act to Incorporate the United
States Trust Company of New York, as Amended", is incorporated
by reference to Exhibit T-1.1 to Form T-1 filed on September 20,
1991 with the Securities and Exchange Commission (the
"Commission") pursuant to the Trust Indenture Act of 1939
(Registration No. 2221291).
T-1.2 - The trustee was organized by a special act of the New York
Legislature in 1853 prior to the time that the New York Banking
Law was revised to require a Certificate of authority to
commence business. Accordingly, under New York Banking Law, the
Charter (Exhibit T-1.1) constitutes an equivalent of a
certificate of authority to commence business.
T-1.3 - The authorization of the trustee to exercise corporate trust
powers is contained in the Charter (Exhibit T-1.1).
T-1.4 - The By-laws of the United States Trust Company of New York, as
amended to date, are incorporated by reference to Exhibit T-1.4
to Form T-1 filed on September 20, 1991 with the Commission
pursuant to the Trust Indenture Act of 1939 (Registration No.
2221291).
T-1.6 - The consent of the trustee required by Section 321(b) of the
Trust Indenture Act of 1939.
T-1.7 - A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising
or examining authority.
NOTE
As of May 4, 1995, the trustee had 2,999,020 shares of Common Stock
outstanding, all of which are owned by its parent company, U.S. Trust
Corporation. The term "trustee" in Item 2, refers to each of United
States Trust Company of New York and its parent company, U. S. Trust
Corporation.
In answering Item 2 in this statement of eligibility as to matters
peculiarly within the knowledge of the obligor or its directors, the
trustee has relied upon information furnished to it by the obligor and
will rely on information to be furnished by the obligor and the trustee
disclaims responsibility for the accuracy or completeness of such
information.
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, United States Trust Company of New York, a corporation organized
and existing under the laws of the State of New York, has duly caused this
statement of eligibility and qualification to be signed on its behalf by
the undersigned, thereunto duly authorized, all in the City of New York,
and State of New York, on the 4th day of May, 1995.
UNITED STATES TRUST COMPANY OF
NEW YORK, Trustee
By:
/s/Robert E. Patterson III
Assistant Vice President
Exhibit T-1.6
The consent of the trustee required by Section 321(b) of the Act.
United States Trust Company of New York
114 West 47th Street
New York, NY 10036
March 19, 1992
Securities and Exchange Commission
450 5th Street, N.W.
Washington, DC 20549
Gentlemen:
Pursuant to the provisions of Section 321(b) of the Trust Indenture Act of
1939, as amended by the Trust Indenture Reform Act of 1990, and subject to
the limitations set forth therein, United States Trust Company of New York
("U.S. Trust") hereby consents that reports of examinations of U.S. Trust
by Federal, State, Territorial or District authorities may be furnished by
such authorities to the Securities and Exchange Commission upon request
therefor.
Very truly yours,
UNITED STATES TRUST COMPANY
OF NEW YORK
By: /s/Gerard F. Ganey
Senior Vice President
EXHIBIT T-1.7
Consolidated Report of Condition of
United States Trust Company of New York
and Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business on December 31, 1994, published in
accordance with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository institutions:
a. Noninterest bearing balances and
currency and coin $ 164,610
b. Interest bearing balances: 21,524
Securities: 1,033,526
Federal funds sold and securities purchased under
agreements to resell 120,000
Loans 1,626,898
LESS: Allowance credit losses 14,699
Net Loans 1,612,199
Premises and Equipment: 109,346
Other assets: 162,006
-----------
TOTAL ASSETS: $ 3,223,211
===========
LIABILITIES
Deposits: $ 2,440,371
(1) Non interest bearing: 1,031,538
(2) Interest bearing: 1,408,833
Federal funds purchased, securities sold under
agreements to repurchase and other borrowings: 350,515
Accounts Payable & Accrued Liabilities 148,078
Long Term Debt 60,924
-----------
TOTAL LIABILITIES: $ 2,999,888
===========
EQUITY CAPITAL
Common Stock: $ 11,581
Capital Surplus: 72,605
Treasury Stock, at cost: (86,139)
Loan to ESOP (16,171)
Net unrealized holding gains (losses) on
available-for-sale securities (3,192)
TOTAL EQUITY CAPITAL: $ 223,323
------------
TOTAL LIABILITY AND EQUITY CAPITAL: $ 3,223,211
============
I, RICHARD E. BRINKMANN, SENIOR VICE PRESIDENT & CONTROLLER, of the above-
named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
RICHARD E. BRINKMANN, SVP & CONTROLLER
December 31, 1994
We, the undersigned directors, attest the correctness of this Report of
Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve
System and is true and correct.
H. MARSHALL SCHWARZ | Directors
JEFFREY S. MAURER |
FREDERICK S. WONHAM |
