SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________
FORM 10-Q
X Quarterly report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended September 30, 1998
or
Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from ___________ to ___________
Commission file number 1-8291
GREEN MOUNTAIN POWER CORPORATION
(Exact name of registrant 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, VT 05403
Address of principal executive offices (Zip Code)
Registrant's telephone number, including area code (802) 864-5731
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes X No
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Class - Common Stock Outstanding September 30, 1998
$3.33 1/3 Par Value 5,277,762
<TABLE>
<CAPTION>
GREEN MOUNTAIN POWER CORPORATION
Consolidated Comparative Balance Sheets
Part 1 - Item 1
September 30 December 31
----------------------------------- ----------------
1998 1997 1997
---------------- ---------------- ----------------
(Unaudited)
(In thousands) (In thousands)
ASSETS
<S> <C> <C> <C>
Utility Plant
Utility plant, at original cost.................... $272,276 $260,165 $265,441
Less accumulated depreciation...................... 94,623 87,065 87,689
---------------- ---------------- ----------------
Net utility plant................................ 177,653 173,100 177,752
Property under capital lease....................... 8,342 9,006 8,342
Construction work in progress...................... 11,158 13,877 10,626
---------------- ---------------- ----------------
Total utility plant, net......................... 197,153 195,983 196,720
---------------- ---------------- ----------------
Other Investments
Associated companies, at equity.................... 16,324 15,684 15,860
Other investments.................................. 5,515 5,408 6,137
---------------- ---------------- ----------------
Total other investments.......................... 21,839 21,092 21,997
---------------- ---------------- ----------------
Current Assets
Cash............................................... 129 186 118
Accounts receivable, customers and others,
less allowance for doubtful accounts............. 13,946 15,567 17,365
Accrued utility revenues........................... 5,383 5,424 6,505
Fuel, materials and supplies, at average cost...... 3,377 3,544 3,261
Prepayments........................................ 9,523 786 1,563
Prepaid taxes...................................... 1,513 -- --
Other.............................................. 1,404 841 313
---------------- ---------------- ----------------
Total current assets............................. 35,275 26,348 29,125
---------------- ---------------- ----------------
Deferred Charges
Demand side management programs.................... 11,087 13,896 13,692
Purchased power costs.............................. 7,258 11,219 4,283
Other.............................................. 12,620 10,404 9,415
---------------- ---------------- ----------------
Total deferred charges........................... 30,965 35,519 27,390
---------------- ---------------- ----------------
Non-Utility
Cash and cash equivalents.......................... 42 442 153
Other current assets............................... 8,254 7,768 11,501
Property and equipment............................. 1,217 10,879 10,784
Intangible assets.................................. 19 2,161 2,116
Equity investment in energy related businesses..... 12,351 13,642 12,824
Other assets....................................... 5,000 12,503 4,682
---------------- ---------------- ----------------
Total non-utility assets......................... 26,883 47,395 42,060
---------------- ---------------- ----------------
Total Assets........................................... $312,115 $326,337 $317,292
================ ================ ================
CAPITALIZATION AND LIABILITIES
Capitalization
Common Stock Equity
Common stock,$3.33 1/3 par value,
authorized 10,000,000 shares (issued
5,261,906, 5,166,503, and 5,195,432).......... $17,717 $17,203 $17,318
Additional paid-in capital....................... 71,570 70,315 70,720
Retained earnings................................ 21,566 26,949 26,717
Treasury stock, at cost (15,856 shares).......... (378) (378) (378)
---------------- ---------------- ----------------
Total common stock equity...................... 110,475 114,089 114,377
Redeemable cumulative preferred stock.............. 16,335 17,910 17,735
Long-term debt, less current maturities............ 88,500 93,200 93,200
---------------- ---------------- ----------------
Total capitalization........................... 215,310 225,199 225,312
---------------- ---------------- ----------------
Capital lease obligation............................... 8,342 9,006 8,342
---------------- ---------------- ----------------
Current Liabilities
Current maturuties of long-term debt............... 1,700 1,700 1,700
Short-term debt.................................... 8,500 14,016 2,616
Accounts payable, trade, and accrued liabilities... 5,910 4,046 6,828
Accounts payable to associated companies........... 5,714 6,157 7,661
Dividends declared................................. 327 354 350
Customer deposits.................................. 171 547 721
Taxes accrued...................................... -- 832 2,843
Interest accrued................................... 1,878 2,066 1,311
Other.............................................. 1,928 824 1256
---------------- ---------------- ----------------
Total current liabilities...................... 26,128 30,542 25,286
---------------- ---------------- ----------------
Deferred Credits
Accumulated deferred income taxes.................. 27,319 27,581 23,501
Unamortized investment tax credits................. 4,331 4,593 4,542
Pine Street marsh cleanup.......................... 5,000 -- --
Other.............................................. 18,322 16,557 17,239
---------------- ---------------- ----------------
Total deferred credits......................... 54,972 48,731 45,282
---------------- ---------------- ----------------
Non-Utility
Current liabilities................................ 316 1,133 1,119
Other liabilities.................................. 7,047 11,726 11,951
---------------- ---------------- ----------------
Total non-utility liabilities.................. 7,363 12,859 13,070
---------------- ---------------- ----------------
Total Capitalization and Liabilities................... $312,115 $326,337 $317,292
================ ================ ================
The accompanying notes are an integral part of the consolidated financial statements.
</TABLE>
<TABLE>
<CAPTION>
GREEN MOUNTAIN POWER CORPORATION
Consolidated Comparative Income Statements
(Unaudited)
Part 1 - Item 1
Three Months Ended Nine Months Ended
September 30 September 30
------------------------------- -------------------------------
1998 1997 1998 1997
------------ ------------ ------------ ------------
(In thousands, except amounts per share)
<S> <C> <C> <C> <C>
Operating Revenues............................................ $47,984 $43,574 $138,648 $133,460
------------ ------------ ------------ ------------
Operating Expenses
Power Supply
Vermont Yankee Nuclear Power Corporation................. 8,374 8,037 24,520 24,276
Company-owned generation................................. 1,307 1,441 5,336 3,486
Purchases from others.................................... 19,582 13,246 59,082 45,974
Other operating............................................. 5,485 4,323 14,742 12,565
Transmission................................................ 2,393 2,503 7,061 8,464
Maintenance................................................. 1,199 1,143 3,663 3,402
Depreciation and amortization............................... 3,878 4,015 12,181 12,407
Taxes other than income..................................... 1,733 1,915 5,499 5,523
Income taxes................................................ 886 2,409 291 5,580
------------ ------------ ------------ ------------
Total operating expenses................................. 44,837 39,032 132,375 121,677
------------ ------------ ------------ ------------
Operating Income....................................... 3,147 4,542 6,273 11,783
------------ ------------ ------------ ------------
Other Income
Equity in earnings of affiliates and non-utility operations. 542 449 231 579
Allowance for equity funds used during construction......... 51 85 149 479
Other income and deductions, net............................ 215 202 (671) 603
------------ ------------ ------------ ------------
Total other income........................................ 808 736 (291) 1,661
------------ ------------ ------------ ------------
Income before interest charges.......................... 3,955 5,278 5,982 13,444
------------ ------------ ------------ ------------
Interest Charges
Long-term debt.............................................. 1,704 1,818 5,287 5,508
Other....................................................... 370 208 714 369
Allowance for borrowed funds used during construction....... (62) (119) (168) (348)
------------ ------------ ------------ ------------
Total interest charges.................................... 2,012 1,907 5,833 5,529
------------ ------------ ------------ ------------
Net Income.................................................... 1,943 3,371 149 7,915
Dividends on preferred stock.................................. 310 349 991 1,097
------------ ------------ ------------ ------------
Net Income Applicable to Common Stock......................... $1,633 $3,022 ($842) $6,818
============ ============ ============ ============
Common Stock Data
Earnings per share.......................................... $0.48 $0.59 $0.00 $1.34
Cash dividends declared per share........................... $0.275 $0.275 $0.825 $1.335
Weighted average shares outstanding......................... 5,261 5,138 5,226 5,093
Consolidated Comparative Statements of Retained Earnings
(Unaudited)
Balance - beginning of period................................. $21,379 $25,344 $26,717 $26,916
Net Income.................................................... 1,943 3,371 149 7,915
------------ ------------ ------------ ------------
23,322 28,715 26,866 34,831
------------ ------------ ------------ ------------
Cash Dividends - redeemable cumulative preferred stock........ 310 349 991 1,097
- common stock................................. 1,446 1,417 4,309 6,785
------------ ------------ ------------ ------------
1,756 1,766 5,300 7,882
------------ ------------ ------------ ------------
Balance - end of period....................................... $21,566 $26,949 $21,566 $26,949
============ ============ ============ ============
The accompanying notes are an integral part of the consolidated financial statements.
</TABLE>
<TABLE>
<CAPTION>
GREEN MOUNTAIN POWER CORPORATION
Consolidated Statements of Cash Flows
(Unaudited)
Part 1 - Item 1
Nine Months Ended
September 30
---------------------------------------
1998 1997
----------------- -----------------
(In thousands)
<S> <C> <C>
Operating Activities:
Net Income............................................................ $149 $7,915
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization..................................... 12,181 12,407
Dividends from associated companies less equity income............ (464) 85
Allowance for funds used during construction...................... (317) (826)
Amortization of purchased power costs............................. 4,833 (2,969)
Deferred income taxes............................................. 3,818 855
Deferred purchased power costs.................................... (7,808) (44)
Amortization of investment tax credits............................ (212) (232)
Environmental proceedings costs, net.............................. 3,078 (869)
Conservation expenditures......................................... (1,165) (1,482)
Changes in:
Accounts receivable............................................. 3,419 2,166
Accrued utility revenues........................................ 1,123 1,238
Fuel, materials and supplies.................................... (115) 77
Prepayments and other current assets............................ (5,805) (2,770)
Accounts payable................................................ (2,865) (2,558)
Taxes accrued................................................... (4,356) (154)
Interest accrued................................................ 567 685
Other current liabilities....................................... (705) (753)
Other............................................................. (1,632) (2,212)
----------------- -----------------
Net cash provided by operating activities........................... 3,724 10,559
----------------- -----------------
Investing Activities:
Construction expenditures........................................... (9,220) (12,366)
Investment in nonutility property................................... 230 (765)
Proceeds from sale of propane subsidiary............................ 11,500
----------------- -----------------
Net cash provided by (used in) investing activities............... 2,510 0 (13,131)
----------------- -----------------
Financing Activities:
Issuance of common stock............................................ 1,249 2,502
Short-term debt, net................................................ 5,884 13,000
Cash dividends...................................................... (5,300) (7,882)
Reduction in preferred stock........................................ (1,400) (1,400)
Reduction in long-term debt......................................... (6,767) (3,769)
----------------- -----------------
Net cash provided by (used in) financing activities............... (6,334) 2,451
----------------- -----------------
Net decrease in cash and cash equivalents........................... (100) (121)
Cash and cash equivalents at beginning of period.................... 271 749
----------------- -----------------
Cash and Cash Equivalents at End of Period.............................. $171 $628
================= =================
Supplemental Disclosure of Cash Flow Information:
Cash paid year-to-date for:
Interest (net of amounts capitalized)............................ $5,239 $5,019
Income taxes..................................................... 1,536 3,854
The accompanying notes are an integral part of the consolidated financial statements.
</TABLE>
GREEN MOUNTAIN POWER CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
September 30, 1998
Part 1 -- ITEM 1
1. SIGNIFICANT ACCOUNTING POLICIES
The rates we charge our customers for their electricity are set by
the Vermont Public Service Board (VPSB), which is the regulatory
commission in Vermont. We charge our customers higher rates for billing
cycles in December through March and lower rates for the remaining
months. These are called "seasonally differentiated rates". In order
to eliminate the impact of the seasonally differentiated rates, we defer
some of the revenues from those four months and account for them in
later periods in which we have lower revenues or higher costs. By
deferring certain revenues we are able to match our revenues to our
costs more accurately.
On September 30, 1998 there was a deferred charge balance of
$1,100,000 compared to $378,000 for the same period of 1997. The
significant difference in the amount of deferrals between the two years
is due to increased sales of electricity in the summer month's of 1998
and the resulting increased revenues.
In our pending rate increase case (discussed below), we have asked
the VPSB to approve a new rate design that would eliminate the seasonal
rate differential, since our analysis indicates that our customers'
electricity usage is leveling out over the twelve month period.
Financial summary of unregulated operations
The Company has five unregulated, wholly-owned subsidiaries:
Mountain Energy, Inc., Green Mountain Propane Gas Limited, GMP Real
Estate Corporation, Lease-Elec, Inc. and Green Mountain Resources, Inc.
We also have a rental water heater program that is not regulated by the
VPSB. The results of the operations of these subsidiaries and the
rental water heater program are included in earnings of affiliates and
non-utility operations in the Other Income section of the Consolidated
Comparative Income Statements. A financial summary for these businesses
follows:
Three months ended Nine months ended
September 30 September 30
------------------ -----------------
1998 1997 1998 1997
---- ---- ---- ----
(in thousands) (in thousands)
Revenue $936 $2,362 $3,045 $8,397
Expense 933 2,411 4,336 9,383
---- ------ ------- -------
Net Income $ 3 $ (49) $(1,291) $ (986)
==== ====== ======== =======
2. INVESTMENT IN ASSOCIATED COMPANIES
We recognize net income in our affiliates (companies in which we
have ownership interests) listed below based on our percentage ownership
(equity method).
Vermont Yankee Nuclear Power Corporation
Three Months Ended Nine Months Ended
September 30 September 30
------------------- -----------------
1998 1997 1998 1997
---- ---- ---- ----
(In Thousands) (In Thousands)
Gross Revenue . . . . . $43,186 $41,967 $152,269 $126,771
Net Income Applicable
to Common Stock . . . 1,816 1,721 5,324 5,244
Company's Equity in
Net Income . . . . . 334 315 947 961
Vermont Electric Power Company, Inc.
Three Months Ended Nine Months Ended
September 30 September 30
------------------ -----------------
1998 1997 1998 1997
---- ---- ---- ----
(In Thousands) (In Thousands)
Gross Revenue . . . . . . $7,800 $12,702 $28,480 $37,838
Net Income
Before Dividends . . . 274 267 858 976
Company's Equity in
Net Income (Includes
preferred equity) . . . 84 75 247 280
3. ENVIRONMENTAL MATTERS
The electric industry typically uses or generates a range of
potentially hazardous products in its operations. The Company must meet
various land, water, air and aesthetic requirements as administered by
local, state and federal regulatory agencies. We believe that we are in
substantial compliance with these requirements, and that there are no
outstanding material complaints about our compliance with present
environmental protection regulations, except for developments related to
the Pine Street Barge Canal site. See the Company's Annual Report on
Form 10-K for the year ended December 31, 1997 - "Management's
Discussion and Analysis of Financial Condition and Results of
Operations-Environmental Matters".
We maintain a program to ensure that we are in compliance with
environmental regulations. This includes employee training, regular
inspection of our facilities, research and development projects, waste
handling and spill prevention procedures, program monitoring and other
activities.
Pine Street Barge Canal site
As of September 30,1998, our total expenditures related to the Pine
Street Barge Canal site were approximately $16 million. The bulk of
these expenditures consisted of transaction costs, that is, legal and
consulting costs associated with the Company's opposition to the United
States Environmental Protection Agency's (the EPA) earlier proposals for
the site and with the Coordinating Council work, as well as litigation
and related costs necessary to obtain settlements with insurers and
other parties to provide amounts required to fund the clean up
(remediation costs) and to address liability claims at the site. A
smaller amount of past expenditures were related to actual site
remediation including costs incurred pursuant to the EPA and state
orders that resulted in funding response activities at the site, and to
reimbursing the EPA and the state for oversight and related response
costs. The EPA and the State have asserted and affirmed that all costs
related to these orders are appropriate costs of response under CERCLA
for which the Company and other potentially response parties (PRP's)
were legally responsible.
We estimate that we have or will recover, through past settlements
of litigation claims against insurers and other parties, amounts that
exceed estimated future remediation costs, federal and state government
oversight costs and past EPA response costs. We have concluded that our
unrecovered transaction costs mentioned above, which were necessary to
recover settlements sufficient to remediate the site, and to oppose much
more costly solutions proposed by the EPA, are likely to be in the range
of $5 and $9 million. We have recorded a liability of $5 million in the
third quarter to recognize the low end of this range of costs. The
estimated liability is not discounted, and it is possible that our
estimate of future costs could change by a material amount. We also
have recorded an offsetting regulatory asset and we believe that it is
probable that we will receive future revenues to recover these costs.
(See discussion of regulatory assets in Note 4) The discussion which
follows relates to various categories of site costs.
The EPA has made claims against the Company for past costs
associated with the Pine Street Barge Canal site in an amount exceeding
$11 million. See the Company's Annual Report on Form 10-K for year
ended December 31, 1997. The EPA also has advised the Company that it
may be responsible for implementation of further response activities at
the site. In early 1998, the United States and the State of Vermont
asked us to begin "fast-track" negotiation of tentative terms of
settlement of all cost reimbursement and natural resource damages claims
of the United States and the State of Vermont. Those negotiations began
immediately, and included discussion of the Company's potential
contribution claims against the United States. In May 1998, a
confidential tentative agreement was reached on issues under discussion.
In June 1998, the Coordinating Council, a stakeholders group
established by the EPA, the State and other interested parties in 1994,
reached a consensus agreement on a recommended plan for remediation of
the Pine Street Barge Canal site. The recommended plan was subject to
change in the EPA's Record of Decision, which had not then been issued.
As part of the Council's process of reaching a consensus recommendation,
the Company and certain other parties conditionally agreed to fund
environmentally beneficial projects in the Lake Champlain region, the
cost of which may reach $3 million. In June 1998, the EPA formally
proposed the Council's recommended plan and received public comments.
On September 29, 1998, the EPA issued its final Record of Decision,
announcing selection of the proposed remedy, which includes construction
of an underwater cover over canal sediments that present the highest
risk to the environment, placement of a soil cap over certain
contaminated wetland areas and restoration of those areas, improvements
that will better distribute storm water entering the site, and
monitoring of the site to ensure that the cap is effective over the long
term and that harmful contamination does not migrate offsite. The EPA
estimates that the present value cost of the remedy will be $4.4
million, but actual costs may be higher.
We expect to complete negotiation soon of a final settlement with
the United States and the State of Vermont that covers claims addressed
in the earlier negotiations and implementation of the selected remedy.
That settlement must be submitted to a federal court for approval and
adoption as its order. We have entered into various confidential
settlement agreements with other potentially responsible parties that
provide for sharing of past response costs, future cleanup costs and
related future federal and state monetary claims.
4. 1997 Retail Rate Case
On June 16, 1997, we filed a request with the VPSB to increase our
retail rates by 16.7 percent ($26 million in additional annual revenues)
and to increase the target return on common equity from 11.25 percent to
13 percent. In our final submissions to the VPSB we asked for an
increase of 14.4 percent ($22 million in additional annual revenues) to
cover increased cost of service. On March 2, 1998, the VPSB released
its Order dated February 27, 1998 in the then pending rate case. The
VPSB authorized us to increase our rates by 3.61 percent, which gave us
increased annual revenues of $5.6 million.
The difference between the $22 million we asked for and the $5.6
million the VPSB authorized was due to the following:
disallowance of the cost of power associated with the Hydro-Quebec
Contract discussed below;
the VPSB's modification of our calculation of rate base;
the exclusion of future capital projects from rate base;
discontinued recovery of Pine Street Barge Canal site expenditures;
various cost of service reductions in payroll and operations and
maintenance, and
a reduction in our requested allowed return on equity from 13
percent to 11.25 percent.
The VPSB Order denied us the right to charge customers $5.48
million of the costs for power purchased under our contract with Hydro-
Quebec. The VPSB denied recovery of these costs for the following
reasons:
The VPSB claimed that we had acted imprudently by committing to the
power contract with Hydro-Quebec in August 1991 (the imprudence
disallowance), and
to the extent that the costs of power to be purchased from Hydro-
Quebec are now higher than current estimates of market prices for
power during the Contract term, after accounting for the imprudence
disallowance, the contract power is not "used and useful".
Generally accepted accounting principles (GAAP) required that we
record the disallowed portion of the 1998 Hydro-Quebec power contract
costs in the first quarter of 1998. The amount charged to first quarter
income of $4.6 million was less than the full disallowance because we
expect that new rates will become effective in January 1999 as the result
of our May 8, 1998 rate filing. Whether any additional Hydro-Quebec
disallowances will occur depends on the outcome of our 1998 rate case.
(See Note 5 of the Notes to Consolidated Financial Statements.)
In its Order, the VPSB talked about its policies that do not allow
a utility to recover imprudent expenditures and the costs of power
supply contract purchases that the VPSB decides are not used and useful.
The VPSB also stated in its Order that the methods and measures used in
this rate case were provisional and applied to this rate case only. If
the VPSB were to apply the same, or similar, methods and measures that
they used in the 1997 rate case Order to future power contract costs in
our pending rate case (See 1998 Retail Rate Case), we would likely be
required to take a charge to income of approximately $180 million
pretax. The $180 million estimate is based on the estimated future
market price of power that the VPSB used in its Order. We will not be
able to estimate the loss to be recorded, if any, until the 1998 pending
rate case is completed
If the VPSB does not modify in future regulatory proceedings its
ruling that the costs of power purchased from Hydro-Quebec are above
estimated market rates and are not used and useful and, therefore, a
portion of such costs is not recoverable, we would likely be required to
conclude that the VPSB has changed its approach to setting rates from
cost-based rate making to another form of regulation. We would then be
required to discontinue application of Statement of Financial Accounting
Standards No. 71(SFAS 71), Accounting for the Effects of Certain Types
of Regulation, described below, and eliminate all regulatory assets and
liabilities that arose from prior actions of the VPSB. The write-off of
these regulatory assets and liabilities, net of any tax effects, would
be included in income as an extraordinary item for the financial
reporting period in which the discontinuation of SFAS 71 occurs.
SFAS 71 provides guidance in preparing financial statements for
public utilities that meet certain criteria of SFAS 71. The three
criteria that we must meet in order to follow the accounting guidance
under SFAS 71 are:
Our rates for regulated services and products provided to our
customers must be established by or be subject to approval by an
independent, third-party regulator;
The regulated rates are designed to recover our specific costs of
providing the regulated services or products; and
Depending on demand for regulated services and products, and the
level of competition, direct and indirect, it is reasonable to
assume that our rates are set at levels that will recover our
costs and that these rates can be charged to and collected from
our customers. This criterion must also take into account
anticipated changes in levels of demand or competition during the
recovery period for any capitalized costs.
We meet the criteria described above at present and, therefore the
provisions of SFAS 71 apply to us. Under SFAS 71 we are required to
defer certain costs that would typically be expensed under GAAP; these
costs are referred to as deferred charges or regulatory assets.
Our ability to defer a cost is subject to our ability to provide
evidence that the following additional criteria are met:
It is probable that the inclusion of the capitalized [deferred]
cost in allowed costs for rate making purposes will provide
future revenue in an amount at least equal to the capitalized
[deferred] cost; and
The future revenue will be provided to permit recovery of the
previously incurred cost rather than to provide for expected
levels of similar future costs.
Based on the September 30, 1998 balance sheet, if we were required
to discontinue the application of SFAS 71 we would be required to take
an after-tax charge to earnings of approximately $25 million
attributable to net regulatory assets.
Immediately following the issuance of the June 8, 1998 VPSB order
on our Motion for Reconsideration of the VPSB's Order issued March 2,
1998, which largely reaffirmed the earlier Order, Duff & Phelps and
Standard & Poor's lowered our securities credit ratings. See
"Management's Discussion and Analysis of Financial Condition and Results
of Operations-Liquidity and Capital Resources".
In June 1998, we appealed the VPSB's February 27 order and the June
8 reconsideration order to the Vermont Supreme Court. The briefing of
the case by all parties is expected to be complete by January 1999, at
which time the appeal will be ready for argument to the court and then
decision. A number of other Vermont utilities have submitted briefs in
support of the Company.
We believe that the decisions in the VPSB's Order and
Reconsideration Order are factually inaccurate and legally incorrect.
Specifically, we are appealing the VPSB's determination that we were
imprudent in committing to the Hydro-Quebec contract in August, 1991,
and its ruling that because the contract power is priced over-market
under current forecasts of market prices, it is therefore considered
"not used and useful". GMP asserts, among other arguments, that the
VPSB's order deprives the Company's shareholders of their property in an
unconstitutional manner. The VPSB's decision if not changed, could have
a significant negative impact on our reported financial condition, and
could impact our credit ratings, dividend policy and financial
viability.
5. 1998 Retail Rate Case
On May 8, 1998, we filed a request with the VPSB to increase our
retail rates by 12.93 percent. We need the retail rate increase because
of the following:
the higher cost of power;
the cost of the January 1998 ice storm; and
investments in new plant and equipment.
The VPSB suspended the tariff filings on June 15, 1998. The new
rates are expected to become effective as of January 29, 1999.
We submitted testimony in the case that includes analysis of viable
alternatives to the Hydro-Quebec contract at various times in 1991 and
1992. The VPSB had taken the viewpoint in our 1997 rate case that we
would have been able to terminate the Hydro-Quebec contract without
penalty during that time period, and would have been able to access the
market for power at that time. Our analysis shows that, based on price
only, the Hydro Quebec contract was less expensive than virtually all
other long term power resources available at that time. The analysis
also shows that when other non-price benefits, like environmental
benefits and the reliability of a system power resource, are taken into
account, the Hydro-Quebec contract was still less costly than
alternatives. We have testified that even today, when costs and
benefits for society are accounted for, as Vermont regulators and
statutes require, the Hydro-Quebec power is not more costly than market
power.
In testimony submitted on September 21, 1998, the Vermont
Department of Public Service (the Department) argued for the following:
a $22 million disallowance of Hydro-Quebec contract costs,
a rate decrease of 3.6 percent,
the elimination of our common stock dividend, and
various other restrictions.
Additionally, the Department's recommendation was that
approximately $12.5 million of the disallowance of Hydro-Quebec contract
costs be suspended for one year, which would provide us with a 4.5
percent rate increase only for that year, followed by automatic
reinstatement of the larger power cost disallowance with a resulting
decrease (in 2000) from our rate levels today, absent further VPSB
order. The Department recommends this one year delay in the Hydro-
Quebec Contract cost disallowance because the Department believes that
during 1999 we can try to negotiate with Hydro-Quebec to lower the costs
of power under the contract.
IBM, our largest customer, has also argued for a rate decrease of
0.2 percent, a disallowance of Hydro-Quebec power costs in the amount of
$13 million, and the elimination of the common stock dividend.
Hearings on the initial testimony of the parties have been
completed and rebuttal testimony is expected to be submitted by November
16, 1998.
In GMP's rebuttal case, we will present the VPSB with testimony
that;
The Department's and IBM's recommendations amount to improper
ratemaking that will have adverse economic and accounting
impacts under applicable accounting rules;
the only cogent evidence of alternative portfolios of power
resources available in 1991 presented to the VPSB is from
GMP's witnesses, and justifies a determination that there
should be no Hydro-Quebec power contract cost disallowance;
and
we require substantial rate relief in order to ensure our
financial stability, access to capital markets and the
continuation of adequate, reliable and safe service to our
customers.
We also will present to the VPSB considerable evidence that:
we have made, and continue to make, efforts to achieve a
negotiated reformulation of the arrangement with Hydro-Quebec;
placing us at risk of bankruptcy will not improve our
prospects of achieving success in such a negotiation;
bankruptcy reorganization is not an appropriate public policy
solution to high power cost obligations; and
our default of obligations to Hydro-Quebec and other creditors
would cause substantial risks of default in the same
contractual relationships by many other Vermont utilities
under "step-up" or similar provisions contained in such
arrangements.
Although we intend to pursue vigorously a rate increase in our
current rate case, we are unable to give assurance that we will receive
the requested rate increase or that, if any rate increase is allowed by
the VPSB, it will be sufficient to provide for the continued financial
viability of the Company. We have retained special bankruptcy counsel
to advise us on the potential consequences to the Company, its
creditors, shareholders, employees and customers of the Company if we do
not get appropriate rate relief in this rate case. In the event we do
not receive an adequate rate increase, we will evaluate all potential
alternatives available to us at that time, including, but not limited
to, the filing of a petition for reorganization under the United States
Bankruptcy Code.
6. Liquidity
Note discussion of changes affecting the terms of the revolving
credit agreement in Management's Discussion and Analysis of Financial
Condition and Results of Operation - Liquidity and Capital Resources.
7. Corporate Headquarters Lease
Note discussion of options regarding the buying out or sub-leasing
of our corporate headquarters in Management's Discussion and Analysis of
Financial Condition and Results of Operation - Corporate Headquarters
Lease.
8. Reclassifications
Certain line items on the prior year's financial statements have
been reclassified for consistent presentation with the current year.
The Consolidated Financial Statements are unaudited
and, in the opinion of the Company, reflect the
adjustments necessary to a fair statement of the
results of the interim periods. All such
adjustments, except as specifically noted in the
Consolidated Financial Statements, are of a normal,
recurring nature.
GREEN MOUNTAIN POWER CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
September 30, 1998
Part 1 -- ITEM 2
In this section, we explain the general financial condition and the
results of operations for Green Mountain Power Corporation (the Company)
and its subsidiaries. This includes:
factors that affect our business,
our earnings and costs in the periods presented and why they
changed between periods,
the source of our earnings,
our expenditures for capital projects year-to-date and what we
expect they will be in the future,
where we expect to get cash for future capital expenditures,
and
how all of the above affects our overall financial condition.
As you read this section it may be helpful to refer to the
consolidated financial statements and notes in Part I-Item 1.
There are statements in this section that contain projections or
estimates and are considered to be "forward-looking" as defined by the
Securities and Exchange Commission. In these statements, you may find
words such as "believes," "expects," "plans," or similar words. These
statements are not guarantees of our future performance. There are
risks, uncertainties and other factors that could cause actual results
to be different from those projected. Some of the reasons the results
may be different are listed below and are discussed under "Competition
and Restructuring" and "Year 2000 Computer Compliance" in this section:
Regulatory decisions or legislation;
Weather;
Energy supply and demand and pricing;
Availability, terms, and use of capital ;
General economic and business risk;
Nuclear and environmental issues;
Changes in technology; and
Industry restructuring and cost recovery (including stranded
costs).
These forward-looking statements represent only our estimates and
assumptions as of the date of this report.
RESULTS OF OPERATIONS
Earnings Summary- Overview
In this section, we discuss our earnings and the factors affecting
them. We begin with a general overview, then separately discuss
earnings for the utility business and for our subsidiaries.
Total earnings per share of Common Stock
Three months ended Nine months ended
September 30, September 30,
------------------ -----------------
1998 1997 1998 1997
---- ---- ---- ----
Utility business $0.31 $0.60 $0.09 $1.53
Unregulated businesses $0.00 (0.01) (0.25) (0.19)
----- ------ ------- ------
Basic earnings per share $0.31 $0.59 ($0.16) $1.34
===== ====== ======= ======
Three months ended September 30, 1998
Earnings from our utility business in the third quarter of 1998
were less then earnings for the same period of 1997 because we had
higher power supply expenses that offset higher revenues. We had higher
utility revenues because of a 5.7 percent increase in sales to business
customers and a 3.6 percent retail rate increase that went into effect
in March of this year.
Earnings from our subsidiaries in the third quarter of 1998 were
basically unchanged from earnings in the same period of 1997. A
decrease in earnings by Mountain Energy Inc. (MEI) was offset by
improved results for Green Mountain Propane Gas (GMPG) and Green
Mountain Resource Inc. (GMRI).
MEI, our wholly owned subsidiary that invests in energy generation
and energy and waste water efficiency projects, experienced a $733,000
decrease in earnings compared to the same period in 1997. The decrease
was due to the continued start-up operating losses incurred by Micronair
LLC. Micronair is a company owned by MEI that owns patent rights in 35
states to a wastewater treatment process that solves sludge disposal
problems.
The $733,000 decrease in subsidiary earnings was more than offset
by a $478,000 improvement in GMRI's third quarter results and a $281,000
improvement in GMPG's third quarter results. GMRI is our subsidiary
that holds an interest in GMER, which had substantial start-up losses in
the third quarter of 1997. GMRI sold a majority interest in GMER in
1997. In addition, the Company's results benefited from the absence of
the losses experienced by GMPG, whose assets were sold earlier this
year. GMPG lost approximately $300,000 in the third quarter of 1997.
OPERATING REVENUES AND MWH SALES
Our revenues from operations, megawatthour (MWh) sales and average
number of customers for the three months and nine months ended September
30, 1998 and 1997 are summarized below:
Three Months Ended Nine Months Ended
September 30 September 30
1998 1997 1998 1997
Operating Revenues
(In thousands)
Retail . . . . . . . $ 41,705 $ 38,679 $ 122,871 $117,729
Sales for Resale . . 5,612 4,335 13,761 13,719
Other . . . . . . . 667 560 2,016 2,012
-------- -------- --------- --------
Total Operating
Revenues . . . . . $ 47,984 $ 43,574 $138,648 $133,460
======== ======== ========= ========
MWh Sales
Retail . . . . . . . . 459,044 438,240 1,369,974 1,337,309
Sales for Resale . . . 199,349 142,339 424,228 460,920
------- ------- --------- ---------
Total MWh Sales . . . 658,393 580,579 1,794,202 1,798,229
======= ======= ========= =========
Average Number of Customers
Residential . . . . . 71,449 70,692 71,268 70,612
Commercial &
Industrial . . . . . 12,233 12,018 12,171 11,991
Other . . . . . . . . 70 75 70 76
------ ------ ------- ------
Total Customers . . 83,752 82,785 83,509 82,679
====== ====== ======= ======
Revenues - three months ended September 30, 1998
Our operating revenue results from the retail and wholesale sales
of electricity.
Revenues from operations in the third quarter of 1998 increased
10.1 percent compared to the same period in 1997.
Our retail revenues in the third quarter of 1998 were 7.8 percent
higher than for the same period in 1997 for the following reasons:
A 3.6 percent retail rate increase that became effective in
March 1998;
a 4.4 percent increase in sales of electricity to small
commercial and industrial customers due to increased use of
air conditioning in July, August and September, and customer
growth;
our largest customer, IBM, increased its usage, which
contributed to a 7.1 percent increase in sales of electricity
to our large commercial and industrial customers; and
a 2.9 percent increase in sales of electricity to our
residential customers due to increased air conditioning usage
in July, August and September compared to the same period last
year.
We sell electricity wholesale to other utilities. Our revenue from
wholesale sales of electricity increased 29.5 percent in the third
quarter of 1998 compared to the same period in 1997. The increase was
primarily due to the purchase of power by Hydro-Quebec under an
agreement executed in 1997. (See Management's Discussion and Analysis of
Financial Condition and Results of Operations-Power Supply Expenses in
the Company's Annual Report on Form 10-K for the year ended December 31,
1997.)
Revenues-nine months ended September 30, 1998
During the nine month period ended September 30, 1998, our total
operating revenues increased 3.9 percent over the same period in 1997.
Our retail revenues increased 4.4 percent over the same period in
1997 primarily because our volume of sales of electricity to commercial
and industrial customers increased by 4.6 percent for the same reason
discussed above, and because of a 3.6 percent retail rate increase that
became effective March, 1998. Revenues from wholesale sales were largely
unchanged for the nine months ended September 30, 1998 compared to the
same period in 1997.
OPERATING EXPENSES
Power supply expenses--three months ended September 30, 1998
Our power supply expenses were 28.8 percent higher in the third
quarter of 1998 over the same period in 1997.
During the second quarter of 1998, Vermont Yankee, a nuclear power
plant in which we have a 17.9 percent equity interest and from which we
purchase power, had a scheduled refueling outage. Costs associated with
scheduled outages are amortized over an 18-month refueling cycle. As a
result of this amortization, our power expense from Vermont Yankee
increased 4.2 percent in the third quarter of 1998 over the same period
in 1997.
The cost of power that we purchased from other companies increased
47.9 percent in the third quarter of 1998 over the same period in 1997.
This was primarily due to the following:
In 1997 Hydro-Quebec refunded $8 million of the Company's power
contract costs of which $2.4 million reduced third quarter 1997
expense; in exchange Hydro-Quebec received the rights to
repurchase power under the contract at potentially advantageous
prices in future years;
the purchase of additional power in 1998 to service increased
sales of electricity;
an increase in costs in 1998 associated with our long-term Hydro-
Quebec power contract; and
the cost of power that replaced the less expensive power we had
purchased from Merrimack under a contract that expired in April
1998.
In addition to the above, the increased water runoff as a result of
higher than normal rainfall in 1998 generated more electricity for
independent power producers, whose power we are required to buy under
VPSB regulation at substantially above-market costs.
Power supply expenses--nine months ended September 30, 1998
For the nine months ended September 30, 1998, our power supply
expenses increased 20.6 percent over the same period in 1997, primarily
for the reasons below:
Power that we purchased from others increased 28.5 percent due to
a $5.6 million reduction of Hydro-Quebec power costs recorded in
1997 due to payments received from Hydro-Quebec (see below);
an increase in costs associated with our long-term Hydro-Quebec
power contract;
our own generation increased 53.1 percent due to an increase in
the usage of high-cost generating facilities that replaced power
that we were not able to get from Hydro-Quebec during a severe
ice storm that affected much of Vermont, the Northeast United
States and Quebec in January;
the accrual of losses in 1998 related to our Hydro-Quebec
contract as a result of an order issued by the VPSB in our 1997
rate case;
the purchase of additional power to service increased sales of
electricity; and
the cost of power to replace the discontinued and less expensive
power purchased from Merrimack.
The Company and the other Vermont Joint Owners (VJO) are exploring
whether Hydro-Quebec's inability to delivery power to Vermont during and
after the January ice storm should be considered a default by Hydro-
Quebec under the terms of the power contract, or if there are other
possible claims against Hydro-Quebec. The VJO have asked for
information about Hydro-Quebec's transmission system, which Hydro-Quebec
has refused to provide. Hydro-Quebec has maintained that the "force
majeure" (superior or irreversible force) provision in the contract
applies, which would excuse its non-delivery of power. The VJO
requested an arbitration proceeding to determine whether Hydro-Quebec
has the right to refuse to provide the information about various aspects
of its utility transmission system. At the first meeting with the
arbitrators, Hydro-Quebec challenged whether one arbitrator who had
previously done legal work for the Vermont utilities should be allowed
to serve. The American Arbitration Association decided that two of the
three arbitrators should be disqualified. The VJO have decided to
dismiss this arbitration seeking information, and now have filed an
arbitration complaint that seeks various forms of relief from Hydro-
Quebec for the following reasons:
h The failure to deliver electricity during the ice storm; and
h the inability of Hydro-Quebec's transmission systems and
structures to provide the Vermont utilities with power and
energy on a 100 percent availability basis.
Other operating expenses-three months and nine months ended September
30, 1998
Other operating expenses increased 26.9 percent in the third
quarter of 1998 compared to the same period in 1997 primarily due to
losses associated with the lease for the Company`s corporate headquarter
(See Corporate Headquarter Lease discussed below, in the MDA).
Other operating expenses increased 17.3 percent for the nine months
ended September 30, 1998 over the same period in 1997 primarily due to
losses associated with our corporate headquarters' lease, discussed
above, and higher overhead costs for the Company in 1997. In 1997, our
overhead costs, such as the costs of occupying our buildings and costs
of utilities, were less because we charged certain of these costs to
GMRI in 1997.
Transmission expenses-nine months ended September 30, 1998
Transmission expenses decreased 16.6 percent for the nine months
ended September 30, 1998 compared to the same period in 1997 because of
a refund that we received from Central Vermont Public Service
Corporation (CVPS) in 1998 as a result of reduced levels of demand on
the CVPS transmission system in 1997. Reduced usage also resulted in
lower charges in 1998 for us. We also received a refund in 1998 for
charges that were incorrectly assessed to us during 1997 by New England
Power Company.
Maintenance expenses-three months and nine months ended September 30,
1998
Our maintenance expenses increased 4.9 percent in the third quarter
of 1998 compared to the same period in 1997 and 7.7 percent for the nine
months ended September 30, 1998 compared to the same period in 1997.
The principal reason for this increase is because of scheduled
maintenance activities at Stonybrook, a plant in which we hold an
ownership interest.
Depreciation and amortization expenses-three months and nine months
ended September 30, 1998
Our depreciation and amortization expenses decreased 3.4 percent in
the third quarter of 1998 as compared to the same period in 1997
primarily due to a decrease in the amortization of expenditures related
to the Pine Street Barge Canal site. These amortization charges were
suspended by the VPSB in an Order released March 2, 1998. This decrease
was partially offset by an increase in depreciation expenses associated
with additional investment in our utility plant.
Depreciation and amortization expenses decreased 1.8 percent for
the nine months ended September 30, 1998 compared to the same period in
1997 due to fundamentally the same factors as related above.
Taxes other than income taxes-three months and nine months ended
September 30, 1998
Other taxes decreased 9.5 percent in the third quarter of 1998 over
the same period in 1997 primarily because of a decrease in municipal
property taxes as a result of reappraisals in some municipalities.
A slight decrease in other taxes for the first nine months of 1998
compared to the same period in 1997 occurred for the same reason.
Income taxes-three months and nine months ended September 30, 1998
Income taxes decreased in the third quarter of 1998 compared to the
same period in 1997 and for the nine months ended September 30, 1998
over the same period in 1997 due to a decrease in pretax book income.
Other income-three months ended September 30, 1998
Other income increased 9.8 percent in the third quarter of 1998
over the same period in 1997 for the following reasons:
The sale of a majority interest in GMER in 1997, which had
substantial start-up losses in the third quarter of 1997,
resulted in a $478,000 improvement in third quarter 1998 results.
The absence of the losses experienced by GMPG, whose assets were
sold earlier this year, and which lost approximately $300,000 in
the third quarter of 1997.
These increases were largely offset by a decrease in earnings of
$733,000 for MEI. The decrease was primarily due to the start-up
operating losses incurred by Micronair LLC.
Other income-nine months ended September 30, 1998
Other income decreased significantly for the nine month ended
September 30, 1998 compared to the same period in 1997. This was due to
a $2.3 million decrease in MEI earnings resulting primarily from start-
up losses incurred by Micronair LLC.
The decrease was partially offset by a $1.8 million improvement in
GMRI's earnings due to the absence of start-up expenses in 1998 as
compared to 1997, and the absence of a $187,000 loss experienced by GMPG
whose assets were sold to VGS Propane LLC in March 1998.
Miscellaneous income decreased for the nine months ended September
30, 1998 compared to the same period in 1997 primarily due to the 1998
write-off of $900,000 in costs associated with the wind generating
facility in Searsburg that was disallowed by the VPSB in its June 1998
order.
INTEREST CHARGES
Our interest charges increased 5.5 percent in the third quarter of
1998 over the same period in 1997 primarily due to the following:
An increase in the amount of interest we paid on customer deposits;
and
a reduction in the allowance of funds used during construction since
we had lower construction work in progress balances.
Our interest charges increased 5.5 percent for the nine months
ended September 30, 1998 over the same period in 1997 primarily for the
same reasons stated above, and because of a higher amount of short-term
debt outstanding, which increased the interest charges for the period.
We were able to offset some of the above increases during the third
quarter and the nine month period ended September 30, 1998 by reducing
the amount of outstanding long-term debt, which decreased the long-term
interest charges for both periods.
LIQUIDITY AND CAPITAL RESOURCES
In the nine months ended September 30, 1998, we spent $16.6 million
principally for expansion and improvements of our transmission and
distribution plant, for programs to help our customers conserve
electricity (conservation), for expenditures related to the Pine Street
Barge Canal site, and for computer information systems. We expect to
spend an additional $5.4 million in the fourth quarter of 1998.
We have a revolving credit agreement in the amount of $45 million
with three banks, with borrowings outstanding of $8.5 million on
September 30, 1998.
(It would be helpful to read Notes to Consolidated Financial
Statements, IV "1997 Retail Rate Case" and V. "1998 Retail Rate
Increase" before you read the next few paragraphs.)
The revolving credit agreement requires us to certify on a
quarterly basis that the Company has not suffered a "material adverse
change." Similarly, as a condition to further borrowings, we must
certify that nothing has happened that has had or could reasonably be
expected to have a materially adverse effect on the Company since the
date that we last borrowed under this agreement. When the VPSB issued
its Order dated February 27, 1998 disallowing certain costs associated
with our contract to purchase power from Hydro-Quebec, the three banks
required modification of the terms of the revolving credit agreement,
which had been made originally in August 12, 1997, was unsecured and had
a three-year term. The modified agreement allows us to continue to
borrow until such time that:
A "material adverse effect" has occurred;
we are no longer in compliance with all other provisions of the
agreement, in which case further borrowing will not be permitted;
or
there has been a "material adverse change", in which case the
banks may declare us in default.
The modified terms also call in part for the following:
A reduction in the term of the Agreement from three years to one
year, expiring June 30,1999;
a second priority mortgage, lien and security interest in the
collateral pledged under our first mortgage bond indenture
granted to the banks; and
an increase in the interest rates, facility fees and other fees
required to be paid by the Company under the agreement.
Prior to granting the second priority mortgage, lien and security
interest, we were required to obtain the approval of the VPSB, which we
obtained on June 3, 1998. The restated credit agreement and related
loan documents were effective on August 17, 1998.
There are a number of future events that, singularly or in
combination, could lead the banks to refuse to allow further borrowings
under the existing credit agreement, to seek to enter into a new credit
agreement with the Company and/or to immediately call in all outstanding
loans. Some of those events are:
the VPSB issues an order in January 1999 in our 1998 rate case
that triggers a "material adverse change" for the Company; or
Hydro-Quebec is unwilling to make new arrangements regarding the
cost of our contract with them.
If we are unable to borrow on a short-term basis, we will evaluate
all potential alternatives available to us at the time, including, but
not limited to, the filing of a petition for reorganization under the
United States Bankruptcy Code. .
Due to the negative outcome of the 1997 rate case, which was
decided by the VPSB's orders dated February 27 and June 8, 1998, (See
Note 4 of the Notes to Consolidated Financial Statements), the credit
ratings of the Company's securities by Duff & Phelps and Standard &
Poor's were lowered as follows:
Duff & Phelps Standard & Poor's
From To From To
------------- -----------------
First Mortgage Bonds BBB+ BBB A- BBB
Unsecured medium term BBB BBB- BBB BB+
Preferred stock BBB BB+ BBB BB+
Standard & Poor's also lowered the Company's corporate credit
rating from "BBB+" to "BBB-". Duff & Phelps' and Standard & Poor's
credit ratings for the Company were placed and remain on Rating Watch-
Down and Credit Watch Negative, respectively, due to the high level of
regulatory and public policy uncertainty in Vermont and certain
positions argued by the Vermont Department of Public Service in our
pending rate case.
On November 12, 1998, Moody's lowered our first mortgage bonds
rating from Baa2 to Baa3, and their rating for our preferred stock from
Baa3 to Ba1 due to "a difficult regulatory environment in Vermont and
the resulting high degree of financial uncertainty for GMP".
Concurrently, all of the Company's ratings were placed on review for
possible further downgrade.
Corporate Headquarters Lease
As part of our efforts to reduce operating costs, we have been
evaluating options related to our corporate headquarters' lease, which
runs through June 2009. The options include buying out the lease,
effecting a sale or sublease of the property, or invoking an "economic
disutility" clause in the lease by which we would pay penalties and
vacate corporate headquarters. Currently, 36 percent of the annual
lease payments of approximately $983,000 are not recovered from
ratepayers. We anticipate that our lease contract will result in a loss
of between $1.4 million and $2.5 million pretax. Accordingly, we have
recognized a $1.4 million pretax loss in the third quarter of 1998. We
believe the loss will be sustained regardless of which of the above
lease options is obtained.
Dividend Policy
Our dividend payout policy reflects the greater risks facing the
Company as a result of the changes taking place in the electric utility
industry and Vermont regulatory and legislative uncertainties. The
payout currently assumes that we will receive fair and appropriate
decisions from the VPSB in our current rate case. If the VPSB decides
to disallow certain costs associated with our Hydro-Quebec contract, as
it did in our last rate case, if the resolution of the rate case does
not enable us to achieve sufficient earnings, or if other events beyond
our control cause the Company's financial situation to deteriorate
further, we will have to consider whether the current dividend level is
appropriate or if the dividend should be reduced or eliminated. (See
Note 5 of the Notes to Consolidated Financial Statements).
COMPETITION AND RESTRUCTURING
The electric utility business is experiencing rapid and substantial
changes. These changes are the result of the following trends:
Surplus generating capacity;
Disparity in electric rates among and within various regions of the
country;
Improvements in generation efficiency;
Alternative energy sources;
Increasing demand for customer choice; and
New regulations and legislation intended to foster competition,
also known as "restructuring".
You may want to read "Management's Discussion and Analysis of
Financial Condition and Results of Operations -- Future Outlook" in our
1997 Annual Report on Form 10-K for the year ended December 31, 1997
where we discuss the restructuring proceedings in Vermont.
The 1998 session of the Vermont General Assembly adjourned on April
16, 1998 without enacting any legislation that would allow Vermont
customers to choose their electric supplier.
In the future, the Vermont General Assembly through legislation, or
the VPSB through a subsequent report, action or proceeding, may allow
customers to choose their electric supplier. If this happens without
providing for recovery of a significant portion of the costs associated
with our power supply contracts, the Company's business, including our
operating results, cash flows and ability to pay dividends at the
current levels, would be adversely affected.
In late August, the VPSB hosted an open workshop to examine the
extent to which realistic opportunities exist to increase the value or
lower the costs of Vermont's existing power supply arrangements, and, if
such opportunities exist, to consider the best processes for attracting
the highest value proposals. Topics included:
Vermont's current power supply situation;
Case studies in reforming power supply; and
Opportunities in Vermont to reform the power supply.
In mid-September, the VPSB issued an Order opening an investigation
into the reform of Vermont's electric power supply and ordered all
Vermont electric utilities to participate. That Order also requested
participants to file with the VPSB position papers that address the
scope of the investigation and present substantive proposals for reform.
GMP, together with Central Vermont Public Service Corporation, Citizens
Utilities Company and Associated Industries of Vermont (an industrial
trade association), filed a position paper responding to the Order. We
participated in the VPSB's technical conference in October at which the
scope of the investigation was discussed. We filed our response to that
conference indicating the priorities and action steps we believe should
be taken in order to provide the greatest assistance in the effort to
mitigate Vermont's power supply costs.
YEAR 2000 COMPUTER COMPLIANCE
We use computer software and other related technologies in our
business that could be affected by the date change in the year 2000.
Our primary year 2000 concern is the possibility of interruptions in
delivery of electricity to our customers. We are not able to predict
the impact of any interruption on our operations or earnings, but the
impact could be material.
In the past two years, as part of our usual utility operations, we
have purchased and have nearly completed installing new customer service
and financial management systems that are year 2000 compliant. We have
completed an inventory of our software, hardware, and other equipment
that could contain computer chips, such as meters. Our assessments of
the inventory results are 75 percent complete and we are fixing
identified problems, such as an engineering information system that
processes all field work orders. We expect that all of our financial
and operations systems will be ready for the year 2000 date change by
June 30, 1999. We believe that these new systems and equipment updates,
as well as the work to be completed prior to June 30, 1999, will ensure
that the Company is relatively free of potential year 2000 problems.
Our ability to deliver electricity to our customers could also be
impacted if one of our major power suppliers, such as Hydro-Quebec or
Vermont Yankee, or Vermont Electric Power Company, the company
responsible for transmission in Vermont, experienced a date-related
system failure. An interruption in power supplied by other delivery
systems, such as the independent system operator (ISO) for New England,
could also cause power delivery problems for us. We are participating
in the efforts of the ISO's New England Joint Oversight Committee to
ensure that the systems and delivery of electricity in New England are
in compliance. We have asked these companies to send written reports on
their status in eliminating year 2000 issues that could negatively
affect their ability to serve us. All other major vendors or businesses
that we depend on for services or supplies have also been asked to
report on their status.
We understand that the year 2000 issue is very complex and could
affect our business if a date related system failure occurs, no matter
how conscientious our efforts have been to eliminate all possible year
2000 problems. We have, however, developed a contingency plan that will
provide electricity to our customers on a priority basis in case we have
power outages. This plan also includes the ability to "black start" our
system from several plant sites. A "black start" is necessary when
there is a total power failure and is more complex than bringing an
electrical system back up to full operations after scattered outages.
The State of Vermont has also developed a contingency plan that
addresses electrical emergencies.
The costs of maintaining or modifying our systems are recorded as
operating expenses. The cost of new software will be capitalized and
amortized over the software's useful life. The estimated cost of work
to correct problems that could contribute to a date-related system
failure is approximately $100,000.
The VPSB has opened a docket on the year 2000 issue and has
requested information from the utilities regarding each company's status
in becoming year 2000 compliance. We have provided all information
requested to date to the VPSB.
GREEN MOUNTAIN POWER CORPORATION
September 30, 1998
PART II - OTHER INFORMATION
ITEM 1. Legal Proceedings
See Notes 3, 4 and 5 of Notes to Consolidated Financial
Statements
ITEM 2. Changes in Securities
NONE
ITEM 3. Defaults Upon Senior Securities
NONE
ITEM 4. Submission of Matters to a Vote of Security Holders
NONE.
ITEM 5. Other Information
NONE
ITEM 6. (a) EXHIBITS
27 Financial Data Schedule
4-b-18 Amended and Restated Credit Agreement by and
among Green Mountain Power
The Bank of Nova Scotia, State Street Bank and
Trust Company, Fleet National Bank, and Fleet
National Bank, as Agent, dated as of August
17,1998.
(b) REPORTS ON FORM 8-K
NONE
GREEN MOUNTAIN POWER CORPORATION
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
GREEN MOUNTAIN POWER CORPORATION
(Registrant)
Date: November 13, 1998 /s/ E. M. Norse
E. M. Norse, Vice President, Chief
Financial Officer and Treasurer
Date: November 13, 1998 /s/ R. J. Griffin
R. J. Griffin, Controller
Exhibit 4-b-18
Execution Copy
AMENDED AND RESTATED
CREDIT AGREEMENT
by and among
GREEN MOUNTAIN POWER CORPORATION,
THE BANK OF NOVA SCOTIA,
STATE STREET BANK AND TRUST COMPANY,
FLEET NATIONAL BANK,
and
FLEET NATIONAL BANK,
AS AGENT
$45,000,000
Dated as of August 17, 1998
TABLE OF CONTENTS
Paragraph Heading Page
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions . . . . . . . . . . . . 8
2. AMOUNT AND TERMS OF LOANS . . . . . . . . . . . . . . . . . .9
2.1 Loans . . . . . . . . . . . . . . . . . . . . . . . . 9
2.2 [Reserved] . . . . . . . . . . . . . . . . . . . . . .9
2.3 Procedure for Borrowings . . . . . . . . . . . . . . .9
2.4 Notes . . . . . . . . . . . . . . . . . . . . . . . .11
2.5 Voluntary Reductions of the Aggregate
Commitments; Termination............................ 11
(a) Voluntary Reductions............................11
(b) General.........................................11
2.6 Prepayments and Payment of Loans ................... 12
(a) Voluntary Prepayments...........................12
(b) Mandatory Repayment............................ 12
2.7 Conversion Options . . . . . . . . . . . . . . . . . 12
(a) Conversion of Pro Rata Loans....................12
(b) Continuation of Pro Rata Loans..................12
2.8 Interest Rate and Payment Dates for Loans........... 13
(a) Interest Rates for Loans Prior to Maturity... . 13
(b) Overdue Amounts...... . . . . . . . . . . . . . 13
(c) General.........................................13
2.9 Substituted Interest Rate.......................... 14
2.10 Illegality......................................... 14
2.11 Increased Costs ....................................14
2.12 Indemnity...........................................15
2.13 Use of Proceeds.....................................16
2.14 Capital Adequacy.................................. .16
2.15 Extension of Termination Date ..... . . . . . . . . 16
2.16 Notice of Costs; Substitution of Banks .............17
3. FEES; PAYMENTS . . . . . . . . . . . . . . . . . . . . . . 18
3.1 Facility Fee............................. . . . . . .18
3.2 Fees of the Agent ...................................18
3.3 Computation of Interest and Fees ....................18
3.4 Pro Rata Treatment and Application
of Principal Payments . . . . . . . . . . . . . . . .18
3.5 Modification Fee... . . . . . . . . . . . . . . . . .19
4. REPRESENTATIONS AND WARRANTIES.............................19
4.1 Subsidiary .................................. . . . . 19
4.2 Corporate Existence and Power..... . . . . . . . . . 19
4.3 Corporate Authority............................. . . 19
4.4 Binding Agreement............................... . . 19
4.5 Litigation..................................... . . . 20
4.6 No Conflicting Agreements....................... . . 20
4.7 Taxes ......................................... . . . 20
4.8 Financial Statements.......................... . . . 20
4.9 Compliance with Applicable Laws................. . . 21
4.10 Governmental Regulations...................... . . . 21
4.11 Property........................................ . . 21
4.12 Federal Reserve Regulations.................... . . .21
4.13 No Misrepresentation . . . . . . . . . . . . . . . . 21
4.14 Pension Plans................................... . . 22
4.15 Public Utility Holding Company Act............. . . .22
4.16 Approvals..................................... . . . 22
4.17 Regulatory Investigations............................22
4.18 No Adverse Change or Event...........................22
4.19 Year 2000 Problem............................... . . 22
5. CONDITIONS OF BORROWING - - FIRST BORROWING ................23
5.1 Evidence of Corporate Action................... . . . 23
5.2 Notes ......................................... . . . 23
5.3 Mortgage................... . . . . . . . . . . . . .23
5.4 Opinion of Counsel to the Company .............. . . .23
5.5 Fees ........................................... . . .23
5.6 VPSB Approval .................................. . . .23
6. CONDITIONS OF BORROWING - - ALL BORROWINGS .................24
6.1 Compliance..................................... . . . 24
6.2 Loan Closings ................................. . . . 24
6.3 Approval of Counsel .......................... . . . .24
6.4 Borrowing Request............................... . . .24
6.5 Other Documents ................................ . . .24
7. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . .24
7.1 Corporate Existence ..................................24
7.2 Taxes ................................................24
7.3 Insurance.............................................25
7.4 Payment of Indebtedness and Performance of Obligations25
7.5 Observance of Legal Requirements; ERISA ..............25
7.6 Financial Statements and Other Information............25
7.7 Inspection............................................27
7.8 Year 2000 Compliance..................................27
7.7 Property Searches.....................................27
8. NEGATIVE COVENANTS ................................. . . . .27
8.1 Funded Debt...........................................27
8.2 Liens ................................................28
8.3 Mergers and Consolidations ...........................28
8.4 Sale of Property......................................28
8.5 Dividends; Distributions..............................28
8.6 Guaranties................................. . . . . . 29
8.7 Amendment of Charter or By-Laws.......................29
8.8 Funded Debt to Capitalization Test....................29
8.9 First Mortgage Bonds.. . . . . . . . . . . . . . . . .29
9. EVENTS OF DEFAULT................................... . . . .29
10. THE AGENT ........................................... . . . 32
10.1 Appointment. . . . . . . . . . . . . . . . . . . . . 32
10.2 Delegation of Duties, Etc....................... . . 32
10.3 Indemnification................................. . . 32
10.4 Exculpatory Provisions......................... . . .32
10.5 Agent in its Individual Capacity................ . . 33
10.6 Knowledge of Default......................... . . .. 33
10.7 Resignation of Agent ......................... . . . 33
10.8 Requests to the Agent .......................... . ..34
11. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . 34
11.1 Manner of Delivery ............................. . . 34
11.2 Distribution of Copies........................ . . . 36
11.3 Notices by the Agent or a Bank................... . .36
12. RIGHT OF SET-OFF ................................... . .. . 36
13. AMENDMENTS, WAIVERS, AND CONSENTS.................... . . . 37
14. OTHER PROVISIONS..................................... . . . 37
14.1 No Waiver of Rights by the Banks ............. . . . 37
14.2 Headings, Plurals .............................. . . 37
14.3 Counterparts.................................... . . 37
14.4 Severability................................... . . .38
14.5 Integration..................................... . . 38
14.6 Sales and Participations in Loans and Notes; Successors
and Assigns;Survival of Representations
and Warranties . . . . . . . . . . . . . . . . . . . 38
14.7 Applicable Law.............................. . . . . 39
14.8 Interest........................................ . . 39
14.9 Accounting Terms and Principles................ . . .39
14.10 Waiver of Trial by Jury........................ . . .40
14.11 Consent to Jurisdiction........................ . . .40
14.12 Service of Process ............................ . . .40
14.13 No Limitation on Service or Suit .............. . .. 40
15. OTHER OBLIGATIONS OF THE COMPANY .................... . . . 41
15.1 Taxes and Fees ................................ . . .41
15.2 Expenses........................................ . . 41
16. EFFECTIVE DATE....................................... . . . 41
EXHIBITS
EXHIBIT A Commitments
EXHIBIT B Applicable Margins/Percentages for Facility Fee
EXHIBIT C Form of Borrowing Request
EXHIBIT D Form of Notes
EXHIBIT E Form of Commitment Extension Request
EXHIBIT F List of Subsidiaries
EXHIBIT G Form of Opinion of Counsel to the Company
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August 17,
1998, among GREEN MOUNTAIN POWER CORPORATION, a Vermont corporation (the
"Company"), the Signatory Banks hereto (each, a "Bank" and,
collectively, the "Banks"), and FLEET NATIONAL BANK, as agent hereunder
(in such capacity, the "Agent") amends and restates in its entirety the
Credit Agreement dated of August 12, 1997 (the "Credit Agreement").
The Company has requested that the Banks agree to certain
amendments to the Credit Agreement and, subject to the terms and
provisions hereof, the Banks are willing to so amend the Credit
Agreement and to restate the Credit Agreement in its entirety, as
follows:
1. DEFINITIONS.
1.1 Defined Terms. As used in this Agreement, terms defined in
the paragraph above have the meanings therein indicated, and the
following terms have the following meanings:
"Accountants": Arthur Andersen LLP, or such other firm of
certified public accountants of recognized national standing selected by
the Company.
"Affected Loan": as defined in paragraph 2.9.
"Affected Principal Amount": (i) in the event that the Company
shall fail for any reason to borrow a Loan constituting a Eurodollar
Rate Loan after it shall have delivered a Borrowing Request to the
Agent, an amount equal to the principal amount of such Eurodollar Rate
Loan; (ii) in the event that the right of the Company to have a
Eurodollar Rate Loan outstanding hereunder shall be suspended or shall
terminate for any reason prior to the last day of the Interest Period
applicable thereto, an amount equal to the principal amount of such
Eurodollar Rate Loan; and (iii) in the event that the Company shall
prepay or repay all or any part of the principal amount of a Eurodollar
Rate Loan prior to the last day of the Interest Period applicable
thereto, an amount equal to the principal amount so prepaid or repaid.
"Affiliate": a Person that directly or indirectly, or through one
or more intermediaries, controls or is controlled by or is under common
control with another Person. The term "control" means possession,
directly or indirectly, of the power to direct or cause the direction of
the management and policies of a Person, whether through the ownership
of voting securities, by contract or otherwise.
"Agent's Fees": as defined in paragraph 3.2.
"Aggregate Commitments": the sum of the Commitments set forth in
Exhibit A as the same may be reduced pursuant to paragraph 2.5.
"Agreement": this Amended and Restated Credit Agreement, as same
may be amended, supplemented or otherwise modified from time to time.
"Alternate Base Rate": the higher of (a) the annual rate of
interest publicly announced from time to time by the Agent at the
Agent's head office as its "base rate" and (b) one-half of one percent
(1/2%) above the Federal Funds Effective Rate.
"Alternate Base Rate Loans": Loans (or any portion thereof) at
such time as they (or such portions) are made or are being maintained at
a rate of interest based upon the Alternate Base Rate.
"Applicable Lending Office": as to any Bank, such Bank's Domestic
Lending Office or Eurodollar Lending Office, as the case may be.
"Applicable Margin": the additional rate per annum to be added to
the interest rate at which each Loan is made determined by reference to
Exhibit B hereto based upon the Debt Rating of the Company.
"Authorized Signatory": the president, any vice president, the
treasurer, the secretary, or any other duly authorized officer of the
Company acceptable to Agent.
"Bank" or "Banks": the signatory Banks to this Credit Agreement
and any other bank or lender that becomes a signatory hereto pursuant to
paragraph 14.6.
"Borrowing": a Borrowing of additional principal amounts pursuant
to paragraph 2.3 consisting of simultaneous Loans of the same Type made
by each Bank.
"Borrowing Request": as defined in paragraph 2.3.
"Borrowing Date": any date specified in a Borrowing Request
delivered pursuant to paragraph 2.1 as a date on which the Company
requests the Banks to make Loans hereunder.
"Business Day": for all purposes other than as set forth in clause
(ii) below, (i) any day other than a Saturday, Sunday or other day on
which commercial banks located in New York City or Boston are authorized
or required by law or other governmental actions to close and (ii) with
respect to all notices and determinations in connection with, and
payments of principal and interest on Eurodollar Loans, any day which is
a Business Day described in clause (i) above and which is also a day on
which dealings in foreign currency and exchange and Eurodollar funding
between banks may be carried on in London, New York City and Boston.
"Code": the Internal Revenue Code of 1986, as the same may be
amended from time to time, or any successor thereto, and the rules and
regulations issued hereunder, as from time to time in effect.
"Commitment": in respect of any Bank, such Bank's undertaking to
make Loans to the Company, subject to the terms and conditions hereof,
in an aggregate outstanding principal amount equal to but not exceeding
the amount set forth next to the name of such Bank on Exhibit A under
the heading "Total Commitment", as the same may be reduced pursuant to
paragraph 2.5.
"Commitment Extension Request": a request duly executed by an
Authorized Signatory substantially in the form of Exhibit E.
"Commitment Percentage": as to any Bank, the percentage set forth
opposite the name of such Bank on Exhibit A under the heading
"Commitment Percentage".
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within the
meaning of Section 414(b) or 414(c) of the Code.
"Consolidated": the Company and its Subsidiaries taken as a whole.
"Conversion Date": the date on which a Loan of one Type is
converted to a Loan of another Type or continued as a Loan of the same
Type.
"Debt Rating": the public debt rating of the Company's senior
secured indebtedness according to Standard & Poor's Corporation or
Moody's Investor Service; in the event that neither Standard & Poor's
Corporation or Moody's Investor Service have a public debt rating for
the Company, the Company shall be deemed to have no Debt Rating.
"Designated Documents": the Company's 1997 Form 10-K, the
Company's quarterly report on Form 10-Q for the fiscal quarter ended
March 31, 1998 and the Disclosure Schedule.
"Disclosure Schedule": the Disclosure Schedule attached hereto as
Schedule A.
"Dollars" and "$": dollars in lawful currency of the United States
of America.
"Domestic Lending Office": as to any Bank, initially the office of
such Bank designated as such on the signature page hereof, and
thereafter such other office in the United States as reported by such
Bank to the Agent, that shall be making or maintaining Alternate Base
Rate Loans.
"Effective Date": as defined in paragraph 16.
"Environmental Law": Any and all federal, state, local and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements
or other governmental restrictions relating to the environment (but not
including zoning and similar land use laws and regulations which have no
Material Adverse Effect on the Company) or to emissions, discharges,
releases or threatened releases of pollutants, contaminants, chemicals,
or industrial, toxic or hazardous substances or wastes into the
environment, including, without limitation, ambient air, surface water,
ground water or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of pollutants, contaminants, chemicals or industrial, toxic
or hazardous substances or wastes.
"Environmental Notice": any summons, citation, directive,
information request, notice of potential responsibility, notice of
violation or deficiency, order, claim, complaint, investigation,
proceeding, judgment, letter or other communication, written or oral,
actual or threatened, from the United States Environmental Protection
Agency or other federal, state or local agency or authority, or any
other entity or individual, public or private, concerning any
intentional or unintentional act or omission which involves management
of hazardous substances or wastes on or off any property owned or leased
by the Company or any Subsidiary or Affiliate of the Company; the
imposition of any Lien on such property; and any alleged violation of or
responsibility under Environmental Laws.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations issued
hereunder, as from time to time in effect.
"Eurodollar Lending Office": as to any Bank, initially the office
of such Bank designated as such on the signature page hereof, and
thereafter such other office as reported by such Bank to the Agent, that
shall be making or maintaining Eurodollar Rate Loans.
"Eurodollar Rate": with respect to any Interest Period applicable
to any Eurodollar Rate Loan, the rate per annum determined by dividing
(i) the rate per annum (rounded to the next highest 1/100 of 1%) at
which Dollar deposits are offered by major banks to major banks in
immediately available funds in the London interbank eurodollar market as
determined by the Agent at or about 11:00 a.m. (London time) for
delivery on the day that is two (2) Business Days prior to the first day
of such Interest Period, in an amount comparable to the amount of the
Eurodollar Rate Loan of FNB to which such Interest Period shall apply
and for a period equal to such Interest Period, by (ii) one minus the
aggregate of the maximum rates (expressed as a decimal) of reserves
(including, without limitation, basic, supplemental, marginal and
emergency reserves) for "Eurocurrency liabilities" of member banks of
the Federal Reserve System as prescribed under Regulation D of the Board
of Governors of the Federal Reserve System. The Eurodollar Rate shall
be adjusted automatically on and as of the effective date of any change
in such reserve rate for Eurocurrency liabilities. Each determination
by the Agent of the Eurodollar Rate shall be presumed to be correct in
the absence of manifest error. All interest based on the Eurodollar
Rate shall be calculated on the basis of a 360-day year for the actual
number of days elapsed.
"Eurodollar Rate Loans": Loans (or any portions thereof) at such
time as they (or such portions) are made or being maintained at a rate
of interest based upon the Eurodollar Rate.
"Event of Default": any of the events specified in paragraph 9,
provided that any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.
"Federal Funds Effective Rate": the weighted average of the rates
on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers on such day, as
published for the prior day by the Federal Reserve Bank of Boston.
"First Mortgage Bonds": the Company's First Mortgage Bonds as set
forth in the Company's 1997 Form 10-K filed on March 27, 1998 with the
Securities and Exchange Commission.
"FNB": Fleet National Bank, a national banking association.
"Facility Fee": as defined in paragraph 3.1.
"Financial Statements": as defined in paragraph 4.8.
"Funded Debt": all obligations of the Company evidenced by bonds
(including, without limitation, the First Mortgage Bonds), debentures,
notes or other similar instruments (including, without limitation,
preferred stock not issued and outstanding as of the date hereof that
has maturities within the term of this Agreement) and all other
evidences of indebtedness of the Company (including, without limitation,
Short-Term Funded Debt), and any other instrument or arrangement which
would be treated as indebtedness under GAAP, including, without
limitation, capitalized leases but excluding trade obligations and
normal accruals, including accounts payable, in the ordinary course of
business not yet due and payable, or with respect to which the Company
is contesting in good faith the amount or validity thereof by
appropriate proceedings and then only to the extent that the Company has
set aside on its books adequate reserves therefor in accordance with
GAAP and such contest does not have a Material Adverse Effect).
"GAAP": generally accepted accounting principles from time to time
followed by companies engaged in a business similar to that of the
Company, except as otherwise required by any applicable rules,
regulations or orders of the VPSB, or other public regulatory authority
having jurisdiction over the accounts of the Company; provided that the
Company may at any time contest or controvert in good faith the validity
or applicability to the Company of any such rule, regulation or order;
and provided, further, that the federal income tax liability of the
Company may be computed as if the Company were filing separate returns
notwithstanding the fact that it may file consolidated returns as part
of an affiliated group.
"Governmental Body": any nation or government, any state or other
political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions, of, or
pertaining to, government, and any court or arbitrator.
"Interest Payment Date": (a) as to any Alternate Base Rate Loan,
the last day of each March, June, September and December commencing on
the first such day to occur after such Loan is made or any Eurodollar
Rate Loan is converted to an Alternate Base Rate Loan, and the date each
Alternate Base Rate Loan is paid in full, (b) as to any Eurodollar Rate
Loan in respect of which the Company has selected an Interest Period of
one, two or three months, the last day of such Interest Period, and (c)
as to any Eurodollar Rate Loan having an Interest Period of six months,
the last day and, in addition, the numerically corresponding day (or, if
there is no numerically corresponding day, the last day) in the calendar
month that is three months after the first day, of such Interest Period.
"Interest Period":
(a) with respect to any Eurodollar Rate Loan comprising the same
Borrowing:
(i) initially, the period commencing on, as the case may be,
the Borrowing Date or a Conversion Date with respect to such
Eurodollar Rate Loan, and ending one, two, three or six months
thereafter, as selected by the Company in its irrevocable Borrowing
Request as provided in paragraph 2.3 or its irrevocable notice of
conversion as provided in paragraph 2.7; and
(ii) thereafter, each period commencing on, as the case may
be, the Borrowing Date or a Conversion Date with respect to such
Eurodollar Rate Loan and ending one, two, three or six months
thereafter, as selected by the Company in its irrevocable notice of
conversion as provided in paragraph 2.7; and
(b) [Reserved]
(c) all of the foregoing provisions relating to Interest Periods
set forth in paragraphs (a) and (b) above are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar Rate
Loan comprising the same Borrowing would otherwise end on a day
which is not a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end on
the immediately preceding Business Day;
(ii) if, with respect to the conversion of any Loan, the
Company shall fail to give due notice as provided in paragraph 2.7
for such Loan, such Loan shall be automatically converted to an
Alternate Base Rate Loan upon the expiration of the Interest Period
with respect thereto;
(iii) any Interest Period pertaining to a Eurodollar Rate
Loan that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the
last Business Day of a calendar month;
(iv) the Company shall select Interest Periods relating to
Eurodollar Rate Loans so as not to have more than twelve different
Interest Periods relating to Eurodollar Rate Loans outstanding at
any one time; and
(v) the Company shall select Interest Periods pertaining to
Eurodollar Rate Loans such that, on the date the mandatory
repayment is required to be made under paragraph 2.6(b), the
outstanding principal amount of all Alternate Base Rate Loans and
Eurodollar Rate Loans with Interest Periods ending on the date of
such payment shall equal the aggregate principal amount of the
Loans required to be repaid on such date.
"Lien: any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or security interest of any kind or
nature whatsoever (including, without limitation, any conditional sale
or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the
filing of any financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction).
"Loan Documents": collectively, this Agreement, the Notes, the
Mortgage and any document and instrument executed and/or delivered in
connection herewith or therewith.
"Loans": Loans made pursuant to paragraph 2.1.
"Majority Banks": at any time when no Loans are outstanding, Banks
having at least 66 2/3% of the Aggregate Commitments; at any time when
Loans are outstanding, Banks holding at least 66 2/3% of the outstanding
Loans.
"Material Adverse Change": a material adverse change in the
business, assets, liabilities, condition (financial or otherwise),
results of operations or business prospects of (a) the Company or (b)
the Company and its Subsidiaries "taken as a whole" which would
reasonably be expected to render the Company unable to perform its
obligations under the Loan Documents. The term "Material Adverse
Change" shall include, without limitation, any change in any law,
regulation, treaty or directive or in the interpretation or application
thereof by any Governmental Body, including without limitation, the
VPSB, charged with the administration thereof or compliance by the
Company with any request or directive from any Governmental Body,
including without limitation, the VPSB, the result of which would have a
Material Adverse Effect. The term "Material Adverse Change" shall also
include, without limitation, the failure of the Company to be year 2000
compliant in all material respects by December 31, 1999.
"Material Adverse Effect": (a) with respect to any Person
(including, without limitation, the Company), any materially adverse
effect on such Person's business, assets, liabilities, condition
(financial or otherwise), results of operations or business prospects,
(b) with respect to a group of Persons "taken as a whole" (including,
without limitation, the Company and its Subsidiaries), any materially
adverse effect on such Persons' business, assets, liabilities, financial
conditions, results of operations or business prospects taken as a whole
on, where appropriate, a consolidated basis in accordance with GAAP and
(c) with respect to any Loan Document, any adverse effect, WHETHER OR
NOT MATERIAL, on the binding nature, validity or enforceability thereof
as an obligation of the Company.
"Mortgage": the Mortgage and Security Agreement dated as of the
date hereof from the Company to the Agent, for the account of the Banks,
together with any and all supplements and amendments thereto.
"Mortgaged Property": the Property subject to the Mortgage.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001 (a)(3) of ERISA.
"Non-Consenting Bank": as defined in paragraph 2.15.
"Notes": as defined in paragraph 2.4.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental Body
succeeding to the functions thereof.
"Person": an individual, partnership, corporation, limited
liability company, limited liability partnership, business trust, joint
stock company, trust, unincorporated association, joint venture,
Governmental Body or any other entity of whatever nature.
"Plan": any pension plan which is covered by Title IV of ERISA and
in respect of which the Company or a Commonly Controlled Entity is an
"employer" as defined in Section 3(5) of ERISA.
"Pro Rata Loans": Loans (or any portion thereof) at such time as
they (or such portions) are made or are being maintained pursuant to
paragraph 2.3.
"Property": all types of real, personal, tangible, intangible or
mixed property.
"Regulation D": Regulation D of the Board of Governors of the
Federal Reserve System, as amended from time to time.
"Replacement Bank": as defined in paragraph 2.15.
"Reportable Event": any event described in Section 4043(b) of
ERISA, other than an event with respect to which the 30-day notice
requirement has been waived.
"Short-Term Funded Debt": debt with initial maturities of less
than one (1) year.
"Special Counsel": Gadsby & Hannah LLP, or such other firm
selected by the Agent.
"Subsidiary": any corporation a majority of the voting shares of
which are at the time owned by the Company or by other subsidiaries of
the Company or by the Company and other subsidiaries of the Company.
"Taxes": any present or future income, stamp or other taxes,
levies, imposts, duties, fees, assessments, deductions, withholdings, or
other like charges, now or hereafter imposed, levied, collected,
withheld, or assessed by any Governmental Body.
"Total Capitalization": the sum of (a) all outstanding capital
stock of the Company plus (b) Funded Debt.
"Termination Date": June 30 1999 or any date subsequent thereto
resulting from an extension of the Termination Date pursuant to
paragraph 2.15.
"Type": Loans made hereunder as Alternate Base Rate Loans or
Eurodollar Rate Loans, as the case may be.
"Usage Fee": the fee charged to the Company by the Banks on the
outstanding principal balance of all Loans in excess of $22,500,000 in
accordance with, and as set forth in, Exhibit B hereto.
"VPSB": the Vermont Public Service Board.
"VPSB Order": the order of the VPSB dated February 27, 1998,
Docket No. 5983.
1.2 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the meanings
given such terms herein when used in any certificate, opinion or other
document made or delivered pursuant hereto or thereto, unless otherwise
defined therein. All terms defined in this Agreement and not defined in
paragraph 1.1 shall have the respective meanings given them in the text
of this Agreement.
(b) As used herein and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms relating to
the Company not defined in paragraph 1.1, and accounting terms partly
defined in paragraph 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein", "hereto" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and paragraph, schedule and exhibit references contained
herein shall refer to paragraphs hereof or schedules or exhibits hereto
unless otherwise expressly provided herein. The word "or" shall not be
exclusive.
2. AMOUNT AND TERMS OF LOANS.
2.1 Loans.
(a) Generally. Subject to the terms and conditions of this
Agreement, each Bank severally agrees to make Loans to the Company from
time to time on and after the Effective Date to, but excluding, the
Termination Date, provided that the aggregate unpaid principal amount of
all Loans due to each Bank at any one time shall not exceed an amount
equal to such Bank's Commitment, and provided further that the aggregate
unpaid principal amount of the Loans at any one time outstanding shall
not exceed the lesser of (i) the Aggregate Commitments and (ii) the
aggregate outstanding principal balance of all Loans permitted to be
outstanding hereunder after giving effect to the mandatory repayments
required to be made under paragraph 2.6(b). During the period from the
Effective Date to the Termination Date, the Company may borrow, repay
and reborrow hereunder, and may convert all or any part of the Loans
from one Type to another Type or continue all or any part of the Loans
as the same Type in accordance with and subject to the terms and
provisions hereof. In the event the Company elects to extend the
scheduled maturity of the Loans in accordance with paragraph 2.15
hereof, during the period from and after the Termination Date to the
extended Termination Date, the Company may prepay the Loans and may
convert all or any part of the Loans from one Type to Loans of another
Type or continue all or any part of the Loans as the same Type, all in
accordance with and subject to the terms and provisions hereof.
(b) Pro Rata Loans. Upon the terms and subject to the conditions
of this Agreement, each Bank agrees to make, from time to time during
the period from the Effective Date through the Termination Date, Pro
Rata Loans to the Company. The aggregate unpaid principal amount of all
Pro Rata Loans made by each Bank shall not exceed at any one time an
amount equal to such Bank's Commitment, and the aggregate unpaid
principal amount of the Loans at any one time outstanding shall not
exceed the lesser of (i) the Aggregate Commitments and (ii) the
aggregate outstanding principal balance of all Loans permitted to be
outstanding hereunder after giving effect to the mandatory repayments
required to be made under paragraph 2.6(b). Subject to the terms and
conditions of this Agreement, the Pro Rata Loans may, at the option of
the Company, be made as, and from time to time continued as or converted
into, Alternate Base Rate or Eurodollar Rate Loans of any permitted
Type, or any combination thereof.
2.2 [Reserved].
2.3 Procedure for Borrowings.
With respect to Pro Rata Loans, the Company may effect a
Borrowing on any Business Day occurring on or after the Effective Date
by giving the Agent an irrevocable telephonic (to be promptly confirmed
in writing) or written notice of borrowing (each, a "Borrowing Request"
in the form of Exhibit C) (which Borrowing Request must be received by
the Agent (a) prior to 10:00 a.m., Boston time, two Business Days prior
to the requested Borrowing Date, if the Company is requesting that
Eurodollar Rate Loans be made as part of such Borrowing, and (b) prior
to 10:00 a.m., Boston time, one Business Day prior to the requested
Borrowing Date, if the Company is requesting that Alternate Base Rate
Loans be made as part of such Borrowing), specifying (i) the amount to
be borrowed, (ii) the requested Borrowing Date, (iii) whether such
Borrowing is to consist of Eurodollar Rate Loans, Alternate Base Rate
Loans or a combination thereof, and (iv) if the Loans are to be
Eurodollar Rate Loans, the length of the initial Interest Period for
each thereof. Each Borrowing shall be in an aggregate principal amount
equal to or greater than $500,000 or, if less, the undrawn balance of
the Commitments. The principal amount of each Bank's Loan made on a
Borrowing Date shall be in an amount equal to such Bank's Commitment
Percentage, of the Loans made on such Borrowing Date. Subject to the
provisions of paragraphs 2.8 and 2.9, Loans may be Alternate Base Rate
Loans or Eurodollar Rate Loans, or any combination thereof. Upon
receipt of each Borrowing Request from the Company, the Agent shall
promptly notify each Bank thereof (such notice to be promptly confirmed
in writing). Each Bank will make the amount of its Commitment
Percentage of each Borrowing available to the Agent for the account of
the Company at the office of the Agent set forth in paragraph 11.1, in
the case of Eurodollar Rate Loans, not later than 12:00 noon, Boston
time, and in the case of Alternate Base Rate Loans, not later than 11:00
a.m., Boston time, on the Borrowing Date requested by the Company, in
funds immediately available to the Agent at such office. Amounts so
made available to the Agent on a Borrowing Date will, subject to the
satisfaction of the terms and conditions of this Agreement as determined
by the Agent, be made immediately available on such date to the Company
by the Agent at the office of the Agent specified in paragraph 11.1 by
crediting the account of the Company on the books of such office with
the aggregate of said amounts, in like funds as received by the Agent.
Unless the Agent shall have received prior notice from a Bank (by
telephone or otherwise, such notice to be promptly confirmed by telex,
telecopy or other writing) that such Bank will not make available to the
Agent such Bank's pro rata share of the Loans requested by the Company,
the Agent may assume that such Bank has made such share available to the
Agent on such Borrowing Date in accordance with this paragraph, provided
that such Bank received notice of the proposed borrowing from the Agent,
and the Agent may, in reliance upon such assumption, make available to
the Company on such Borrowing Date a corresponding amount. If and to
the extent such Bank shall not have so made such pro rata share
available to the Agent on such Borrowing Date, such Bank shall pay to
the Agent on demand an amount equal to the product of (i) the average
computed for the period referred to in clause (iii) below, of the
weighted average interest rate paid by the Agent for federal funds
acquired by the Agent during each day included in such period, times
(ii) the amount of such Bank's Commitment Percentage of such Loans,
times (iii) a fraction, the numerator of which is the number of days
that elapse from and including such Borrowing Date to the date on which
the amount of such Bank's Commitment Percentage of such Loans shall
become immediately available to the Agent, and the denominator of which
is 365. If such Bank shall pay to the Agent such amount, such amount so
paid shall constitute such Bank's Loan as part of such Loans for
purposes of this Agreement, which Loan shall be deemed to have been made
by such Bank on the date such amount is so paid, but without prejudice
to the Company's rights against such Bank. If and to the extent such
Bank shall not have so made such pro rata share available to the Agent
within three (3) days following such Borrowing Date, the Company shall
pay to the Agent forthwith on demand (but without duplication) an amount
equal to such Bank's Commitment Percentage of such Loans, together with
interest thereon for each day from the date such amount is made
available to the Company until the date such amount is paid to the
Agent, at the applicable interest rate for such Loans as set forth in
paragraph 2.8. Such payment by the Company, however, shall be without
prejudice to its rights against such Bank.
2.4 Notes. Loans made by each Bank with respect to Alternate
Base Rate Loans and Eurodollar Rate Loans shall be evidenced by a
promissory note of the Company, substantially in the form of Exhibit D,
all with appropriate insertions therein (as endorsed and as amended or
otherwise modified from time to time, a "Note" and, collectively, the
"Notes"), payable to the order of such Bank and representing the
obligation of the Company to pay the aggregate unpaid principal amount
of all Loans made by such Bank, with interest thereon as prescribed or
determined herein. Each Bank is hereby authorized to record the date
and amount of each Loan made by such Bank and the other information
applicable thereto, and each payment or prepayment of principal of, such
Loan, on the applicable grid (and any continuations thereof) annexed to
and constituting a part of its Note. No failure to so record or any
error in so recording shall affect the obligation of the Company to
repay such Loans, with interest thereon, as herein provided. Each Note
shall (a) be dated the date the initial Loans are made, (b) be stated to
mature on the Termination Date and (c) bear interest for the period from
and including the date thereof on the unpaid principal amount thereof
from time to time outstanding at the applicable interest rate per annum
determined as provided herein.
2.5 Voluntary Reductions of the Aggregate Commitments;
Termination.
(a) Voluntary Reductions. During the period from the Effective
Date to the Termination Date the Company shall have the right, upon at
least two Business Days' prior written notice to the Agent, to reduce
permanently the Aggregate Commitments in whole at any time, or in part
from time to time, without premium or penalty, provided that (i) each
partial reduction of such Aggregate Commitments shall be in an amount
equal to at least $500,000 or such amount plus a whole multiple of
$500,000, and (ii) such Aggregate Commitments shall not be reduced to an
amount less than the aggregate principal balance of the Loans
outstanding on the date of such reduction (after giving effect to
reductions in such balance made on such date). Upon such Aggregate
Commitments being permanently reduced to zero prior to such Termination
Date and upon payment in full of such Loans and all other sums due
hereunder and under such Notes, this Agreement shall be deemed
terminated with respect to the Loans except to the extent that any
provisions hereof expressly survive such payment.
(b) General. Reductions of the Aggregate Commitments under
clause (a) above shall reduce each Bank's Commitment pro rata according
to the Commitment Percentage of such Bank. The Agent shall promptly
notify each Bank of each reduction in the Aggregate Commitments under
clause (a) above upon its receipt of notice thereof, and remit to each
Bank its pro rata share of any accompanying prepayments of the Loans
according to the outstanding principal balance of the Loans.
Simultaneously with each reduction of the Aggregate Commitments under
this paragraph 2.5, the Company shall prepay the Loans in the amount, if
any, by which the aggregate unpaid principal balance of the Loans
exceeds the amount of the Aggregate Commitments as so reduced.
If any prepayment is made under this paragraph 2.5 with respect to
any Eurodollar Rate Loans, in whole or in part, prior to the last day of
the applicable Interest Period with respect thereto, the Company agrees
that it shall indemnify the Banks in accordance with paragraph 2.12.
After giving effect to any prepayment with respect to Eurodollar Rate
Loans, no Eurodollar Rate Loans made (whether as a result of Borrowing
or a conversion) on the same date and having the same Interest Period
shall be outstanding in an aggregate principal amount of less than
$500,000.
2.6 Prepayments and Payment of Loans.
(a) Voluntary Prepayments. The Company may, at its option, prepay
Alternate Base Rate Loans or Eurodollar Rate Loans in whole or in part,
without premium or penalty, subject to its obligation to indemnify
provided in paragraph 2.12 (in the case of Eurodollar Rate Loans), at
any time and from time to time upon at least one Business Day's prior
irrevocable written notice to the Agent, specifying the amount to be
prepaid, and the date and amount of prepayment. Upon receipt of such
notice, the Agent shall promptly notify each Bank thereof. Any such
notice shall be irrevocable and the amount specified in such notice
shall be due and payable on the date specified therein, together with
accrued interest to the date of such payment on the amount being
prepaid. Prepayments shall be in an aggregate principal amount of at
least $500,000 or, if less, the outstanding principal balance of the
applicable Notes, provided, however, that after giving effect to any
such prepayment, no Eurodollar Rate Loans made (whether as the result of
Borrowing or a conversion) on the same date and having the same Interest
Period shall be outstanding in an aggregate principal amount of less
than $500,000.
(b) Mandatory Repayment. On the Termination Date, as may be
extended in accordance with the terms of paragraph 2.15 hereof, the
Company shall repay in full the aggregate principal balance of all Loans
outstanding on such date, together with accrued interest on such amount
to such date and any Facility Fees, Agent's Fees or other amounts owing
hereunder or under the Notes.
2.7 Conversion Options.
(a) Conversion of Pro Rata Loans. The Company may elect from
time to time to convert Eurodollar Rate Loans to Alternate Base Rate
Loans by giving the Agent at least one Business Day's prior notice of
such election (in substantially the form of Borrowing Request attached
hereto as Exhibit C), specifying the amount to be so converted,
provided, that any such conversion of Eurodollar Rate Loans shall only
be made on the last day of the Interest Period applicable thereto. In
addition, in the absence of an Event of Default, the Company may elect
from time to time to convert Alternate Base Rate Loans to Eurodollar
Rate Loans, by giving the Agent at least two Business Day's prior
irrevocable notice of such election, specifying the amount to be so
converted and the Interest Period selected, provided that any such
conversion of Alternate Base Rate Loans to Eurodollar Rate Loans shall
only be made on a Business Day. The Agent shall promptly provide the
Banks with notice of any such election. Loans may be converted pursuant
to this paragraph 2.7, in whole or in part, provided that conversions of
Alternate Base Rate Loans to Eurodollar Rate Loans or Eurodollar Rate
Loans to Alternate Base Rate Loans shall be in an aggregate principal
amount of at least $500,000. After giving effect to any such
conversion, no Eurodollar Rate Loans made (whether as the result of a
borrowing or a conversion) on the same date and having the same Interest
Period shall be outstanding in an aggregate principal amount of less
than $500,000. A conversion of a Loan in accordance with this paragraph
2.7 shall not require the Company to comply with the conditions to
Borrowing set forth in paragraph 6.
(b) Continuation of Pro Rata Loans. Any Eurodollar Rate Loans
may be continued as such upon the expiration of any Interest Period with
respect thereto by the Company's giving irrevocable written notice (in
substantially the form of Borrowing Request attached hereto as
Exhibit C) to the Agent of its intention to do so two Business Days
prior to the last day of such Interest Period, specifying the new
Interest Period therefor, provided, however, that (i) if the Company
shall fail to give notice as provided above, the relevant Eurodollar
Rate Loan shall convert to an Alternate Base Rate Loan immediately upon
the expiration of the then current Interest Period with respect thereto,
(ii) any Eurodollar Rate Loans that are being continued as such shall be
in an aggregate principal amount of at least $500,000 and (iii) no
Eurodollar Rate Loans may be continued as such when any Event of Default
has occurred and is continuing, but shall be automatically converted to
an Alternate Base Rate Loan on the last day of the Interest Period with
respect thereto during which the Agent obtained knowledge of such Event
of Default. The Agent shall notify the Banks promptly upon obtaining
knowledge that an automatic conversion will occur pursuant to clause
(iii) hereof.
2.8 Interest Rate and Payment Dates for Loans.
(a) Interest Rates for Loans Prior to Maturity. (i) Loans made
as Alternate Base Rate Loans shall bear interest for the period from and
including the date thereof, or, in the case of a Loan that has been
converted from a Eurodollar Rate Loan, from the Conversion Date thereof,
until maturity or until converted into Eurodollar Rate Loans, on the
unpaid principal amount thereof at the Alternate Base Rate, and (ii)
Loans made as Eurodollar Rate Loans shall bear interest for each
Interest Period with respect thereto on the unpaid principal amount
thereof at the applicable rate of interest per annum based on the
Eurodollar Rate for each such Interest Period plus the Applicable Margin
for such period based on the Debt Rating of the Company, provided that
if the Company has no Debt Rating, the Applicable Margin shall be the
highest rate per annum applicable to such Loans during the relevant
period. Any change in the Applicable Margin with respect to any Loans
resulting from a change in the Debt Rating of the Company shall be
effective as of the opening of business on the day of the change in the
Debt Rating of the Company.
(b) Overdue Amounts. If any amounts payable hereunder shall not
be paid when due (whether at the stated maturity thereof, by
acceleration, notice of intention to prepay or otherwise), such overdue
amounts shall bear interest payable on demand at a rate per annum equal
to 2% above the (i) Alternate Base Rate for Alternate Base Rate Loans at
such time from the date of such nonpayment until paid in full, and
whether before or after the entry of any judgment thereon and (ii) sum
of the Eurodollar Rate plus the Applicable Margin for Eurodollar Rate
Loans, from the date of such nonpayment until the end of the Interest
Period with respect thereto and whether before or after the entry of any
judgment thereon.
(c) General. Interest on the Loans shall be payable in arrears
on each Interest Payment Date and upon payment (including prepayment) in
full thereof; provided, however, that after an Event of Default has
occurred and is continuing, interest on all Loans shall be payable on
demand made from time to time. At no time shall the interest rate
payable on the Loans, together with the Agent's Fees, the Facility Fee,
the Modification Fee, the Usage Fee and all other fees and amounts
payable hereunder and under the Notes, to the extent that any of the
same are construed to constitute interest, exceed the maximum rate of
interest permitted by law. The Company acknowledges that to the extent
interest payable on the Loans is based upon the Alternate Base Rate,
such Rate is only one of the bases for computing interest on loans made
by the Banks, and by basing interest payable upon the Loans upon the
Alternate Base Rate, the Banks have not committed to charge, and the
Company has not in any way bargained for, interest based on a lower or
the lowest rate at which the Banks may now or in the future make loans
to other borrowers.
2.9 Substituted Interest Rate. In the event that the Agent shall
have reasonably determined in good faith (which determination shall be
conclusive and binding upon the Company) that by reason of circumstances
affecting the London interbank eurodollar market, (i) either adequate
and reasonable means do not exist for ascertaining a Eurodollar Rate
applicable pursuant to paragraph 2.8(a), or (ii) any Bank shall have
notified the Agent that it has reasonably determined in good faith
(which determination shall be conclusive and binding on the Company)
that the Eurodollar Rate will not adequately and fairly reflect the cost
to such Bank of making or maintaining its funding of a Eurodollar Rate
Loan with respect to (a) a proposed Loan that the Company has requested
be made as a Eurodollar Rate Loan, or (b) a Eurodollar Rate Loan that
will result from the requested conversion of any Loan into a Eurodollar
Rate Loan (any such Loan being herein called an "Affected Loan"), the
Agent shall promptly notify the Company and the Banks (by telephone or
otherwise) of such determination no later than 10:00 a.m. (Boston time)
one Business Day prior to the requested Borrowing Date for such Affected
Loan, or the requested Conversion Date of such Loan, as the case may be.
If the Agent shall give such notice, the Company may by no later than
11:00 a.m. (Boston time) on the same Business Day, (i) cancel the
Borrowing Request with respect to such Affected Loan or request that
such Affected Loan be made as an Alternate Base Rate Loan in accordance
with paragraph 2.3 hereof or (ii) cancel its request to convert to an
Affected Loan or request that any Loan that was to have been converted
to an Affected Loan be converted to an Alternate Base Rate Loan in
accordance with paragraph 2.3 hereof. Until such notice has been
withdrawn by the Agent (by notice to the Company promptly upon the Agent
having been notified by such Bank that circumstances would no longer
render any Loan an Affected Loan) no further Affected Loans shall be
made and Company shall not have the right to convert any Loan to an
Affected Loan.
2.10 Illegality. Notwithstanding any provision hereof to the
contrary, if any change in any law, regulation, treaty or directive, or
in the interpretation or application thereof, shall make it unlawful for
any Bank to make or maintain Eurodollar Rate Loans as contemplated by
this Agreement, (a) the commitment of such Bank hereunder to make
Eurodollar Rate Loans or to convert Alternate Base Rate Loans to
Eurodollar Rate Loans or to continue Eurodollar Rate Loans as such shall
forthwith be suspended and (b) such Bank's Loans then outstanding as
Eurodollar Rate Loans shall be converted to Alternate Base Rate Loans on
the last day of the then current Interest Period applicable thereto, or
within such earlier period as required by law. If the commitment of any
Bank with respect to Eurodollar Rate Loans is suspended pursuant to this
paragraph 2.10 and it shall once again become legal for such Bank to
make or maintain its funding of Eurodollar Rate Loans, such Bank's
commitment to make or maintain such Eurodollar Rate Loans shall be
reinstated. Each Bank agrees to promptly notify the Company and the
Agent upon learning of any change referred to above, as well as of any
reinstatement of its ability to make and maintain Eurodollar Rate Loans
as contemplated by this Agreement.
2.11 Increased Costs.
Regulatory Changes. In the event that any change in any law,
regulation, treaty or directive or in the interpretation or application
thereof by any Governmental Body charged with the administration thereof
or compliance by any Bank with any request or directive from any central
bank or other Governmental Body (a "Regulatory Change"):
(i) subjects any Bank to any tax of any kind whatsoever with
respect to any Eurodollar Rate Loan or its obligations under this
Agreement to make Eurodollar Rate Loans, or changes the basis of
taxation of payments to such Bank of principal, interest or any
other amount payable hereunder in respect of its Eurodollar Rate
Loans (except for imposition of, or change in the rate of, tax on
the overall net income of such Bank);
(ii) imposes, modifies or makes applicable any reserve,
special deposit, compulsory loan, assessment or similar requirement
against assets held by, or deposits of, or advances or loans by, or
other credit committed or extended by, or any other acquisition of
funds by, any office of such Bank in respect of its Eurodollar Rate
Loans which is not otherwise included in the determination of a
Eurodollar Rate; or
(iii) imposes on such Bank any other condition with respect
to Loans hereunder or the Commitments;
and the result of any of the foregoing is to increase the cost to such
Bank of making, renewing, converting or maintaining its Eurodollar Rate
Loans, or to reduce any amount receivable in respect of its Eurodollar
Rate Loans, then, in any such case, the Company shall promptly pay to
such Bank, upon its demand, any additional amounts necessary to
compensate such Bank for such additional cost or reduction in such
amount receivable. A statement setting forth the calculations of any
additional amounts payable pursuant to the foregoing sentence submitted
by a Bank to the Company shall be presumed to be correct absent manifest
error.
2.12 Indemnity. Notwithstanding anything contained herein
to the contrary, if the Company shall fail to borrow on a Borrowing Date
after it shall have given a Borrowing Request, to the extent only that
such Borrowing Request includes Eurodollar Loans, or if the right of the
Company to have Eurodollar Rate Loans outstanding hereunder shall be
suspended or terminated in accordance with the provisions of this
Agreement prior to the last day of the Interest Period applicable
thereto, or if, while a Eurodollar Rate Loan is outstanding, any
repayment or prepayment of the principal amount of such Eurodollar Rate
Loan is made for any reason (including, without limitation, as a result
of acceleration or illegality) on a date which is prior to the last day
of the Interest Period applicable thereto, the Company agrees to
indemnify each Bank against, and to pay on demand directly to such Bank,
an amount, if greater than zero, equal to (i):
A x (B - C) x D
---
365
where:
"A" equals the Affected Principal Amount;
"B" equals the Eurodollar Rate (expressed as a
decimal), as the case may be, applicable to such
Eurodollar Rate Loan;
"C" equals the applicable Eurodollar Rate (expressed
as a decimal), as the case may be, in effect on the
date of such failure to borrow, termination,
prepayment or repayment, based on the applicable
rates offered or bid, as the case may be, on such
date (or, if no such rate is determinable on such
date, the rate or rates offered or bid, as the case
may be, determinable on the date closest thereto),
for deposits in an amount equal approximately to the
Affected Principal Amount with an Interest Period
equal approximately to the period commencing on the
first day of such Remaining Interest Period and
ending on the last day of such Remaining Interest
Period or ending on the last day of the applicable
Interest Payment Period, as the case may be, as
determined by the Bank;
"D" equals the number of days from and including the
first day of the Remaining Interest Period to but
excluding the last day of such Remaining Interest
Payment Period;
and (ii) any additional amounts necessary to compensate such Bank for
such additional cost or reduction in such amount receivable and any
other out-of-pocket loss or expense (including any internal processing
charge customarily charged by such Bank) suffered by such Bank in
liquidating deposits prior to maturity in amounts which correspond to
the proposed borrowing, prepayment or repayment. The determination by
each Bank of the amount of any such loss or expense shall be presumed to
be correct absent manifest error.
2.13 Use of Proceeds. The proceeds of the Loans shall be used
for working capital and other general corporate purposes.
2.14 Capital Adequacy. If either (i) the introduction of, or any
change or phasing in of, any law or regulation or in the interpretation
thereof by any Governmental Body charged with the administration thereof
or (ii) compliance with any directive, guideline or request from any
central bank or Governmental Body (whether or not having the force of
law) promulgated or made after the date hereof (but including, in any
event, any law, rule, regulation, interpretation, directive, guideline
or request contemplated by the report dated July 1988 entitled
"International Convergence of Capital Measurement and Capital Standards"
issued by the Basle Committee on Banking Regulations and Supervisory
Practices) affects or would affect the amount of capital required or
expected to be maintained by a Bank (or any lending office of such Bank)
or any corporation directly or indirectly owning or controlling such
Bank (or any lending office of such Bank) and such Bank shall have
determined that such introduction, change or compliance has or would
have the effect of reducing the rate of return on such Bank's capital or
the asset value to such Bank of any Loan made by such Bank as a
consequence, directly or indirectly, of its obligations to make and
maintain the funding of Loans hereunder to a level below that which such
Bank could have achieved but for such introduction, change or compliance
(after taking into account such Bank's policies regarding capital
adequacy) by an amount deemed by such Bank to be material, then, upon
demand by such Bank, the Company shall promptly pay to such Bank such
additional amount or amounts as shall be sufficient to compensate such
Bank for such reduction on the rate of return. Each Bank shall
calculate such amount or amounts payable to it under this paragraph 2.14
in a manner consistent with the manner in which it shall calculate
similar amounts payable to it by other borrowers having provisions in
their credit agreements comparable to this paragraph 2.14. Each Bank
agrees to provide the Company with a certificate setting forth a
description of any such amount in respect of which it seeks payment
under this paragraph 2.14. Each Bank's determination of such amount or
amounts that will compensate such Bank for such reductions shall be
presumed correct absent manifest error.
2.15 Extension of Termination Date. The Company may, pursuant to
a Commitment Extension Request in the form of Exhibit E delivered to the
Agent and each Bank not less than 75 days prior to the then scheduled
Termination Date, request each Bank to extend its Commitment for an
additional three-hundred sixty-four (364) day period expiring on the
364th day of such period (or, if such date is not a Business Day, on the
immediately preceding Business Day). Each of the Banks shall, within 45
days of receipt of a Commitment Extension Request from the Company,
provide the Company with a non-binding preliminary indication regarding
whether such Bank is likely to consent to the extension of its
Commitment. If all Banks consent to the extension of their respective
Commitments, which consents shall be given no less than 30 days prior to
the then scheduled Termination Date, by signing and returning an
original copy of the Commitment Extension Request attached hereto as
Exhibit E, such Termination Date shall be so extended, and each Bank
hereby agrees that the Agent may amend this Agreement and any other Loan
Document to the extent necessary to effectuate such extension without
the necessity of obtaining any such Bank's signature, the provisions of
paragraph 13 to the contrary notwithstanding. In the event that less
than all of the Banks consent to an extension of their respective
Commitments, the Termination Date shall not be extended, unless the
Company designates another bank reasonably satisfactory to the Banks
willing so to extend the Termination Date, or one or more of the
signatory Banks elect to increase its or their Commitments to the amount
of the Commitment of the nonconsenting Bank (any such other bank,
including any signatory Bank, to the extent of, and with respect to such
an increase in its Commitment, being herein called a "Replacement
Bank"), to assume the Commitment and obligations of such nonconsenting
Bank or Banks (each, a "Nonconsenting Bank") with respect to its Loans,
and to purchase the outstanding Note of such nonconsenting Bank and such
Nonconsenting Bank's rights with respect to its Loans, without recourse
or warranty, for a purchase price equal to the outstanding principal
balance of the Note of such Nonconsenting Bank, plus all interest
accrued thereon and all other amounts owing to such Nonconsenting Bank
hereunder. Upon such assumption and purchase by a Replacement Bank, and
provided that the Banks (excluding the Nonconsenting Banks and each
Replacement Bank) have consented to the Commitment Extension Request
prior to the then scheduled Termination Date, (i) the Termination Date
shall be so extended, (ii) each such Replacement Bank shall be deemed to
be a "Bank" for purposes of this Agreement, and (iii) each Nonconsenting
Bank shall cease to be a "Bank" for all purposes of this Agreement
(except with respect to its rights hereunder to be reimbursed for costs
and expenses, and to indemnification with respect to, matters
attributable to events, acts or conditions occurring prior to such
assumption and purchase) and shall no longer have any obligations
hereunder.
Each Bank will use its best efforts to respond promptly to any
Commitment Extension Request, provided that no Bank's failure to so
respond shall create any claim against it or have the effect of
extending the Termination Date.
2.16 Notice of Costs: Substitution of Banks. Each Bank will
notify the Company of any event that will entitle such Bank to
compensation under paragraphs 2.11 and 2.14 as promptly as practicable,
but in any event within 45 days after an officer of the Bank responsible
for matters concerning this Agreement has knowledge of such event. If
such Bank fails to give such notice, such Bank shall only be entitled to
such compensation for the period commencing on the date of the giving of
such notice. Each Bank shall use its best efforts to avoid the need to
give a notice under paragraph 2.11 or 2.14 by designating a different
Applicable Lending Office outside of the United States if such
designation would avoid the need to give such notice and will not, in
the sole opinion of such Bank, be disadvantageous to such Bank. In the
event the Company receives such notice or is otherwise required under
the provisions of paragraphs 2.11 or 2.14 to make payments in a material
amount to any Bank, the Company may, so long as no Event of Default
shall have occurred and be continuing, elect to substitute such Bank as
a party to this Agreement; provided that, concurrently with such
substitution, (i) the Company shall pay that Bank all principal,
interest and fees and other amounts (including without limitation,
amounts, if any, owed under paragraph 2.11, 2.12 or 2.14) owed to such
Bank through such date of termination, (ii) another commercial bank
satisfactory to the Company and the Agent (or if the Agent is also the
Bank to be substituted, the successor Agent) shall agree, as of such
date, to become a Bank (whether by assignment or amendment) for all
purposes under this Agreement and to assume all obligations of the Bank
to be substituted as of such date, and (iii) all documents, supporting
materials and fees necessary, in the judgment of the Agent (or if the
Agent is also the Bank to be substituted, the successor Agent) to
evidence the substitution of such Bank shall have been received and
approved by the Agent as of such date.
3. FEES; PAYMENTS.
3.1 Facility Fee. The Company agrees to pay to the Agent for the
account of the Banks a fee (the "Facility Fee") equal to the rate per
annum determined by reference to Exhibit B hereto based upon the Debt
Rating of the Company multiplied by the Aggregate Commitment, which
Facility Fee shall be payable in arrears on the last day of each March,
June, September and December of each year, commencing on the first such
date following the Effective Date and continuing until the later of the
Termination Date or the date all sums due hereunder and under the Notes
are paid in full; provided that if the Company has no Debt Rating, the
Facility Fee shall be determined at the highest rate per annum for the
relevant period set forth on Exhibit B.
3.2 Fees of the Agent. The Company agrees to pay to the Agent
for its own account, such fees (the "Agent's Fees") for its services
hereunder in such amounts and at such times as previously agreed upon by
the Company and the Agent.
3.3 Computation of Interest and Fees.
(a) Interest in respect of Alternate Base Rate Loans and all
other fees payable by the Company hereunder shall be calculated on the
basis of a 365-day year (or 366-day year in a leap year) for the actual
number of days elapsed. Interest in respect of Eurodollar Rate Loans
and the Facility Fee shall be calculated on the basis of a 360-day year
for the actual number of days elapsed. Any change in the interest rate
on a Loan resulting from a change in the Alternate Base Rate or
Eurodollar Rate shall become effective as of the opening of business on
the day on which such change shall become effective. The Agent shall,
as soon as practicable, notify the Company and the Banks of the
effective date and the amount of each such change but failure of the
Agent to do so shall not in any manner affect the obligation of the
Company to pay interest on the Loans in the amounts and on the dates
required.
(b) Each determination of the Alternate Base Rate or the
Eurodollar Rate by the Agent pursuant to any provision of this Agreement
shall be presumed to be correct absent manifest error.
3.4 Pro Rata Treatment and Application of Principal Payments.
Each Borrowing by the Company from the Banks, any conversion of Loans
from one Type to the same or another Type, and any reduction of the
Aggregate Commitments of the Banks, shall be made pro rata according to
the Commitment Percentage of each Bank. All payments (including
prepayments) to be made by the Company on account of principal and
interest on Loans comprising the same Borrowing shall be made pro rata
according to the outstanding principal amount of each Bank's Loans. All
payments by the Company on all Loans shall be made without set-off or
counterclaim and shall be made prior to 12:00 noon, Boston time, on the
date such payment is due, to the Agent for the account of the Banks at
the Agent's office specified in paragraph 11.1, in each case in lawful
money of the United States of America and in immediately available
funds, and, as between the Company and the Banks, any payment by the
Company to the Agent for the account of the Banks shall be deemed to be
payment by the Company to the Banks; provided, however, that any payment
received by the Agent on any Business Day after 12:00 noon shall be
deemed to have been received on the immediately succeeding Business Day.
The Agent shall distribute such payments to the Banks promptly upon
receipt in like funds as received. If any payment hereunder or on any
Note becomes due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day
(unless, in the case of Eurodollar Loans, the result of such extension
would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business
Day) and, with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension.
3.5 Modification Fee. The Company agrees to pay on or prior to
the Effective Date to the Agent for the account of the Banks a
modification fee (the "Modification Fee") in the amount of $30,000 to be
divided evenly among the Banks.
4. REPRESENTATIONS AND WARRANTIES. In order to induce the Agent
and the Banks to enter into this Agreement, the Company hereby
represents and warrants to the Agent and to each Bank that:
4.1 Subsidiary. The Company has the Subsidiaries set forth in
Exhibit F. The shares of each corporate Subsidiary owned by the Company
are duly authorized, validly issued, fully paid and non-assessable and
are owned free and clear of any Liens, except Liens permitted by
paragraph 8.2.
4.2 Corporate Existence and Power. The Company is a corporation
duly organized, validly existing and in good standing under the laws of
the State of Vermont and has all requisite corporate power and authority
to own its Property and to carry on its business as now conducted. The
Company is in good standing and duly qualified to do business in each
jurisdiction in which the failure to so qualify would have a Material
Adverse Effect.
4.3 Corporate Authority. The Company has full corporate power
and authority to enter into, execute, deliver and carry out the terms of
this Agreement and to make the borrowings contemplated hereby, to
execute, deliver and carry out the terms of the Notes and to incur the
obligations provided for herein and therein, all of which have been duly
authorized by all necessary corporate action on its part and are in full
compliance with its Charter and By-Laws. No consent or approval of, or
exemption by, shareholders or any Governmental Body is required to
authorize, or is required in connection with the execution, delivery and
performance of, this Agreement and the Notes, or is required as a
condition to the validity or enforceability of this Agreement and the
Notes, except for the approval of the VPSB referred to in paragraph 5.6.
4.4 Binding Agreement. This Agreement and the Mortgage
constitute, and the Notes, when issued and delivered pursuant hereto for
value received, will constitute, the valid and legally binding
obligations of the Company enforceable against the Company in accordance
with their respective terms, except as such enforceability may be
limited by equitable principles and by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally.
4.5 Litigation. Except for the matters set forth in the
Designated Documents, there are no actions, suits or arbitration
proceedings (whether or not purportedly on behalf of the Company or any
Subsidiary) pending or to the knowledge of the Company threatened
against the Company or any Subsidiary, or maintained by the Company or
any Subsidiary, in law or in equity before any Governmental Body which,
if decided adversely to the Company or such Subsidiary, would have a
Material Adverse Effect upon the Company after giving effect to reserves
reflected in the Financial Statements or the footnotes thereto. There
are no proceedings pending or to the knowledge of the Company threatened
against the Company which call into question the validity and
enforceability of this Agreement or the Notes.
4.6 Non Conflicting Agreements. Except for the matters set forth
in the Designated Documents, the Company is not in default under any
agreement to which it is a party or by which it or any of its Property
is bound, the effect of which would have a Material Adverse Effect upon
the Company. No provision of the Charter or By-Laws of the Company, and
no provision of any existing mortgage, indenture contract, agreement,
statute (including, without limitation, any applicable usury or similar
law), rule, regulation, judgment, decree or order binding on the Company
or any Subsidiary could in any way prevent the execution, delivery or
carrying out of the terms of this Agreement and the Notes, and the
taking of any such action will not constitute a default under, or result
in the creation or imposition of, or obligation to create, any Lien not
permitted by paragraph 8.2 upon the Property of the Company pursuant to
the terms of any such mortgage, indenture, contract or agreement.
4.7 Taxes. The Company has filed or caused to be filed all tax
returns material to the Company required by law to be filed, and has
paid, or has made adequate provision for the payment of, all taxes shown
to be due and payable on said returns or in any assessments made against
it. No tax liens have been filed and no claims are being asserted with
respect to such taxes which are required by GAAP to be reflected in the
Financial Statements and are not so reflected therein. The Internal
Revenue Service has audited and settled upon, or the applicable statutes
of limitation have run upon, all Federal income tax returns of the
Company through the tax year ended December 31, 1991, and, to the extent
required by GAAP, the results of all such audits are reflected in the
Financial Statements. The charges, accruals and reserves on the books
of the Company with respect to all taxes are considered by the
management of the Company to be adequate, and the Company knows of no
unpaid assessment which is due and payable against the Company which
would have a Material Adverse Effect, except such thereof as are being
contested in good faith and by appropriate proceedings diligently
conducted and for which adequate reserves have been set aside in
accordance with GAAP.
4.8 Financial Statements. The Company heretofore delivered to
each Bank (i) copies of the Consolidated Balance Sheets at December 31,
1997, December 31, 1996 and December 31, 1995, and the related
Consolidated Statements of Income, Cash Flows and Capitalization Data
for the years ended December 31, 1997, 1996, 1995 and 1994 and (ii)
copies of the Consolidated quarterly reports of the Company and its
Subsidiaries as of June 30, 1996, September 30, 1996, March 31, 1997,
June 30, 1997, September 30, 1997 and March 31, 1998, each containing a
Consolidated balance sheet and Consolidated statements of income and
cash flows of the Company and its Subsidiaries (the statements in (i)
and (ii) above being sometimes referred to herein as the "Financial
Statements"). The financial statements set forth in (i) above were
audited and reported on by the Accountants on January 29, 1996, January
31, 1997, February 2, 1998 or March 2, 1998, as the case may be and the
financial statements set forth in (ii) above were prepared by the
Company. The Financial Statements fairly present the Consolidated
financial condition and the Consolidated results of operations of the
Company and its Subsidiaries as of the dates and for the periods
indicated therein, and have been prepared in conformity with GAAP.
Except (a) as reflected in the financial statements specified in (i)
above or in the footnotes thereto, or (b) as otherwise disclosed to the
Banks in a writing specifically referring to this paragraph 4.8, neither
the Company nor any Subsidiary has any obligation or liability of any
kind (whether fixed, accrued, contingent, unmatured or otherwise) which
is material to the Company and its Subsidiaries on a Consolidated basis
and which, in accordance with GAAP, should have been shown on such
financial statements and were not, other than those incurred in the
ordinary course of their respective businesses since December 31, 1997.
Since December 31, 1997, each of the Company and each Subsidiary has
conducted its business only in the ordinary course, and as of the
Effective Date, except for the matters set forth in the Designated
Documents, there has been no Material Adverse Change.
4.9 Compliance with Applicable Laws. Except as set forth in the
Designated Documents, neither the Company nor any Subsidiary is in
default with respect to any judgment, order, writ, injunction, decree or
decision of any Governmental Body applicable to the Company or such
Subsidiary which default would have a Material Adverse Effect upon the
Company. Except as set forth in the Designated Documents, each of the
Company and each Subsidiary is complying in all material respects with
all applicable material statutes and regulations of all Governmental
Bodies, including ERISA and all Environmental Laws, a violation of which
would have a Material Adverse Effect upon the Company.
4.10 Governmental Regulations. The Company is not an "Investment
Company" as such term is defined in the Investment Company Act of 1940,
as amended.
4.11 Property. The Company has good and marketable title to all
of its Property, title to which is material to the Company, subject to
no Lien, except as permitted by paragraph 8.2.
4.12 Federal Reserve Regulations. The Company is not engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any margin
stock within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System, as amended. No part of the proceeds of the
Loans will be used (i) to purchase or carry any such margin stock, (ii)
to extend credit to others for the purpose of purchasing or carrying any
margin stock, (iii) for a purpose which violates the provisions of
Regulations G, U and X of the Board of Governors of the Federal Reserve
System, as amended, or (iv) for a purpose which violates any other
applicable law, rule or regulation of any Governmental Body. Not more
than 25% of the value of the aggregate of the assets of the Company
subject to the provisions of this Agreement is represented by margin
stock within the meaning of said Regulation U.
4.13 No Misrepresentation. No representation or warranty
contained herein and no certificate or report furnished or to be
furnished by the Company in connection with the transactions
contemplated hereby, contains or will contain a misstatement of material
fact, or omits or will omit to state a material fact required to be
stated in order to make the statements herein or therein contained not
misleading in the light of the circumstances under which made.
4.14 Pension Plans. Each Plan, and to the best of the Company's
knowledge each Multiemployer Plan, established or maintained by the
Company and its Subsidiaries, is in material compliance with the
applicable provisions of ERISA and the Code, and the Company and its
Subsidiaries have filed all material reports required to be filed with
respect to each such Plan by ERISA and the Code. The Company and its
Subsidiaries have met all requirements with respect to funding the Plans
imposed by ERISA or the Code. Since the effective date of ERISA, there
have not been, nor are there now existing, any events or conditions
which would permit any Plan and to the best of the Company's knowledge
any Multiemployer Plan to be terminated under circumstances which would
cause the lien provided under Section 4068 of ERISA to attach to the
Property of the Company or any of its Subsidiaries. Since the effective
date of ERISA, no reportable event as defined in Title IV of ERISA,
which constitutes grounds for the termination of any Plan and to the
best of the Company's knowledge any Multiemployer Plan, has occurred and
no Plan or any related trust has been terminated in whole or in part
which would have a Material Adverse Effect.
4.15 Public Utility Holding Company Act. The Company is a public
utility holding company under the Public Utility Holding Company Act of
1935, as amended, (the "Public Utility Act") and each of its
Subsidiaries are "subsidiaries" of a "holding company" under the Public
Utility Act. The Company and its Subsidiaries have filed an exemption
statement under Section 3(a)(2) of the Public Utility Act and is
therefore exempt from the provisions of the Public Utility Act, except
for Section 9(a)(2) thereof (which prohibits the acquisition of
securities of certain other utility companies without approval of the
Securities and Exchange Commission).
4.16 Approvals. The Company has obtained all authorizations,
approvals or consents of and made all filings or registrations with all
Governmental Bodies as are necessary to be obtained or made by the
Company for the execution, delivery or performance by the Company of
this Agreement or the Notes and all such authorizations, approvals and
consents are in full force and effect.
4.17 Regulatory Investigations. The VPSB is not currently
conducting and has not conducted within the five (5) year period
immediately preceding the date hereof, an investigation of the Company
or any of its Subsidiaries, other than an investigation conducted by the
VPSB in its routine general supervisory role of the Company as a public
utility company.
4.18 No Adverse Change or Event. Except for the matters set
forth in the Designated Documents, since December 31, 1997, no change in
the business, assets, liabilities, condition (financial or otherwise),
results of operations or business prospects of the Company has occurred,
and no event has occurred or failed to occur, that has had or would
reasonably be expected to have, either alone or in conjunction with all
other such changes, events and failures, a Material Adverse Effect on
(a) the Company or (b) any Loan Document. Such an adverse change may
have occurred, and such an event may have occurred or failed to occur,
at any particular time notwithstanding the fact that at such time no
default or Event of Default shall have occurred and be continuing.
4.19 Year 2000 Problem. The Company and its Subsidiaries have
reviewed the areas within their businesses and operations which would be
adversely affected by, and have developed or are developing a program to
address on a timely basis, the "Year 2000 Problem" (i.e. the risk that
computer applications used by the Company or any of its Subsidiaries may
be unable to recognize and perform properly date-sensitive functions
involving certain dates prior to and any date after December 31, 1999).
Based upon such review, the Company reasonably believes that the "Year
2000 Problem" will not have any Material Adverse Effect on the Company.
The Company expects to achieve year 2000 compliance by June 30, 1999.
5. CONDITIONS OF BORROWING -- FIRST BORROWING. In addition to
the requirements set forth in paragraph 6, the obligations of the Banks
to make the first Loans on the initial Borrowing Date are subject to the
fulfillment of the following conditions precedent:
5.1 Evidence of Corporate Action. The Agent shall have received
a certificate, dated the Effective Date, of the Secretary or an
Assistant Secretary of the Company (i) attaching a true and complete
copy of the resolutions of its Board of Directors and of all documents
evidencing other necessary corporate action (in form and substance
satisfactory to the Agent and to Special Counsel) taken by the Company
to authorize this Agreement, the Notes and the borrowings hereunder,
(ii) attaching a true and complete copy of the Charter and the By-Laws
of the Company, and (iii) setting forth the incumbency of the officer or
officers of the Company who sign this Agreement and the Notes, including
therein a signature specimen of such officer or officers, together with
a certificate of the Secretary of State of Vermont as to the good
standing of, and the payment of franchise taxes therein by, the Company,
together with such other documents as the Agent or Special Counsel shall
reasonably require.
5.2 Notes. The Agent shall have received and be in possession of
the Notes executed by the duly authorized officer or officers of the
Company.
5.3 Mortgage. The Mortgage shall have been executed by the duly
authorized officer or officers of the Company and the Agent shall have
received evidence satisfactory to it that Uniform Commercial Code
financing statements and the Mortgage shall have been filed in such
jurisdictions as shall be necessary to grant the Agent on behalf of the
Banks a priority security interest in, and Lien on, the Mortgaged
Property, subject only to the Mortgage securing the First Mortgage
Bonds.
5.4 Opinion of Counsel to the Company. The Agent shall have
received (a) the opinion of Sheehey Brue Gray & Furlong P.C., counsel to
the Company, or its successor, if any, addressed to the Banks and to the
Agent, dated the Effective Date, substantially in the form of
Exhibit G-1, which opinion shall also include such counsel's opinion as
to the security interest granted to the Banks pursuant to the Mortgage
and the perfection of the lien of the Mortgage and (b) the opinion of
the General Counsel of the Company addressed to the Banks and to the
Agent, dated the Effective Date, substantially in the form of
Exhibit G-2.
5.5 Fees. The fees of Special Counsel and the Modification Fee
shall have been paid.
5.6 VPSB Approval. The Agent shall have received true copies for
each Bank of any required order or orders of the VPSB approving this
Agreement in the form executed and delivered to the Agent by the Company
and each Bank with no material changes to this Agreement. Such approval
shall be final and shall no longer be subject to appeal, shall be in
full force and effect, shall be in form and substance satisfactory to
the Agent and Special Counsel. The Agent acknowledges receipt of the
VPSB order dated June 3, 1998 in Docket No. 6015 approving the
amendments contained in this Agreement. In addition, the Agent shall
have received a certificate of the Secretary of the Company to the
effect that no other consents, approvals or licenses are necessary in
connection with the borrowings hereunder.
6. CONDITIONS OF BORROWING -- ALL BORROWINGS. The obligations of the
Banks to make all Loans hereunder on each Borrowing Date are subject to
the fulfillment of the following conditions precedent:
6.1 Compliance. On each Borrowing Date, and after giving effect
to the Loans to be made on such date (a) the Company and each Subsidiary
shall be in compliance with all of the terms, covenants and conditions
of this Agreement, (b) there shall exist no Event of Default, (c) the
representations and warranties contained in this Agreement, or otherwise
in writing made by the Company in connection herewith shall be true and
correct in all material respects with the same effect as though such
representations and warranties had been made on such Borrowing Date
(except such thereof as specifically refer to an earlier date) and (d)
no event shall have occurred or failed to occur, that has had or would
reasonably be expected to have, either alone or in conjunction with all
other such events and failures, a Material Adverse Effect since the date
of the last Borrowing Date, and the Agent shall have received a
certificate in the form of Exhibit C attached hereto, dated the
Borrowing Date, and signed on behalf of the Company by a duly authorized
officer of the Company, to the same effect as all of the foregoing
matters.
6.2 Loan Closings. All documents required by paragraphs 5 and 6
of this Agreement to be executed and/or delivered to the Agent on or
before the applicable Borrowing Date shall have been executed and
delivered at the office of the Agent set forth in paragraph 11 on or
before such Borrowing Date.
6.3 Approval of Counsel. All legal matters in connection with
the making of each Loan on Borrowing Date shall be reasonably
satisfactory to such counsel with whom the Agent may deem it necessary
to consult.
6.4 Borrowing Request. The Agent shall have received a Borrowing
Request.
6.5 Other Documents. The Agent shall have received such other
documents as the Agent shall reasonably require.
7. AFFIRMATIVE COVENANTS.
The Company covenants and agrees that on and after the Effective
Date until the later of the termination of the Commitments or the
payment in full of the Notes and the performance by the Company of all
other obligations of the Company hereunder, unless the Agent shall
otherwise consent in writing as provided in paragraph 13, the Company
will:
7.1 Corporate Existence. Maintain its corporate existence, in
good standing in the jurisdiction of its incorporation or organization
and in each other jurisdiction in which the character of the Property
owned or leased by it therein or the transaction of its business makes
such qualification necessary, except as otherwise expressly permitted
hereunder.
7.2 Taxes. Pay and discharge when due all taxes, assessments and
governmental charges and levies upon the Company, and upon the income,
profits and Property of the Company, which if unpaid would have a
Material Adverse Effect or become a Lien not permitted under paragraph
8.2, unless and to the extent only that such taxes, assessments, charges
and levies, (a) shall be contested in good faith and by appropriate
proceedings diligently conducted by the Company, provided that such
reserve or other appropriate provision, if any, as shall be required in
accordance with GAAP shall have been made therefor, or (b) are not in
the aggregate material to the financial condition, Property or
operations of the Company.
7.3 Insurance. Maintain insurance with financially sound
insurance carriers on such of its Property in such amounts, subject to
such deductibles and self-insured amounts and against such risks as is
customarily maintained by similar businesses, including, without
limitation, public liability, workers' compensation and employee
fidelity insurance.
7.4 Payment of Indebtedness and Performance of Obligations. Pay
and discharge promptly as and when due all lawful indebtedness,
obligations and claims for labor, materials and supplies or otherwise
(including, without limitation, Funded Debt) which, if unpaid, would (a)
have a Material Adverse Effect, or (b) become a Lien not permitted by
paragraph 8.2, provided that the Company shall not be required to pay
and discharge or cause to be paid and discharged any such indebtedness,
obligation or claim so long as the validity thereof shall be contested
in good faith and by appropriate proceedings diligently conducted by the
Company, and further provided that such reserve or other appropriate
provision as shall be required in accordance with GAAP shall have been
made therefor.
7.5 Observance of Legal Requirements; ERISA. Observe and comply,
and cause each Subsidiary to observe and comply, in all material
respects with all laws (including ERISA and all Environmental Laws),
ordinances, orders, judgments, rules, regulations, certifications,
franchises, permits, licenses, directions and requirements of all
Governmental Bodies, which now or at any time hereafter may be
applicable to the Company or such Subsidiary, a violation of which would
have a Material Adverse Effect upon the Company, except such thereof as
shall be contested in good faith and by appropriate proceedings
diligently conducted by the Company or such Subsidiary, provided that
such reserve or other appropriate provision, if any, as shall be
required in accordance with GAAP shall have been made therefor.
7.6 Financial Statements and Other Information. Furnish to the
Agent and the Banks:
(a) as soon as available, but in no event more than 90 days after
the close of each fiscal year of the Company, copies of its audited
Consolidated Balance Sheet and the related audited Consolidated
Statements of Income, Shareholders' Equity and Changes in Financial
Position for such fiscal year setting forth in each case in comparative
form the corresponding figures for the preceding fiscal year all
reported by the Accountants which report shall state that said financial
statements fairly present the financial position and results of
operations of the Company as at the end of and for such fiscal year
except as specifically stated therein, as of and through the end of such
fiscal year, prepared in accordance with GAAP and accompanied by a
report with respect thereto of the Accountants, together with a
certificate signed on behalf of the Company by the principal financial
officer thereof to the effect that having read this Agreement, and based
upon an examination which in the opinion of such officer was sufficient
to enable such officer to make an informed statement, (x) such
statements fairly present the financial position and results of the
operations of the Company and its Subsidiaries on a Consolidated basis
to the best of such officer's knowledge, and (y) nothing came to such
officer's attention which caused such officer to believe that an Event
of Default has occurred, or if an Event of Default has occurred, stating
the facts with respect thereto and whether the same has been cured prior
to the date of such certificate, and, if not, what action is proposed to
be taken with respect thereto;
(b) as soon as available, but in no event more than 45 days after
the close of each quarter (except the last quarter) of each fiscal year
of the Company a Consolidated Balance Sheet and Consolidated Statements
of Income and Changes in Financial Position of the Company and its
Subsidiaries as of and through the end of such quarter, together with a
certificate signed on behalf of the Company by the principal financial
officer thereof to the effect that having read this Agreement, and based
upon an examination which in the opinion of such officer was sufficient
to enable such officer to make an informed statement, (x) such
statements fairly present the financial position and results of the
operations of the Company and its Subsidiaries on a Consolidated basis
to the best of such officer's knowledge, and (y) nothing came to such
officer's attention which caused such officer to believe that an Event
of Default has occurred, or if an Event of Default has occurred, stating
the facts with respect thereto and whether the same has been cured prior
to the date of such certificate, and, if not, what action is proposed to
be taken with respect thereto;
(c) prompt notice if: (x) any obligation of the Company (other
than its obligations under this Agreement or the Notes) for a payment in
excess of $500,000 of any Funded Debt is not paid when due or within any
grace period for the payment thereof or is declared or shall become due
and payable prior to its stated maturity, or (y) to the knowledge of any
Authorized Signatory of the Company there shall occur and be continuing
an event which constitutes, or which with the giving of notice or the
lapse of time, or both, would constitute an Event of Default under any
agreement with respect to Funded Debt of the Company (including this
Agreement);
(d) prompt written notice in the event that (i) the Company or
any Subsidiary shall fail to make any payments when due and payable
under any Plan or Multiemployer Plan, or (ii) the Company or any
Subsidiary shall receive notice from the Internal Revenue Service or the
Department of Labor that the Company or such Subsidiary shall have
failed to meet the minimum funding requirements of any Plan or
Multiemployer Plan, including therewith a copy of such notice;
(e) promptly upon becoming available, copies of all regular,
periodic or special reports or other material which may be filed with or
delivered by the Company to the Securities and Exchange Commission, or
any other Governmental Body succeeding to the functions thereof;
(f) prompt written notice in the event the Debt Rating of the
Company shall change or the Company shall have no Debt Rating;
(g) prompt written notice and a copy of any Environmental Notice
excluding, however, any such Environmental Notices relating to the Pine
Street Marsh site in Burlington, Vermont (the "Pine Street Site") if the
effect of such Environmental Notice (i) does not change the status of
the Pine Street Site as it exists as of the date hereof as it relates to
the Company and (ii) would not have a Material Adverse Effect;
(h) a certificate of the Company, dated the date of each such
annual report or quarterly report required pursuant to paragraphs 7.6(a)
and (b), and signed on behalf of the Company by the President, chief
financial officer, chief accounting officer or Treasurer, which sets
forth all relevant calculations needed to determine whether the Company
is in compliance with paragraph 8.8 hereof, which calculations are based
on the most recent fiscal quarter required to be supplied pursuant to
paragraphs 7.6(a) and (b); and
(i) such other information and reports relating to the affairs of
the Company and its Subsidiaries, as the Agent or any Bank at any time
or from time to time may reasonably request.
7.7 Inspection. Permit representatives of the Agent or any Bank
to visit the offices of the Company, to examine the books and records
thereof and to make copies or extracts therefrom, and to discuss the
affairs of the Company with the officers, including the financial
officers, thereof, at reasonable times, at reasonable intervals and with
reasonable prior notice.
7.8 Year 2000 Compliance. The Company shall use its best efforts
to be year 2000 compliant in all material respects by June 30, 1999. The
Company shall provide to the Agent and the Banks such information and
reports relating to the Company's efforts to be year 2000 compliant as
the Agent or any Bank at any time or from time to time may reasonably
request.
7.9 Property Searches. Within 30 days after the Effective Date,
the Company shall cause a law firm mutually acceptable to the Company
and the Agent (the "Designated Firm") to prepare and deliver to the
Agent a summary, after due investigation, with respect to each of the
Company's ten most valuable parcels of real estate (based upon assessed
value), that describes, in reasonable detail, all liens, encumbrances
and other rights with respect to each such parcel (such summary, the
"Partial Property Search Summary"). If, based on the Partial Property
Search Summary, the priority of the lien of the Mortgage is neither a
first nor a second priority lien on any of such parcels included in the
Partial Property Search Summary and, in the reasonable opinion of the
Agent or any of the Banks, such subordinate position could have a
material and adverse effect on the ability of the Banks to realize value
from the Mortgaged Property in an amount at least equal to the Aggregate
Commitments upon the occurrence of an Event of Default, then the Agent
or any of the Banks shall have the right to require the Company, at the
Company's sole cost and expense, to cause the Designated Firm to prepare
and deliver to the Agent a summary, after due investigation, with
respect to each parcel of real estate constituting the Mortgaged
Property that describes, in reasonable detail, all liens, encumbrances
and other rights with respect to each such parcel (such summary, the
"Full Property Search Summary").
8. NEGATIVE COVENANTS. The Company covenants and agrees that from the
Effective Date until the later of the termination of the Commitments or
the payment in full of the Notes and the performance by the Company of
all other obligations of the Company hereunder, unless the Agent shall
otherwise consent in writing as provided in paragraph 13, the Company
will not:
8.1 Funded Debt. Create, incur, assume, guarantee or suffer to
exist any Short-Term Funded Debt (excluding the Loans) in excess of
$8,000,000, individually or in the aggregate, excluding, however, the
Company's payment obligations meeting the capital lease accounting
requirements under SFAS 13 pursuant to certain thirty-year support
agreements among the Company, VELCO and other New England Power Pool
members and Hydro-Quebec in connection with the construction of the
second phase of the interconnection between the New England electric
systems and that of Hydro-Quebec, or unless the same is permitted or
allowed in connection with the provisions of the First Mortgage Bonds
specifically relating to restrictions on Funded Debt, which provisions
are incorporated by reference herein as if fully set forth herein.
8.2 Liens. Create, incur, assume or suffer to exist any Lien
upon any of its Property, whether now owned or hereafter acquired, to
secure any indebtedness or other obligation, except for Liens existing
as of April 13, 1998 and arising in connection with the First Mortgage
Bonds, the provisions of which specifically relating to restrictions on
Liens are incorporated by reference herein as if fully set forth herein,
or arising pursuant to the terms of this Agreement, and except for the
following:
(i) materialmens', mechanics', suppliers', tax and other like
liens arising in the ordinary course of business securing obligations
which are not overdue, or if overdue are being contested in good faith
by appropriate proceedings and then only to the extent that the Company
has set aside on its books adequate reserves therefor in accordance with
GAAP and such contest does not have a Material Adverse Effect; liens
arising in connection with workers' compensation, unemployment
insurance, and appeal and release bonds, and other liens incident to the
conduct of business or the operation of property and assets and not
incurred in connection with the obtaining of any advance or credit and
which Liens do not, or would not, have a Material Adverse Effect;
(ii) Liens arising out of judgments or awards against the Company
with respect to which at the time an appeal or proceeding for review is
being prosecuted in good faith and with respect to which there shall
have been secured a stay of execution pending such appeal or preceding
for review and which Liens do not, or would not, have a Material Adverse
Effect;
(iii) Liens upon Property of the Company to secure debt or other
obligations owing by the Company to the United States, the State of
Vermont or any agencies or instrumentalities of either thereof in
connection with the financing or other furnishing of the respective
property by the respective government, agency or instrumentality and
which liens do not or would not, have a Material Adverse Effect;
(iv) Liens arising by reason of the terms of contracts to which
the Company is a party relative to the joint ownership of generation
and/or transmission facilities and which Liens do not, or would not,
have a Material Adverse Effect; and
(v) any other Liens not in excess of $500,000 in the aggregate.
8.3 Mergers and Consolidations. Except with the prior written
consent of the Majority Banks, consolidate with or merge into any other
Person.
8.4 Sale of Property. Except with the prior written consent of
the Majority Banks, sell, lease or otherwise dispose of any significant
part of its Property (including, without limitation, the right to
receive income), except (i) in the ordinary course of business and (ii)
obsolete or worn out Property which is no longer used or useful to the
Company.
8.5 Dividends; Distributions. Declare or pay any dividends
(other than dividends payable in shares of common stock of the Company)
on, or make any other distribution in respect of, any shares of any
class of capital stock of the Company, or apply any of its property or
assets to, or set aside any sum for, the payment, purchase, redemption
or other acquisition or retirement of, any shares of any class of
capital stock of the Company, if, after giving effect to such dividend
or other distribution, the result of such dividend or other distribution
would have a Material Adverse Effect.
8.6 Guaranties. Except as set forth in the Financial Statements,
the Company shall not guarantee, endorse or otherwise in any way become
or be responsible for obligations of any other Person (including without
limitation any officer, director, employee or stockholder of the
Company) in excess of $500,000 in the aggregate, whether by agreement to
purchase the indebtedness of any other Person or through the purchase of
goods, supplies or services, or maintenance of working capital or other
balance sheet covenants or conditions, or by way of stock purchase,
capital contribution, advance or loan for the purpose of paying or
discharging any indebtedness or obligation of such other Person or
otherwise, unless the same is permitted or allowed in connection with
the provisions of the First Mortgage Bonds specifically relating to the
same, which provisions are incorporated by reference herein as if fully
set forth herein.
8.7 Amendment of Charter or By-Laws. The Company shall not amend
its Charter or By-Laws or change its fiscal year end if the result of
any such amendment or change in its fiscal year end would adversely
affect or otherwise impair the rights and remedies of the Banks
hereunder or under any other Loan Document.
8.8 Funded Debt to Capitalization Test. Permit the total amount
of Funded Debt to exceed fifty-five percent (55%) of Total
Capitalization.
8.9 First Mortgage Bonds. Except with the consent of all of the
Banks, issue any additional First Mortgage Bonds not issued as of April
13, 1998 unless all of the proceeds (net of underwriting discounts and
commissions and all other reasonable costs associated with such
transaction) of such additional First Mortgage Bonds shall be used to
pay down any then-outstanding Loans and permanently reduce the Aggregate
Commitments in accordance with Section 2.5 hereof, excluding, however
the requirements of Section 2.5(a)(i) in connection with any such
reduction.
9. EVENTS OF DEFAULT. The following shall each constitute an Event of
Default hereunder:
(a) the failure of the Company to pay any amounts (i) of
principal due hereunder or under the Notes when such amounts are due or
declared due, or (ii) any other amounts, including interest and fees,
due hereunder or under the Notes within five (5) Business Days after
such amounts are due or declared due, in any case whether at stated
maturity by acceleration or otherwise;
(b) the failure of the Company to observe or perform any covenant
or agreement contained in paragraph 8 and, with respect to paragraph 8.2
only, such failure shall have continued unremedied for a period of five
(5) Business Days after the Company knows, or should have known, of such
default; or
(c) the failure of the Company to observe or perform any other
term, covenant, or agreement contained in this Agreement and such
failure shall have continued unremedied for a period of 10 days after
written notice, specifying such failure and requiring it to be remedied,
shall have been given to the Company by the Agent; or
(d) any material representation or warranty made herein or in any
certificate, report, or notice delivered or to be delivered by the
Company pursuant hereto, shall prove to have been incorrect in any
material respect when made; or
(e) if the Company shall default (as principal or guarantor,
surety or other obligor) in the payment of any principal of, or premium,
if any, or interest on any Funded Debt in excess of $1,000,000 (other
than its obligations under this Agreement and the Notes), or with
respect to any of the terms of any evidence of such indebtedness or of
any agreement relating thereto, and such default shall entitle the
holder of such indebtedness to accelerate the maturity thereof, unless,
in the case of any non-payment default, such default has been
affirmatively waived by or on behalf of the holder of such indebtedness;
or
(f) the Company shall (i) make an assignment for the benefit of
creditors, (ii) admit in writing its inability to pay its debts as they
become due or generally fail to pay its debts as they become due, (iii)
file a voluntary petition in bankruptcy, (iv) become insolvent (however
such insolvency shall be evidenced), (v) file any petition or answer
seeking for itself any reorganization, arrangement, composition,
readjustment of debt, liquidation or dissolution or similar relief under
any present or future statute, law or regulation of any jurisdiction,
(vi) petition or apply to any tribunal for any trustee, receiver,
custodian, liquidate or fiscal agent for any substantial part of its
Property, (vii) be the subject of any proceeding referred to in clause
(vi) above or an involuntary bankruptcy petition filed against it which
remains undischarged for a period of 60 days, (viii) file any answer
admitting or not contesting the material allegations of any such
petition filed against it, or of any order, judgment or decree approving
such petition in any such proceeding, (ix) seek, approve, consent to, or
acquiesce in any such proceeding, or in the appointment of any trustee,
receiver, custodian, liquidate, or fiscal agent for it, or any
substantial part of its Property, or an order is entered appointing any
such trustee, receiver, custodian, liquidator or fiscal agent and such
order remains in effect for 60 days, (x) take any formal action for the
purpose of effecting any of the foregoing or looking to the liquidation
or dissolution of the Company or (xi) suspend or discontinue its
business (except as otherwise expressly permitted herein); or
(g) an order for relief is entered under the United States
bankruptcy laws or any other decree or order is entered by a court
having jurisdiction (i) adjudging the Company a bankrupt or insolvent,
or (ii) approving as properly filed a petition seeking reorganization,
liquidation, arrangement, adjustment or composition of or in respect of
the Company under the United States bankruptcy laws or any other
applicable Federal or state law, or (iii) appointing a trustee,
receiver, custodian, liquidator, or fiscal agent (or other similar
official) of the Company or of any substantial part of its Property, or
(iv) ordering the winding up or liquidation of the affairs of the
Company; or
(h) judgments or decrees against the Company in excess of
$3,000,000 (unless such judgment or decree is insured and the insurer
has admitted liability) or for an aggregate amount in excess of
$6,000,000 (whether or not insured) shall remain unpaid, unstayed on
appeal, undischarged, unbonded or undismissed for a period of 30 days;
or
(i) any fact or circumstance, including any Reportable Event as
defined in Title IV of ERISA, at a time when there exists an
underfunding of the Plan in an amount in excess of $500,000, which
constitutes grounds for the termination of any Plan by the PBGC or for
the appointment of a trustee to administer any Plan, shall have occurred
and be continuing for a period of 30 days; or
(j) the occurrence of a Material Adverse Change; or
(k) the occurrence of any Event of Default (other than an Event
of Default which is waived by the party or parties entitled to take
remedial action upon the occurrence of such Event of Default) under any
of the Loan Documents, or any other document or instrument evidencing,
securing or relating to the liabilities or obligations of the Company to
the Banks hereunder or thereunder; or
(l) if, based upon the Full Property Search Summary, the lien of
the Mortgage is neither a first nor second priority lien and it is the
reasonable opinion of the Banks that such subordinate priority could
have a material adverse effect on the Banks' ability to realize value
from the Mortgaged Property in an amount at least equal to the Aggregate
Commitments.
Upon the occurrence and during the continuance of an Event of
Default under this paragraph 9, the Agent, upon the request of the
Majority Banks, shall notify the Company that the Commitments have been
terminated and that the Notes, all accrued interest thereon and all
other amounts owing under this Agreement are immediately due and
payable, provided that upon the occurrence of an event specified in
paragraphs 9(f) or 9(g), the Commitments shall automatically terminate
and the Notes (with accrued interest thereon) and all other amounts
owing under this Agreement shall become immediately due and payable
without notice to the Company. Except for any notice expressly provided
for in this paragraph 9, the Company hereby expressly waives any
presentment, demand, protest, notice of protest or other notice of any
kind. The Company hereby further expressly waives and covenants not to
assert any appeasement, valuation, stay, extension, redemption or
similar laws, now or at any time hereafter in force which might delay,
prevent or otherwise impede the performance or enforcement of this
Agreement or the Notes.
In the event that the unpaid principal balance of the Notes, all
accrued interest thereon and all other amounts owing under this
Agreement shall have been declared due and payable pursuant to the
provisions of this paragraph 9, the Agent may, and, upon (i) the request
of the Majority Banks and (ii) the providing by all of the Banks to the
Agent of an indemnity in form and substance satisfactory to the Agent in
accordance with paragraph 10.3 against all expenses and liabilities
shall, proceed to enforce the rights of the holders of the Notes and the
Mortgageby suit in equity, action at law and/or other appropriate
proceedings, whether for payment or the specific performance of any
covenant or agreement contained in this Agreement, the Notes or the
Mortgage. The Agent shall be justified in failing or refusing to take
any action hereunder, under the Notes and under the Mortgage unless it
shall be indemnified to its satisfaction by the Banks pro rata according
to the aggregate outstanding principal balance of the Notes against any
and all liabilities and expenses which may be incurred by it by reason
of taking or continuing to take any such action. In the event that the
Agent, having been so indemnified, or not being indemnified to its
satisfaction, shall fail or refuse so to proceed, any Bank shall be
entitled to take such action as it shall deem appropriate to enforce its
rights hereunder, under its Notes and under the Mortgage, with the
consent of the Banks, it being understood and intended that no one or
more of the holders of the Notes shall have any right to enforce payment
thereof except as provided in this paragraph 9 and in paragraph 12.
If an Event of Default shall have occurred and shall be continuing,
the Agent may, and at the request of the Majority Banks shall, notify
the Company (by telephone or otherwise) that all or such lesser amount
as the Majority Banks shall designate of the outstanding Eurodollar Rate
Loans automatically shall be converted to Alternate Base Rate Loans, in
which event such Eurodollar Rate Loans automatically shall be converted
to Alternate Base Rate Loans on the date such notice is given. If such
notice is given, notwithstanding anything in paragraph 2.7 to the
contrary, no Alternate Base Rate Loan may be converted to a Eurodollar
Rate Loan if an Event of Default has occurred and is continuing at the
time the Company shall notify the Agent of its election to so convert.
10. THE AGENT. The Banks and the Agent agree by and among themselves
that:
10.1 Appointment. FNB is hereby irrevocably designated the Agent
by each of the other Banks to perform such duties on behalf of the other
Banks and itself, and to have such powers, as are set forth herein and
as are reasonably incidental thereto.
10.2 Delegation of Duties, Etc. The Agent may execute any duties
and perform any powers hereunder by or through agents or employees, and
shall be entitled to consult with legal counsel and any accountant or
other professional selected by it. Any action taken or omitted to be
taken or suffered in good faith by the Agent in accordance with the
opinion of such counsel or accountant or other professional shall be
full justification and protection to the Agent.
10.3 Indemnification. The Banks agree to indemnify the Agent in
its capacity as such, to the extent not reimbursed by the Company, pro
rata according to their respective Commitments as of the Effective Date,
from and against any and all claims, liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against the Agent in any way relating to or
arising out of this Agreement or the Notes or any action taken or
omitted to be taken or suffered in good faith by the Agent hereunder or
thereunder, provided that no Bank shall be liable for any portion of any
of the foregoing items resulting from the gross negligence or willful
misconduct of the Agent. Without limitation of the foregoing, each Bank
agrees to reimburse the Agent promptly for its pro-rata share of any
reasonable out-of-pocket expenses (including counsel fees) incurred by
the Agent in connection with the preparation, execution, administration
or enforcement of, or legal advice in respect of rights or
responsibilities under, this Agreement and the Notes, to the extent that
the Agent, having sought reimbursement for such expenses from the
Company, is not promptly reimbursed by the Company. Any reference
herein and in any document executed in connection herewith, to the Banks
providing an indemnity in form and substance satisfactory to the Agent
prior to the Agent taking any action hereunder shall be satisfied by the
Banks executing an agreement confirming their agreement to promptly
indemnify the Agent in accordance with this paragraph 10.3.
10.4 Exculpatory Provisions. Neither Agent, nor any of its
officers, directors, employees or agents, shall be liable for any action
taken or omitted to be taken or suffered by it or them hereunder or
under the Notes, or in connection herewith or therewith, including
without limitation any action taken or omitted to be taken in connection
with any telephonic communication pursuant to paragraph 2.3 hereof,
except that the Agent shall be liable for its own gross negligence or
willful misconduct. The Agent shall not be liable in any manner for the
effectiveness, enforceability, collectibility, genuineness, validity or
the due execution of this Agreement or the Notes, or for the due
authorization, authenticity or accuracy of the representations and
warranties contained herein or in any other certificate, report, notice,
consent, opinion, statement, or other document furnished or to be
furnished hereunder, and the Agent shall be entitled to rely upon any of
the foregoing believed by it to be genuine and correct and to have been
signed and sent or made by the proper Person. The Agent shall not be
under any duty or responsibility to any Bank to ascertain or to inquire
into the performance or observance by the Company or any Subsidiary of
any of the provisions hereof or of the Notes or of any document executed
and delivered in connection herewith or therewith. Each other Bank
expressly acknowledges that the Agent has not made any representations
or warranties to it and that no act taken by the Agent shall be deemed
to constitute any representation or warranty by the Agent to any other
Bank. Each Bank acknowledges that it has taken and will continue to
take such action and has made and will continue to make such
investigation as it deems necessary to inform itself of the affairs of
the Company and each Subsidiary, and each Bank acknowledges that it has
made and will continue to make its own independent investigation of the
creditworthiness and the business and operations of the Company and its
Subsidiaries, and that, in entering into this Agreement, and in agreeing
to make its Loans, it has not relied and will not rely upon any
information or representations furnished or given by the Agent or any
other Bank.
10.5 Agent in its Individual Capacity. With respect to its Loans
and any renewals, extensions or deferrals of the payment thereof and any
Note issued to or held by it, the Agent shall have the same rights and
powers hereunder as any Bank, and may exercise the same as though it
were not the Agent, and the term "Bank" or "Banks" shall, unless the
context otherwise requires, include the Agent in its individual
capacity. FNB and its affiliates may accept deposits from, lend money
to, act as trustee or other fiduciary in connection with transactions
involving, and otherwise engage in any business with the Company and its
affiliates and any Person who may do business with or own securities of
the Company or any affiliate of the Company, all as if FNB were not the
Agent hereunder and without any obligation to account or report therefor
to any Bank.
10.6 Knowledge of Default. It is expressly understood and agreed
that the Agent shall be entitled to assume that no Event of Default has
occurred and is continuing, unless the officers of the Agent who are
responsible for matters concerning this Agreement shall have actual
knowledge of such occurrence or shall have been notified in writing by a
Bank that such Bank considers that an Event of Default has occurred and
is continuing and specifying the nature thereof.
In the event the Agent shall have acquired actual knowledge of any
Event of Default, it shall promptly give notice thereof to the Banks.
10.7 Resignation of Agent. If at any time the Agent deems it
advisable, in its sole discretion, it may submit to each of the Banks a
written notification of its resignation as Agent under this Agreement,
such resignation to be effective on the earlier to occur of (a) the
forty-fifth (45th) day after the date of such notice or (b) the date
upon which a successor Agent accepts its appointment as successor Agent.
If the Agent resigns hereunder, the Company shall have the right to
appoint, with the prior written approval of the Banks, which approval
shall not be unreasonably withheld, a successor Agent hereunder,
provided, however that upon the occurrence and during the continuance of
an Event of Default, the Banks shall have the right to appoint such
successor Agent hereunder. The successor Agent shall be a commercial
bank or other financial institution organized under the laws of the
United States of America or of any State thereof and having a combined
capital and surplus of at least $100,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor
Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the Agent hereunder, and the retiring
Agent shall be discharged from any further duties and obligations under
this Agreement. The Company and the Banks agree to execute such
documents as shall be necessary to effect such appointment. After the
retiring Agent's resignation or removal hereunder, the provisions of
this paragraph 10 shall inure to its benefit as to any actions taken or
omitted to be taken by it while the Agent under this Agreement. If at
any time hereunder there shall not be a duly appointed and acting Agent,
the Company agrees to make each payment due hereunder and under the
Notes directly to the Banks entitled thereto.
10.8 Requests to the Agent. Whenever the Agent is authorized and
empowered hereunder on behalf of the Banks to give any approval or
consent, or to make any request, or to take any other action on behalf
of the Banks, the Agent shall be required to give such approval or
consent, or to make such request or to take such other action only when
so requested in writing by the Majority Banks subject, however, to the
provisions of paragraph 13.
11. NOTICES.
11.1 Manner of Delivery. Except as otherwise specifically
provided herein, all notices and demands shall be in writing and shall
be mailed by certified mail return receipt requested or sent by
telegram, telecopy or telex or delivered in person, and all statements,
reports, documents, consents, waivers, certificates and other papers
required to be delivered hereunder shall be mailed by first-class mail
or delivered in person, in each case to the respective parties to this
Agreement as follows:
if to the Company, to:
Green Mountain Power Corporation
25 Green Mountain Drive
South Burlington, Vermont 05403
Attention: John J. Lampron
Telephone: (802) 864-5731
Telecopy: (802) 865-9974
with a copy to:
Michael G. Furlong, Esq.
Sheehey Brue Gray & Furlong P.C.
30 Main Street
P.O. Box 66
Burlington, Vermont 05402
Telephone: (802) 864-9891
Telecopy: (802) 864-6815
if to the Agent, to:
Fleet National Bank
One Federal Street
Boston, Massachusetts 02211
Attention: Robert Lanigan, Director
Telephone: (617) 346-0576
Telecopy: (617) 346-0580
with a copy to:
Peter S. Johnson, Esq.
Gadsby & Hannah LLP
225 Franklin Street
Boston, MA 02110
Telephone: (617) 345-7052
Telecopy: (617) 345-7050
if to the Banks, to:
Fleet National Bank
One Federal Street
Boston, Massachusetts 02211
Attention: Robert Lanigan, Director
Telephone: (617) 346-0576
Telecopy: (617) 346-0580
with a copy to:
Peter S. Johnson, Esq.
Gadsby & Hannah LLP
225 Franklin Street
Boston, MA 02110
Telephone: (617) 345-7052
Telecopy: (617) 345-7050
The Bank of Nova Scotia
28 State Street
Boston, MA 02109
Attention: Stephen Foley, Relationship Manager
Telephone: (617) 624-7612
Telecopy: (617) 624-7607
State Street Bank and Trust Company
225 Franklin Street
Boston, MA 02110
Attention: Lise Anne Boutiette, Vice President
Telephone: (617) 664-3262
Telecopy: (617) 664-6527
or to such other Person or address as a party hereto shall designate to
the other parties hereto from time to time in writing forwarded in like
manner. Any notice or demand given in accordance with the provisions of
this paragraph 11.1 shall be effective when received and any consent,
waiver or other communication given in accordance with the provisions of
this paragraph 11.1 shall be conclusively deemed to have been received
by a party hereto and to be effective on the day on which delivered to
such party at its address specified above or, if sent by first class
mail, on the third Business Day after the day when deposited in the
mail, postage prepaid, and addressed to such party at such address,
provided that a notice of change of address shall be deemed to be
effective when actually received.
11.2 Distribution of Copies. Whenever the Company is required to
deliver any statement, report, document, certificate or other paper
(other than Borrowing Request or a notice to convert under paragraph
2.7) to the Agent, the Company shall simultaneously deliver a copy
thereof to each Bank.
11.3 Notices by the Agent or a Bank. In the event that the Agent
or any Bank takes any action or gives any consent or notice provided for
by this Agreement, notice of such action, consent or notice shall be
given forthwith to all the Banks by the Agent or the Bank taking such
action or giving such consent or notice, provided that the failure to
give any such notice shall not invalidate any such action, consent or
notice in respect of the Company.
12. RIGHT OF SET-OFF. Regardless of the adequacy of any collateral,
upon the occurrence and during the continuance of any Event of Default,
each Bank is hereby expressly and irrevocably authorized by the Company
at any time and from time to time, without notice to the Company, to
set-off, appropriate, and apply all moneys, securities and other
Property and the proceeds thereof now or hereafter held or received by
or in transit to such Bank from or for the account of the Company,
whether for safekeeping, pledge, transmission, collection or otherwise,
and also upon any and all deposits (general and special), account
balances and credits of the Company with such Bank at any time existing
against any and all obligations of the Company to the Banks and to each
of them arising under this Agreement and the Notes, and the Company
shall continue to be liable to each Bank for any deficiency with
interest at the rate or rates set forth in subparagraph 2.8(b). Each of
the Banks agrees with each other Bank that (a) if an amount to be set
off is to be applied to any obligations of the Company to such Bank,
other than obligations evidenced by the Notes held by such Bank, such
amount shall be applied ratably to such other obligations and to the
obligations evidenced by all such Notes held by such Bank and (b) if
such Bank shall receive from the Company, whether by voluntary payment,
exercise of the right of setoff, counterclaim, cross action, enforcement
of the claim evidenced by the Notes held by such Bank by proceedings
against the Company at law or in equity or by proof thereof in
bankruptcy, reorganization, liquidation, receivership or similar
proceedings, or otherwise, and shall retain and apply to the payment of
the Note or Notes held by such Bank any amount in excess of its ratable
portion of the payments received by all of the Banks with respect to the
Notes held by all of the Banks, such Bank will make such disposition and
arrangements with the other Banks with respect to such excess, either by
way of distribution, pro tanto assignment of claims, subrogation or
otherwise as shall result in each Bank receiving in respect of the Notes
held by each Bank, its proportionate payment as contemplated by this
Agreement; provided that if all or any part of such excess payment is
thereafter recovered from such Bank, such disposition and arrangements
shall be rescinded and the amount restored to the extent of such
recovery, but without interest.
13. AMENDMENTS, WAIVERS AND CONSENTS. Except as otherwise expressly
set forth herein, with the written consent of the Majority Banks, the
Agent shall, subject to the provisions of this paragraph 13, from time
to time enter into agreements amendatory or supplemental hereto with the
Company for the purpose of changing any provisions of this Agreement or
the Notes, or changing in any manner the rights of the Banks, the Agent
or the Company hereunder and thereunder, or waiving compliance with any
provision of this Agreement or consenting to the non-compliance thereof.
Notwithstanding the foregoing, the consent of all of the Banks shall be
required with respect to any amendment, waiver or consent (i) changing
the Aggregate Commitments or the Commitment of any Bank, (ii) changing
the maturity of any Loan, or the rate of interest of, time or manner of
payment of interest on or principal of, or the principal amount of any
Loan, or the amount, time or manner of payment of any fees hereunder,
(iii) releasing the lien of the Mortgage or (iv) modifying this
paragraph 13. Any such amendment or supplemental agreement, waiver or
consent shall apply equally to each of the Banks and shall be binding on
the Company and all of the Banks and the Agent. Any waiver or consent
shall be for such period and subject to such conditions or limitations
as shall be specified therein, but no waiver or consent shall extend to
any subsequent or other Event of Default, or impair any right or remedy
consequent thereupon. In the case of any waiver or consent, the rights
of the Company, the Banks and the Agent under this Agreement and the
Notes shall be otherwise unaffected. Nothing contained herein shall be
deemed to require the Agent to obtain the consent of any Bank with
respect to any change in the amount or terms of payment of the Agent's
Fees. The Company shall be entitled to rely upon the provisions of any
such amendatory or supplemental agreement, waiver or consent if it shall
have obtained any of the same in writing from the Agent who therein
shall have represented that such agreement, waiver or consent has been
authorized in accordance with the provisions of this paragraph 13.
14.OTHER PROVISIONS.
14.1 No Waiver of Rights by the Banks. No failure on the part of
the Agent or of any Bank to exercise, and no delay in exercising, any
right or remedy hereunder or under the Notes shall operate as a waiver
thereof, except as provided in paragraph 13, nor shall any single or
partial exercise by the Agent or any Bank of any right, remedy or power
hereunder or under the Notes preclude any other or future exercise
thereof, or the exercise of any other right, remedy or power. The
rights, remedies and powers provided herein and in the Notes are
cumulative and not exclusive of any other rights, remedies or powers
which the Agent or the Banks or any holder of a Note would otherwise
have. Notice to or demand on the Company in any circumstance in which
the terms of this Agreement or the Notes do not require notice or demand
to be given shall not entitle the Company to any other or further notice
or demand in similar or other circumstances or constitute a waiver of
the rights of the Agent or any Bank or the holder of any Note to take
any other or further action in any circumstances without notice or
demand.
14.2 Headings; Plurals. Paragraph and subparagraph headings have
been inserted herein for convenience only and shall not be construed to
be a part of this Agreement. Unless the context otherwise requires,
words in the singular number include the plural, and words in the plural
include the singular.
14.3 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original and all of which
shall constitute one agreement. It shall not be necessary in making
proof of this Agreement or of any document required to be executed and
delivered in connection herewith or therewith to produce or account for
more than one counterpart.
14.4 Severability. Every provision of this Agreement and the
Notes is intended to be severable, and if any term or provision hereof
or thereof shall be invalid, illegal or unenforceable for any reason,
the validity, legality and enforceability of the remaining provisions
hereof or thereof shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not
affect the validity, legality or enforceability of any such term or
provision in any other jurisdiction.
14.5 Integration. All exhibits to this Agreement shall be deemed
to be a part of this Agreement. This Agreement, the exhibits hereto and
the Notes embody the entire agreement and understanding between the
Company, the Agent and the Banks with respect to the subject matter
hereof and thereof and supersede all prior agreements and understandings
between the Company, the Agent and the Banks with respect to the subject
matter hereof and thereof.
14.6 Sales and Participations in Loans and Notes; Successors and
Assigns; Survival of Representations and Warranties.
(a) Each Bank shall have the right with the prior written consent
of the Company (which consent shall not be unreasonably withheld or
delayed), upon written notice to the Agent and the Company to sell,
assign, transfer or negotiate all or any part but not less than
$5,000,000) of the Loans and the Notes and its Commitment to one or more
commercial banks or other financial institutions including, without
limitation, the Banks. In the case of any sale, assignment, transfer or
negotiation of all or any such part of the Loans and the Notes
authorized under this paragraph 14.6(a), the assignee or transferee
shall have, to the extent of such sale, assignment, transfer or
negotiation, the same rights, benefits and obligations as it would if it
were a Bank hereunder and a holder of such Note, including, without
limitation, (x) the right to approve or disapprove of actions which in
accordance with the terms hereof, require the approval of the Majority
Banks and (y) the obligation to fund Loans directly to the Agent
pursuant to paragraph 2.3.
(b) Notwithstanding paragraph 14.6(a), each Bank may grant
participations in all or any part of its Loans and its Notes to one or
more commercial banks, insurance companies or other financial
institutions, pension funds or mutual funds; provided that (i) any such
disposition shall not, without the prior written consent of the Company,
require the Company to file a registration statement with the Securities
and Exchange Commission or apply to qualify the Loans and the Notes
under the blue sky laws of any state and (ii) the holder of any such
participation, other than an Affiliate of such Bank, shall not have any
rights or obligations hereunder and shall not be entitled to require
such Bank to take or omit to take any action hereunder except action
directly affecting the extension of the maturity of any portion of the
principal amount of, or interest on, the Loan allocated to such
participation, or a reduction of the principal amount of, or the rate of
interest payable on, such Loans.
(c) Notwithstanding the foregoing provisions of this paragraph
14.6, each Bank may at any time and from time to time sell, assign,
transfer, or negotiate all or any part of the Loans to any Affiliate of
such Bank; provided that an Affiliate to whom such disposition has been
made shall not be considered a "Bank", and the assigning Bank shall be
considered not to have disposed of any Loans so assigned for purposes of
determining the Majority Banks under any provision hereof, but such
Affiliate shall otherwise be considered a "Bank", and the assigning Bank
shall otherwise be considered to have disposed of any Loans so assigned,
for purposes hereof, including, without limitation, paragraphs 3.1 and
12 hereof.
(d) In addition, notwithstanding anything to the contrary
contained in this paragraph 14.6, any Bank may at any time and from time
to time assign all or any portion of its rights under this Agreement
with respect to its Loans, its Commitments and its Notes to a Federal
Reserve Bank. No such assignment shall release the assignor Bank from
its obligations hereunder.
(e) No Bank shall, as between the Company and such Bank, be
relieved of any of its obligations hereunder as a result of granting
participations in all or any part of the Loans and the Notes of such
Bank or other obligations owed to such Bank.
(f) This Agreement shall be binding upon and inure to the benefit
of the Banks, the Agent and the Company and their respective successors
and assigns. All covenants, agreements, warranties and representations
made herein, and in all certificates or other documents delivered in
connection with this Agreement by or on behalf of the Company shall
survive the execution and delivery hereof and thereof, and all such
covenants, agreements, representations and warranties shall inure to the
respective successors and assigns of the Banks and the Agent whether or
not so expressed.
(g) The Agent shall maintain a copy of each assignment delivered
to it and a register or similar list for the recordation of the names
and addresses of the Banks and the Commitment Percentages of the Banks
and the principal amount of the Loans and the Notes assigned from time
to time. The entries in such register shall be conclusive, in the
absence of manifest error and provided that any required consent of the
Company has been obtained, and the Company, the Agent and the Banks may
treat each Person whose name is recorded in such register as a Bank
hereunder for all purposes of this Agreement. Upon each such
recordation, the assigning Bank agrees to pay to the Agent a
registration fee in the sum of Two Thousand Five Hundred Dollars
($2,500).
14.7 Applicable Law. This Agreement and the Notes are being
delivered in and are intended to be performed in The Commonwealth of
Massachusetts and shall be construed and enforceable in accordance with,
and be governed by, the internal laws of The Commonwealth of
Massachusetts without regard to its principles of conflict of laws.
14.8 Interest. At no time shall the interest rate payable on the
Notes, together with the Facility Fee and the Agent's Fees, to the
extent same are construed to constitute interest, exceed the maximum
rate of interest permitted by law. The Company acknowledges that to the
extent interest payable on the Notes is based on the Alternate Base
Rate, such Rate is only one of the bases for computing interest on loans
made by the Banks, and by basing interest payable on the Notes on the
Alternate Base Rate, the Banks have not committed to charge, and the
Company has not in any way bargained for, interest based on a lower or
the lowest rate at which the Banks may now or in the future make loans
to other borrowers.
14.9 Accounting Terms and Principles. All accounting terms not
herein defined by being capitalized shall be interpreted in accordance
with GAAP, unless the context otherwise expressly requires.
14.10 WAIVER OF TRIAL BY JURY. THE COMPANY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE FULLEST EXTENT PERMITTED OR
NOT PROHIBITED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION
WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREIN.
FURTHER, THE COMPANY HEREBY ACKNOWLEDGES THAT NO REPRESENTATIVE OF THE
AGENT OR THE BANKS OR COUNSEL TO THE AGENT OR THE BANKS HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE AGENT OR THE BANKS WOULD NOT, IN THE
EVENT OF SUCH LITIGATION, SEEK TO ENFORCE SUCH WAIVER. THE COMPANY
ACKNOWLEDGES THAT THE AGENT AND THE BANKS HAVE BEEN INDUCED TO ENTER
INTO THE LOAN DOCUMENTS BY, INTER ALIA, THE PROVISIONS OF THIS
PARAGRAPH.
14.11 CONSENT TO JURISDICTION. THE COMPANY HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY COURT OF THE COMMONWEALTH OF
MASSACHUSETTS OR ANY FEDERAL COURT SITTING IN THE COMMONWEALTH OF
MASSACHUSETTS OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THE LOAN DOCUMENTS. THE COMPANY HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED OR NOT PROHIBITED BY APPLICABLE LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE
OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH A
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE COMPANY HEREBY
AGREES THAT A FINAL JUDGMENT IN ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH A COURT, AFTER ALL APPROPRIATE APPEALS, SHALL BE
CONCLUSIVE AND BINDING UPON IT.
14.12 SERVICE OF PROCESS. PROCESS MAY BE SERVED IN ANY SUIT,
ACTION, COUNTERCLAIM OR PROCEEDING OF THE NATURE REFERRED TO IN
PARAGRAPH 14.11 BY MAILING COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED, TO THE ADDRESS OF THE
COMPANY SET FORTH IN PARAGRAPH 11.1 OR TO ANY OTHER ADDRESS OF WHICH THE
COMPANY SHALL HAVE GIVEN WRITTEN NOTICE TO THE AGENT. THE COMPANY
HEREBY AGREES THAT SUCH SERVICE (I) SHALL BE DEEMED IN EVERY RESPECT
EFFECTIVE SERVICE OF PROCESS UPON IT IN ANY SUCH SUIT, ACTION,
COUNTERCLAIM OR PROCEEDING, AND (II) SHALL TO THE FULLEST EXTENT
PERMITTED OR NOT PROHIBITED BY APPLICABLE LAW, BE TAKEN AND HELD TO BE
VALID PERSONAL SERVICE UPON AND PERSONAL DELIVERY TO IT.
14.13 NO LIMITATION ON SERVICE OR SUIT. NOTHING IN THE LOAN
DOCUMENTS, OR ANY MODIFICATION, WAIVER, OR AMENDMENT THERETO, SHALL
AFFECT THE RIGHT OF THE AGENT OR ANY BANK TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR LIMIT THE RIGHT OF THE AGENT OR ANY BANK TO
BRING PROCEEDINGS AGAINST THE COMPANY IN THE COURTS OF ANY OTHER
JURISDICTION OR JURISDICTIONS.
15. OTHER OBLIGATIONS OF THE COMPANY.
15.1 Taxes and Fees. Should any tax (other than a tax based upon
the net income of any Bank), recording or filing fee become payable in
respect of this Agreement or the Notes or any amendment, modification or
supplement hereof or thereof, the Company agrees to pay the same
together with any interest or penalties thereon and agrees to hold the
Agent and the Banks harmless with respect thereto.
15.2 Expenses. Whether or not the transactions contemplated by
this Agreement shall be consummated, the Company agrees to pay the
reasonable out-of-pocket expenses of the Agent (including the reasonable
fees and expenses of counsel to the Agent and, without limitation,
Special Counsel) in connection with the preparation, reproduction,
execution and delivery of this Agreement and the Notes and the other
exhibits annexed hereto (in such case, with respect to the Special
Counsel, in accordance with the letter previously delivered to the
Company by the Special Counsel) and any modifications, waivers, consents
or amendments hereto and thereto, and the Company further agrees to pay
the reasonable out-of-pocket expenses of the Agent and the Banks
(including the reasonable fees and expenses of their respective counsel)
incurred in connection with the interpretation and enforcement of any
provision of this Agreement or collection under the Notes, whether or
not suit is instituted.
16. EFFECTIVE DATE. This Agreement shall be effective as of the date
first set forth above (the "Effective Date").
# # #
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed as of the date first written above.
GREEN MOUNTAIN POWER CORPORATION
By:_____________________________
Title:
Domestic Lending Office: FLEET NATIONAL BANK,
Office listed in paragraph 11.1 Individually and as Agent
Eurodollar Lending Office:
Office listed in paragraph 11.1
By:_____________________________
Title:
Domestic Lending Office: THE BANK OF NOVA SCOTIA
Office listed in paragraph 11.1
Eurodollar Lending Office: By:____________________________
Office listed in paragraph 11.1 Title:
Domestic Lending Office: STATE STREET BANK AND TRUST COMPANY
Office listed in paragraph 11.1
Eurodollar Lending Office: By:______________________________
Office listed in paragraph 11.1
Title:
SCHEDULE A
DISCLOSURE SCHEDULE
1. On March 16, 1998, Green Mountain Propane Gas Company sold
substantially all of its assets to VGS Propane LLC.
2. In May, 1998, the Company reached tentative agreements with the
United States Environmental Protection Agency (EPA), the United
States Department of Interior (DOI), the United States Department
of Justice, and the State of Vermont concerning resolution of all
past and future governmental monetary claims against the Company
and other settling parties concerning the Pine Street Canal
Superfund site, including claims for past costs and interest,
natural resource damages, and future oversight costs. In May, the
Company and other members of the Pine Street Canal Coordinating
Council, including EPA, DOI, the State, the City of Burlington, and
"Community Wedge" representatives, including the Lake Champlain
Committee, unanimously recommended a proposed remedy for the Site,
which the EPA formally proposed for public comment. The proposed
remedy includes: placement of an underwater cap over canal
sediments in certain areas; coverage of certain areas of
contaminated soil; improvements to management of storm water
entering the site; land use restrictions to assure protection of
public health; and long-term monitoring of the site to ensure the
effectiveness of the cap and that contamination is not migrating
off site, especially to Lake Champlain. The Company also
simultaneously entered into a Pledge and Agreement with members of
the Community Wedge to find several additional environmental
improvement projects in the community near the site. Final
agreement with the United States and State on monetary claims is
conditioned on EPA adoption of the recommended remedy, agreement by
the Company to undertake the remedy, and final approval by
governmental authorities. The Company has entered into various
agreements with other potentially responsible parties for sharing
of the costs of the recent round of agreements.
3. On February 27, 1998, the Vermont Public Service Board issued an
Order in Docket No. 5983, in which it denied the Company's request
for a rate increase of 16.72% and authorized the Company to
increase its rates by 3.61%.
4. On April 20, 1998, the Company filed a petition with the Vermont
Public Service Board seeking an amendment to the Board's Order
dated December 8, 1997 involving an amendment to this Agreement and
seeking the VPSB's consent to grant a second priority mortgage,
lien and security interest in connection therewith. On June 3,
1998, the Vermont Public Service Board issued an Order in Docket
No. 6015 approving the amendments contained in this Agreement and
the granting of such mortgage, lien and security interest.
5. On June 8, 1998, the Vermont Public Service Board issued an Order
in Docket No. 5983, in response to the Company's Motion to
Reconsider, in which it granted certain requests of the Company to
revise and restate certain aspects of the Order in this Docket
issued on February 27, 1998, to clarify the financial and
accounting consequences of that Order, but in which it refused to
grant the Company any further rate increase.
6. On June 22, 1998, the Company filed a Notice of Appeal of the
Vermont Public Service Board's Order in Docket No. 5983 with the
Vermont Supreme Court.
7. On May 8, 1998, the Company filed revised tariffs with the Vermont
Public Service Board requesting an increase in its retail rates in
the amount of 12.9%, equivalent to an increase of about $20.8
million. On June 15, 1998, the Vermont Public Service Board
suspended the tariff until a final investigation into the justness
and reasonableness of the Company's rates is concluded.
EXHIBIT A
COMMITMENT
BANK TOTAL COMMITMENT
COMMITMENT PERCENTAGE
THE BANK OF NOVA SCOTIA $15,000,000 33 1/3%
STATE STREET BANK AND $15,000,000 33 1/3%
TRUST COMPANY
FLEET NATIONAL BANK $15,000,000 33 1/3%
AGGREGATE COMMITMENTS $45,000,000 100%
EXHIBIT B
SCHEDULE I
Green Mountain Power Corporation Pricing Grid*
Pricing Senior Secured LIBOR LIBOR Facility All-in-LIBOR All-in LIBOR
Level Rating Margin**1 Margin**2 Fee** Cost**1 Cost**2
I >=A-/A3 or better 26.5 51.6 8.5 35.0 60.0
II =BBB+/Baa1 50.0 75.0 15.0 65.0 90.0
II =BBB/Baa2 60.0 85.0 17.5 77.5 102.5
IV =BBB-/Baa3 80.0 105.0 20.0 100.0 125.0
V =BBB-/Baa3 100.0 125.0 25.0 125.0 150.0
* The applicable pricing level will be based upon the S&P and Moody's
ratings for senior secured debt, unless one or more of the applicable
rating agencies uses a "corporate credit rating," in which case the
corporate credit rating will be used. In the event of a split rating,
the higher of the two ratings will apply. In the event of a split by
more than one level, the level above the lowest will apply.
** Expressed as basis points.
1 On outstanding principal balance of all Loans of $22,500,000 or less.
2 On outstanding principal balance of all Loans in excess of
$22,500,000. (The LIBOR margin in excess of the LIBOR margin set forth
in Footnote 1 above and the accompanying table represents the Usage
Fee).
EXHIBIT C
FORM OF BORROWING REQUEST
, 19 _
Fleet National Bank
One Federal Street
Boston, Massachusetts 02211
Attention: Melanie Bolster
Telephone: (617) 346-0627
Telecopy: (617) 346-0595
Re: Amended and Restated Credit Agreement dated as of , 1998
by and among Green Mountain Power Corporation, the signatory Banks
thereto and Fleet National Bank, as Agent (the "Agreement")
Capitalized terms used herein which are defined in the Agreement
shall have the meanings therein defined.
Pursuant to paragraph 2.1 of the Agreement, the Company hereby
gives notice of its intention to effect a Borrowing in the amount of $
on , 19 _ .
Pursuant to paragraph 2.3 of the Agreement, the Company has elected
to have the following portions of such Borrowing be subject to the Type
and Interest Period(s) set forth below:
Interest
Type Amount Period
1.
2.
3.
4.
5.
The Company hereby certifies that on the date hereof and on the
Borrowing Date set forth above, and after giving effect to the Loans to
be made on such Borrowing Date:
(a) The Company is and shall be in compliance with all of
the terms, covenants and conditions of the Agreement.
(b) There exists and there shall exist no Event of Default
under the Agreement.
(c) The Company represents, warrants and covenants that the
proceeds of such Loans will be used in accordance with paragraph 2.13 of
the Agreement.
(d) The Company represents and warrants that each of the
material representations and warranties contained in the Agreement is
and shall be true and correct in all material respects with the same
force and effect as if made on and as of the date hereof and as of the
Borrowing Date, except such representations and warranties as
specifically refer to an earlier date.
(e) No event has occurred or failed to occur, that has had
or would reasonably be expected to have, either alone or in conjunction
with all other such events and failures, a Material Adverse Effect since
the date of the last Borrowing Date.
The Company hereby certifies that on the date hereof the Debt
Rating of the Company is _______ according to Standard & Poor's
Corporation and _______ according to Moody's Investor Service.
IN WITNESS WHEREOF, the undersigned has caused this Borrowing
Request and certification to be executed as of the date and year first
above written.
GREEN MOUNTAIN POWER CORPORATION
By:___________________________________
Title:________________________________
EXHIBIT D
FORM OF REVOLVING CREDIT NOTES
Boston, Massachusetts
__________, 19__
For value received, GREEN MOUNTAIN POWER CORPORATION, a Vermont
corporation ("Company"), hereby promises to pay to the order of _______
(the "Bank") at the offices of FLEET NATIONAL BANK (the "Agent"), One
Federal Street, Boston, Massachusetts, in lawful money of the United
Sates of America, the principal amount of each Loan made by the Bank to
the Company pursuant to the Amended and Restated Credit Agreement, dated
as of _______, 1998, by and among the Company, the signatory Banks
thereto and the Agent (as the same may be amended from time to time the
"Agreement"), on the Termination Date, together with interest on the
unpaid principal amount of each Loan, from the date of each Loan until
such principal amount is paid in full, at such interest rates, and
payable at such times, as is provided or determined under the Agreement.
In no event shall the interest rate payable hereon exceed the maximum
rate of interest permitted by law. Capitalized terms used herein which
are defined in the Agreement shall have the meanings therein defined.
The principal amount of each Loan made by the Bank to the Company,
and all prepayments made on account of such principal, by the Company
shall be recorded by the Bank on the schedule attached hereto. The
aggregate unpaid principal balance of all Loans made by the Bank and set
forth in such schedule shall be presumptive evidence of the principal
balance owing and unpaid on this Note. The Bank may attach one or more
continuations to such schedule as and when required.
This Note is one of the Notes referred to in the Agreement and is
entitled to the benefits of, and is subject to the terms, set forth in
the Agreement. The principal of this Note is prepayable in the amounts
and under the circumstances, and its maturity is subject to acceleration
upon the terms, set forth in the Agreement. All payments on this Note
shall be made in funds immediately available in Boston, Massachusetts,
by 12:00 noon, Boston time, on the due date for such payment. Except as
otherwise expressly provided in the Agreement, if any payment on this
Note becomes due and payable on a day which is not a Business Day, the
maturity thereof shall be extended to the next Business Day and interest
shall be payable at the rate or rates specified in the Agreement during
such extension period.
Presentment for payment, demand, notice of dishonor, protest,
notice of protest and all other demands and notices in connection with
the delivery, performance and enforcement of this Note are hereby
waived, except as specifically otherwise provided in paragraph 9 of the
Agreement.
This Note is being delivered in, is intended to be performed in,
shall be construed and enforceable in accordance with, and be governed
by the internal laws of, the Commonwealth of Massachusetts without
regard to principles of conflict of laws.
This Note may be amended only by an instrument in writing executed
pursuant to the provisions of paragraph 13 of the Agreement.
GREEN MOUNTAIN POWER CORPORATION
By:___________________________________
Title:________________________________
GRID
REVOLVING CREDIT NOTE
Amount Amount of Notation
Date of Loan Principal Repaid Made By
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
EXHIBIT E
FORM OF COMMITMENT EXTENSION REQUEST
________, 19__
To each of the Banks party
to the Credit Agreement
hereinafter referred to
Fleet National Bank
One Federal Street
Boston, Massachusetts 02211
Attention: Robert Lanigan, Director
Re: Amended and Restated Credit Agreement dated as of _____, 1998
This Commitment Extension Request is made pursuant to paragraph
2.15 of the Amended and Restated Credit Agreement, dated as of
___________, 1998 (as from time to time amended, modified or
supplemented, the "Agreement"), among Green Mountain Power Corporation
(the "Company"), the signatory Banks thereto ("Banks") and Fleet
National Bank, as Agent (the "Agent"). Terms used herein shall have the
meanings assigned to such terms in the Agreement.
In accordance with paragraph 2.15 of the Agreement, the Company
hereby requests that your Bank consent to an extension of the
Termination Date to .
Please indicate your Bank's consent to such extension by signing
the enclosed copy of this letter in the space provided below and
returning it to the Agent. By signing and returning this letter to the
Agent, each Bank agrees that the Agent may amend the Agreement and any
other Loan Document to the extent necessary to effectuate the extension
consented to hereby without the necessity of obtaining such Bank's
signature (other than the signature provided hereby).
Very truly yours,
GREEN MOUNTAIN POWER CORPORATION
By:______________________________
Title:
CONSENTED TO:
[Name of Bank]
By:__________________________________
Title:_______________________________
EXHIBIT F
SUBSIDIARIES
Name of Subsidiary State of Incorporation
GMP Real Estate Corporation Vermont
Green Mountain Resources, Inc. Delaware
Lease-Elec, Inc. Vermont
Mountain Energy, Inc. Vermont
Vermont Energy Resources, Inc. Vermont
EXHIBIT G-1
FORM OF OPINION OF COUNSEL TO THE COMPANY
See attached.
SCHEDULE A
to Exhibit G
The Bank of Nova Scotia
State Street Bank and Trust Company
Fleet National Bank
EXHIBIT G-2
FORM OF OPINION OF GENERAL COUNSEL OF THE COMPANY
See attached.
Execution Copy
ENVIRONMENTAL INDEMNITY
ENVIRONMENTAL INDENITY dated as of August 17, 1998, made by Green
Mountain Power Corporation, a Vermont corporation (the "Indemnitor") to
Fleet National Bank, as Agent (the "Agent") pursuant to the Amended and
Restated Credit Agreement (the "Credit Agreement") dated as of the date
hereof by and among the Indemnitor, the Agent and the Signatory Banks
thereto (the "Signatory Banks") (the Agent and the Signatory Banks are
each an "Indemnitee" and collectively the "Indemnitees").
W I T N E S S E T H
WHEREAS, the Indemnitor is the owner of certain real property
located in Vermont (the "Land"), together with the buildings, structures
and other improvements located or to be located thereon (the
"Improvements"; the Land and the Improvements are more specifically
described in the Mortgage and Security Agreement (the "Mortgage") dated
as of the date hereof and executed by the Indemnitor in favor of the
Agent); and
WHEREAS, the Indemnitor and the Indemnitees are parties to a Credit
Agreement dated as of August 12, 1997 (the "1997 Credit Agreement);
WHEREAS, the Indemnitor desires to modify the terms of the 1997
Credit Agreement (the "Loan Modification"), as set forth in the Amended
and Restated Credit Agreement dated as of the date hereof among the
Indemnitor and the Indemnitees (the "Restated Credit Agreement);
WHEREAS, the loans provided for in the Restated Credit Agreement
(collectively "Loan") are evidenced by the Notes, as defined in the
Restated Credit Agreement (the "Notes");
WHEREAS, the Notes are secured, inter alia, by the Mortgage (the
Notes, the Mortgage, and any other documents executed by the Indemnitor
that evidence and/or secure the Loan together with any extensions
renewals, replacements, modifications or amendments thereto being
hereinafter collectively referred to as the "Loan Documents"); and
WHEREAS, the Indemnitees have required the Indemnitor to execute
and deliver this Environmental Indemnity as a condition precedent to the
Indemnitees' agreement to such Loan Modification and the Indemnitor
wishes to execute and deliver this Environmental Indemnity so as to
induce the Indemnities to modify the Loan; and
WHEREAS, the Indemnitor will derive substantial benefits from the
Loan Modification;
NOW, THEREFORE, in consideration of the foregoing and other good
and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Indemnitor, hereby agrees with the Indemnitees
as follows:
SECTION 1. Definitions.
(a) In addition to the defined terms set forth above in this
Environmental Indemnity, the following terms, when used herein, shall
have the following respective meanings ascribed to them herein:
"Clean Up" shall mean removal and/or remediation of Contamination in
accordance with all requirements of applicable Hazardous Materials Law.
"Contamination" shall mean the presence of, disposal, discharge or
release on, from or to the Premises, of Hazardous Materials.
"Hazardous Materials" shall mean every substance defined as or
included in the definition of "hazardous substances," "hazardous
materials," "hazardous waste," "oil," and "toxic wastes" as they may be
severally defined in 42 U.S.C. Section 9601, et seq., 42 U.S.C. Section
6901, et seq., 10 V.S.A. Section 6602, all as amended, and regulations
promulgated thereunder, and shall include without limitation, whether or
not included in said definitions, bituminous concrete, petroleum, oil,
asbestos, nuclear materials and other substances which might be
materially dangerous to the environment or human beings, whether or not
such substances are or were present in quantities reportable under said
acts.
"Hazardous Materials Law" shall mean any federal, state or local
law, rule, ordinance, regulation, order or policy relating to any
Hazardous Material (including, without limitation, the use, generation,
treatment, handling, transportation, production, disposal, discharge,
removal, remediation or storage thereof).
"Obligations" shall mean the obligations of the Indemnitor under
Section 2 hereof.
"Person" shall mean an individual, a corporation, a partnership, an
association, a joint venture, an estate, a trust or any other legal
entity.
"Premises" shall mean the Land and the Improvements.
"Regulatory Actions" means any claim, action or proceeding brought
or instigated by any governmental authority in connection with any
Hazardous Materials Law.
"Third Party Claims" means all claims of whatever nature by third
parties (other than Regulatory Actions) arising from Contamination.
(b) Each capitalized term used and not otherwise defined herein
shall have the meaning ascribed to such term in the Loan Documents.
SECTION 2. Representations and Warranties; Covenants and
Indemnities.
(a) General Representations and Warranties. The Indemnitor
hereby represents and warrants to the Indemnitees as follows:
(i) The execution, delivery and performance by the
Indemnitor of this Environmental Indemnity does not and will not
contravene any law or governmental rule, regulation or order which is
applicable to the Indemnitor.
(ii) The execution, delivery and performance by the
Indemnitor of this Environmental Indemnity does not and will not
contravene any contractual restriction which is binding upon or which
affects the Indemnitor, and does not and will not result in or require
the creation of any lien, security interest or other charge or
encumbrance upon or with respect to any properties of the Indemnitor.
(iii) No authorization, approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
is required for the due execution, delivery and performance by the
Indemnitor of this Environmental Indemnity.
(iv) This Environmental Indemnity is the legal, valid and
binding obligation of the Indemnitor, enforceable against the Indemnitor
in accordance with its terms, except as such enforceability may be
limited by equitable principles and by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally.
(b) Covenants. The Indemnitor hereby covenants and agrees
as follows:
(i) The Indemnitor shall (A) comply in all material respects
with any and all Hazardous Materials Laws, (B) exercise due care to
prevent the occurrence of any act which will subject the premises to any
remedial obligations under the Hazardous Materials Laws, and (C) keep
the Premises free of any lien imposed pursuant to any Hazardous
Materials Laws.
(ii) The Premises will not, while the Indemnitor is the
owner thereof, be used for any activities involving, directly or
indirectly, the use, handling, generation, treatment, storage,
transportation, release or disposal of Hazardous Materials, except for
the use and storage of Hazardous Materials in compliance with applicable
laws and in the ordinary course of Indemnitor's business.
(iii) The Indemnitor will exercise due care to prevent
release or disposal of any Hazardous Materials at the Premises. The
Indemnitees shall have the right, but not the obligation, at any time
and from time to time, to conduct an environmental audit of the Premises
(at the Indemnitor's sole cost and expense if the Indemnitees have
reasonable cause to believe Contamination exists, otherwise at the
Indemnitee's sole cost and expense, provided, however, that such audit
shall also be at the Indemnitor's sole cost and expense in any instance
in which such audit reveals the existence of Contamination) and the
Indemnitor hereby covenants to cooperate in the conduct of any such
environmental audit. Any reports obtained by the Indemnitees with
respect to any such environmental audit shall be the sole property of
the Indemnitees and may not be relied upon by the Indemnitor.
(c) Indemnitees. The Indemnitor shall indemnify, defend and save
the Indemnitees harmless from and against any and all damages, losses,
liabilities, obligations, penalties, claims, litigation, demands,
defenses, judgments, suits, proceedings, expenditures, costs,
disbursements or expenses (including without limitation, all costs of
investigations, monitoring, clean-up, remediation, removal, restoration,
court costs and attorneys' and experts' fees and disbursements) of any
kind or nature whatsoever which may, at any time or from time to time,
be imposed upon, incurred by or asserted or awarded against, the
Indemnitees, by reason of, or arising from or out of:
(i) the presence of any Hazardous Materials at, on, in,
under or affecting all or any portion of the Premises, without regard to
the source or origin of such discharge;
(ii) the discharge of any Hazardous Materials from the
Premises into or onto any lands, surface waters, ground waters or air
space adjacent to or in the vicinity of the Premises;
(iii) the breach of any representation or warranty made by
the Indemnitor in Section 2(a) or Section 2(b) hereof or the breach of
any covenant made by the Indemnitor in Section 2(c) hereof; and
(iv) the Indemnitees' enforcement (or attempted enforcement)
of any of the provisions of this Section 2(d); provided however, that
the foregoing indemnification shall not apply with respect to any
liability, damages, loss, obligations, penalties, claims or expenses
which arise at a time when an Indemnitee or a receiver appointed by an
Indemnitee is in possession or control of the Premises.
Without limiting the generality of the foregoing, the scope of the
indemnification provided to the Indemnitees by this Indemnity shall
extend to and include any diminution in the value of the Mortgage as
security for the Loan which is caused by any of the events described in
clauses (i)-(iii) above and which is attributable to (A) a related loss
of lien priority with respect to the Mortgage, (B) a related decline in
the then current fair market value of the Premises, (C) a related
impairment of the Indemnitees' practical ability to realize upon their
rights under the Mortgage, or (D) any other loss of value with respect
to the Mortgage which is caused, directly or indirectly, by any of the
events described in clauses (i)-(iii) above. No amount shall be payable
under the immediately preceding sentence unless and until an Indemnitee
suffers actual harm.
SECTION 3. Indemnitor's Obligations Unconditional.
(a) The Indemnitor hereby agrees that the Obligations will be
paid strictly in accordance with the terms of this Indemnity, regardless
of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of the Loan Documents or affecting any of the
rights of the Indemnitees with respect thereto. The Obligations of the
Indemnitor hereunder shall be absolute and unconditional irrespective
of: (i) the validity, regularity, enforceability, sufficiency or
genuineness of any of the Loan Documents or any other instrument or
document executed or delivered in connection therewith or of any
endorsement thereon, even if such documents should prove to be in any or
all respects invalid, insufficient, fraudulent or forged; (ii) any
alteration, amendment, modification, release, termination or
cancellation of any of the Loan Documents, or any change in the time,
manner or place of payment of, or in any other term in respect of, all
or any of the obligations of the Indemnitor contained in any of the Loan
Documents; (iii) any extension of the maturity date of the Note or any
waiver of, or consent to any departure from, any provision contained in
any of the Loan Documents; (iv) any exchange, addition, subordination or
release of, or non-perfection of any lien on or security interest in,
any collateral for the Loan, or any release, amendment, waiver of, or
consent of any departure from any provision of, any other indemnity or
guaranty given in respect of the Loan; (v) the insolvency or bankruptcy
of the Indemnitor or of any indemnitor or guarantor under any other
indemnity or guaranty given in respect of the Loan; (vi) the existence
of any claim, set-off, defense or other right which the Indemnitor may
have at any time against the Indemnitees or any other Person, whether in
connection with the transactions contemplated in any Loan Documents or
any unrelated transaction; or (vii) any other circumstance which might
otherwise constitute a defense available to, or a discharge of, any or
all of the Indemnitor or any other indemnitor or guarantor with respect
to the Loan or any or all of the Obligations.
(b) This Environmental Indemnity (i) is a continuing indemnity
and shall remain in full force and effect until the satisfaction in full
of all of the Obligations (notwithstanding the payment in full of the
Loan or the release or other extinguishment of the Mortgage or any other
security for the Loan), and (ii) shall continue to be effective or shall
be reinstated, as the case may be, if at any time any payment of any of
the Obligations is rescinded or must otherwise be returned by the
Indemnitees upon the insolvency, bankruptcy or reorganization of the
Indemnitor or otherwise, all as though such payment had not been made.
(c) Notwithstanding the payment in full of all of the Obligations
and the payment (or performance) in full of all of the obligations under
the Loan Documents, this Environmental Indemnity shall not terminate if
any of the following shall have occurred:
(i) the Indemnitees or any affiliate, agent, employee or
independent contractor thereof has at any time or in any manner prior to
payment and performance in full of all of the obligations under the Loan
Documents, participated in the management or control of, taken
possession of (whether personally, by agent or by appointment of a
receiver), or taken title to, the Premises or any portion thereof,
whether by foreclosure, deed in lieu of foreclosure, sale under power or
sale pursuant to the Mortgage or otherwise; provided, however, that the
indemnification hereunder shall not apply with respect to any event
occurring or liability arising at a time when an Indemnitee or a
receiver appointed by the Indemnitee (or the Agent) is in possession or
control of the Premises or
(ii) there has been a change, between the date hereof and
the date on which all of the Obligations are paid in full, in any laws
with respect to Hazardous Materials, the effect of which may be to make
a lender or mortgagee liable in respect of any of the Obligations,
notwithstanding the fact that no event, circumstances or condition of
the nature described in clause (i) above ever occurred.
SECTION 4. Waiver.
The Indemnitor hereby waives (a) promptness and diligence; (b)
notice of acceptance and notice of the incurrence of any obligation by
the Indemnitor; and (c) all other notices, demands and protests, and all
other formalities of every kind, in connection with the enforcement of
the Obligations, the omission of or delay in which, but for the
provisions of this Section 4, might constitute grounds for relieving the
Indemnitors of their Obligations hereunder. The Indemnitor hereby
waives (i) THE RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY DISPUTE
ARISING UNDER, OR RELATING TO, THIS ENVIRONMENTAL INDEMNITY; (ii) any
requirement that the Indemnitees protect, secure, perfect or insure any
security interest or lien in or on any property which constitutes
collateral under any Loan Documents; and (iii) any requirement that the
Indemnitees exhaust any right or take any action against the Indemnitor
under any of the other Loan Documents or any other Person or collateral
as a pre-condition to the Indemnitees right to enforce this
Environmental Indemnity in accordance with its terms. Without limiting
the generality of the foregoing, the Indemnitor hereby waives any
defense which may arise by reason of (A) the incapacity, lack of
authority, death or disability of, or revocation hereof by, any Person
or Persons, or(B) the failure of the Indemnitees to file or enforce any
claim against the estate (in probate, bankruptcy or any other
proceedings) of any Person or Persons.
SECTION 5. Subrogation.
If any amounts shall be paid to the Indemnitor on account of any
claim arising from the presence of Hazardous Materials within the
Premises at any time when all of the obligations under the Loan
Documents shall not have been satisfied in full, such amount shall be
held in trust by the Indemnitor, and shall first be applied against
Indemnitor's costs in connection with the clean-up, containment or other
remedial action taken by Indemnitor with respect to the presence of said
Hazardous Materials. Any amounts remaining thereafter shall forthwith
be paid over to the Agent, to be applied, in whole or in part, by the
Agent against the Obligations, whether matured or unmatured. Nothing
contained in this Section 5 is intended or shall be construed to give
the Indemnitor any right of subrogation in or under the Note or any of
the other Loan Documents or any right to participate in any way therein
or in the right, title or interest of the Indemnitees in or to all or
any portion of any of the Premises, any improvements on any of the
Premises or any other property relating to the Loan, notwithstanding any
payments made by the Indemnitor in respect of the Obligations or any
other payments made by the Indemnitor under this Environmental
Indemnity, all such rights of subrogation and participation being hereby
expressly waived and released by the Indemnitor.
SECTION 6. Right of Set-Off.
The Indemnitor hereby (a) grants to the Indemnitees a security
interest in any and all deposits (general or special, time or demand,
provisional or final) at any time held, and any other indebtedness at
any time owing, by the Indemnitees to or for the account or credit of
the Indemnitor, and (b) authorizes the Indemnitees, at any time and from
time to time, after the occurrence of a default hereunder by the
Indemnitor, without notice to the Indemnitor (any such notice being
expressly waived by the Indemnitor) and to the fullest extent permitted
by law, to set off and apply any such payments against any and all
Obligations of the Indemnitor now or hereafter existing under this
Environmental Indemnity, irrespective of whether or not the Indemnitees
shall have made any demand under this Environmental Indemnity, and
although such Obligations may be contingent or unmatured. The
Indemnitees agree promptly to notify the Indemnitor after any such set-
off and application made by the Indemnitees; provided, however, that
failure to give any such notice shall not affect the validity of any
such set-off and application. The rights of the Indemnitees under this
Section 6 are in addition to all other rights and remedies (including,
without limitation, other rights of set-off) which the Indemnitees may
have hereunder or under applicable laws.
SECTION 7. Notices; Etc.
Each request, approval, notice, demand or other communication (a
"Notice") which is required or permitted to be given hereunder shall be
in writing and shall be delivered and deemed received in accordance with
the terms of the Restated Credit Agreement.
SECTION 8. Miscellaneous.
(a) The Indemnitor shall make any payment required to be made
hereunder in same day funds, in lawful money of the United States of
America, to the Agent at its address set forth in the Mortgage.
(b) No provision of this Environmental Indemnity may be waived,
changed, amended, modified or discharged without an agreement in writing
which has been signed by the Indemnitor and the Indemnitees, and no
waiver of, or consent to any departure by the Indemnitor from, any
provision of this Environmental Indemnity shall be effective unless it
is in writing and signed by the Indemnitees, and then such waiver or
consent shall be effective only in the specific instance and for the
specific purpose for which given.
(c) No failure on the part of the Indemnitees to exercise, and no
delay in exercising, any right hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any right preclude any other or further exercise
thereof or the exercise of any other right. The rights and remedies of
the Indemnitees provided herein and in the other Loan Documents are
cumulative and are in addition to, and not exclusive of, any rights or
remedies provided by law. The rights of the Indemnitees under any Loan
Document against any party thereto are not conditional or contingent
upon any attempt by the Indemnitees to exercise any of their rights
under any other Loan Document against such party or against any other
Person or collateral.
(d) Any provision of this Environmental Indemnity which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof
and without affecting the validity or enforceability of such provisions
in any other jurisdiction.
(e) This Environmental Indemnity shall (i) be binding upon the
Indemnitor and its respective successors and assigns, and (ii) inure,
together with all rights and remedies of the Indemnitees hereunder, to
the benefit of the Indemnitees, their directors, officers, employees and
agents, any participants with the Indemnitees in the Loan, any
successors to the Indemnitees interest in the Premises, any successors
to any such Person, and all directors, officers, employees and agents of
all of the aforementioned parties. Without limiting the generality of
clause (ii) of the immediately preceding sentence, the Indemnitees may
assign or otherwise transfer all or any portion of their rights and
obligations under all Loan Documents to any other Person, and such other
Person shall thereupon become vested with all of the rights and
obligations in respect thereof which were granted to the Indemnitees
herein or otherwise; provided, however, that any such assignment shall
only be to an assignee of Indemnitee's interest in the Credit Agreement.
None of the rights or obligations of the Indemnitor hereunder may be
assigned or otherwise transferred without the prior written consent of
the Indemnitees.
(f) Without limiting the generality of the clause (e) above, the
Indemnitor hereby acknowledge that the Indemnitees may sell, grant or
assign participation interest(s) in the Loan and in the Indemnitees'
rights and obligations in respect of the Loan Documents, including,
without limitation, this Environmental Indemnity. In the event that the
Indemnitees shall sell, grant or assign participation interest(s) in the
Loan and in the Indemnitees' rights and obligations in respect of the
Loan Documents, (i) the Indemnitees and the Agent may, in their sole
discretion, disclose financial and other information to prospective
participant(s) with respect to the Indemnitors, (ii) the Indemnitors
shall cooperate with the Indemnitees and the Agent in connection with
any such participation and shall execute any and all documents which may
be required or desirable, in the Indemnitees', the Agent's or such
participants' judgment, to effectuate any such participation(s), and
(iii) each representation and agreement made by the Indemnitors in this
Environmental Indemnity or in the other Loan Documents shall run to, and
each reference to the Indemnitees shall be deemed to refer to, the
Indemnitees and all of its participant(s).
(g) The Indemnitor acknowledges and agrees that its Obligations
under this Environmental Indemnity are in addition to any and all legal
liabilities, obligations and responsibilities (under common law,
statute, rule, regulation or order) which it would otherwise have as
owner of the Premises.
(h) Except as specifically set forth to the contrary herein or in
the other Loan Documents, whenever the consent, approval or satisfaction
of the Indemnitees shall be required pursuant to any provision of this
Environmental Indemnity, such consent, approval or satisfaction shall be
required to be in writing and may be granted or withheld by the
Indemnitees in their sole and absolute discretion.
(i) This Environmental Indemnity shall be governed by, and
construed and interpreted in accordance with, the internal laws of The
State of Vermont.
(j) The rights and obligations of the Agent and the Lender to
each other shall not be affected in any manner by the terms of this
Environmental Indemnity.
# # #
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the Indemnitor has duly executed this
Environmental Indemnity under seal as of the date first set forth above.
Witness: GREEN MOUNTAIN POWER CORPORATION
___________________ By:_______________________
Title:____________________
MORTGAGE AND SECURITY AGREEMENT
Mortgage and Security Agreement dated as of August 17, 1998 from
Green Mountain Power Corporation, a Vermont corporation having its
principal place of business at 25 Green Mountain Drive, South
Burlington, Vermont 05403 ("Borrower") to Fleet National Bank, having a
place of business at One Federal Street, Boston, Massachusetts 02211, as
Agent ("Fleet") The Bank of Nova Scotia, having a place of business at
28 State Street, 17th Floor, Boston, Massachusetts 02109 ("BNS") and
State Street Bank and Trust Company, having a place of business at 225
Franklin Street, Boston, Massachusetts 02110 ("State Street"; with
Fleet, BNS and State Street being referred to collectively as the
"Lenders" and each being sometimes referred to individually as a
"Lender"; and Fleet being referred to in its capacity as agent for the
Lenders, as the "Agent").
Article I
Definitions and Security Interests
1.1 Definitions
The terms used below shall have the meanings there indicated.
Collateral: That portion of the Mortgaged Property that does not
constitute real estate. Without limiting the
foregoing, the term "Collateral" shall include, to the
extent that the same constitutes Mortgaged Property:
(a) All accounts, accounts receivable, contract
rights, documents, instruments, general
intangibles, and rents, income and profits arising
from the Mortgaged Property;
(b) All personal property including inventory,
supplies, furniture, furnishings, appliances,
equipment, machinery and building and construction
materials, used or useful in the construction,
operation or maintenance of the Mortgaged
Property;
(c) Borrower's rights as lessee of all property
now or hereafter located on or used in connection
with the operation or maintenance of the Mortgaged
Property;
(d) All contracts, agreements, licenses, permits
and approvals for the construction, ownership,
maintenance and operation of the Mortgaged
Property;
(e) All warranties and guarantees of
construction contractors and subcontractors and of
suppliers and manufacturers of equipment and
material or other property incorporated into the
Improvements or otherwise constituting part of the
Mortgaged Property;
(f) The good will and trade names of Borrower
and any business conducted on the Mortgaged
Property by Borrower, and all service marks and
logotypes used in connection therewith;
(g) All books, records, plans and specifications
and operating manuals of Borrower relating to the
construction, use, operation, occupancy, and
maintenance of the Mortgaged Property;
(h) The proceeds of any insurance for damage to
the property described above; and
(i) The proceeds of all judgments, awards of
damages, and settlements for, or in lieu of, the
taking by eminent domain of all or any part of the
property described above.
Credit The Amended and Restated Credit Agreement by and among the
Agreement: Borrower, the Lenders and the Agent dated as of the
date hereof, as the same may from time to time be
modified, amended, extended, restated and/or affirmed.
Environmental The laws, rules and regulations referred to in the
Laws: definition of
Hazardous Materials.
Governmental The United States, the State of Vermont, the
Authority (ies): municipalities in which the Mortgaged Property
are located, and any political
subdivision of any of them, and any agency, authority,
department, commission, board, bureau or
instrumentality of any of them having jurisdiction over
the Loan Documents, the Mortgaged Property or any
construction thereon or the use thereof.
Hazardous
Materials: Any petroleum product and all hazardous or toxic
substances, wastes or substances, any substances which
because of their quantitative concentration, chemical,
radioactive, flammable, explosive, infectious or other
characteristics, constitute or may reasonably be
expected to constitute or contribute to a danger or
hazard to public health, safety or welfare or to the
environment, including, without limitation, any
asbestos (whether or not friable) and any
asbestos-containing materials, waste oils, solvents and
chlorinated oils, polychlorinated biphenyls (PCBs),
toxic metals, etchants, pickling and plating wastes,
explosives, reactive metals and compounds, pesticides,
herbicides, radon gas, urea formaldehyde foam
insulation and chemical, biological and radioactive
wastes, or any other similar materials or any hazardous
or toxic wastes or substances which are included under
or regulated by any federal, state or local law, rule
or regulation (whether now existing or hereafter
enacted or promulgated, as they may be amended from
time to time) pertaining to environmental regulations,
contamination, clean-up or disclosures, and any
judicial or administrative interpretation thereof,
including any judicial or administrative orders or
judgments including, without limitation, the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Section 9601 et seq.
("CERCLA"); the Federal Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901 et seq. ("RCRA");
Superfund Amendments and Reauthorization Act of 1986,
Public Law No. 99-499 (signed into law October 17,
1986) ("SARA"); Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq. ("TSCA"); or any other state
superlien or environmental clean-up or disclosure
statutes.
Indenture of
First Mortgage Indenture of First Mortgage and Deed of Trust dated as
of February 1, 1955, executed by Borrower and the Chase
National Bank of the City of New York, as from time to
time amended and as more particularly described in
Exhibit A attached hereto, and as the same may from
time to time be further modified, amended, extended,
restated, supplemented and/or affirmed.
Loan Amount: Forty-five Million and 00/100 Dollars ($45,000,000.00).
Loan The Credit Agreement, the Notes, this Mortgage and
Security Agreement, and all other agreements,
Documents: certificates and documents executed by Borrower
in connection with the loans evidenced by the Notes.
Mortgaged
Property: As defined in the Indenture of First Mortgage.
Notes: The promissory notes from Borrower to the Lenders in
the aggregate amount not to exceed the Loan Amount.
Obligations: (a) The payment of the Loan Amount and the
performance of all provisions of the Notes;
(b) The payment and performance of all
provisions of all extensions, renewals,
modifications, refinancings and amendments of the
Notes and all Notes issued in substitution
therefor;
(c) The payment and performance of all
provisions of the other Loan Documents; and
(d) The payment and performance of all other
indebtedness, obligations and liabilities of
Borrower existing on the date of this Mortgage or
arising hereafter, absolute or contingent, matured
or unmatured, secured or unsecured, arising in
connection with the Loan Documents.
Permitted
Encumbrances: As defined in the Indenture of First Mortgage.
Required Any lease, easement, restriction, license, permit,
approval,
Approvals: authorization, agreement, consent, or waiver required
by law, ordinance, rule or regulation or otherwise
necessary or desirable for the acquisition,
construction, use, occupancy, maintenance, and
operation of the Mortgaged Property whether obtained
from any Governmental Authority or other party.
Article II
Grant of Mortgage and Security Interest
2.1 Grant of Mortgage
For good and valuable consideration paid, the receipt and
sufficiency of which is hereby acknowledged, Borrower GRANTS and
CONVEYS, with power of sale to Agent, for the benefit of each Lender,
the Mortgaged Property as security for the Obligations;
TO HAVE AND TO HOLD the Mortgaged Property unto the Agent and its
successors and assigns, with power of sale in accordance with the terms
and conditions hereof, for the use and benefit of each Lender, and the
successors and assigns of each Lender, forever;
PROVIDED, HOWEVER, these presents are upon the express condition
that, if Borrower shall well and truly pay to each Lender, and otherwise
perform, the Obligations at the time and in the manner provided in the
Notes and this Mortgage, these presents and the estate hereby granted
shall cease, terminate and be void.
Said grant and conveyance is subject to the prior grant and
conveyance of the Mortgaged Property pursuant to the Indenture of First
Mortgage.
2.2 Grant of Security Interest
For good and valuable consideration paid, the receipt and
sufficiency of which is hereby acknowledged, Borrower grants to Agent,
for the benefit of each Lender, a security interest, subordinate only to
the Indenture of First Mortgage and Permitted Encumbrances, in the
Mortgaged Property (to the extent that such Mortgaged Property includes
property that does not constitute real estate) under the Uniform
Commercial Code in effect in the State of Vermont to secure the
Obligations. The recording of this Mortgage and Security Agreement
shall constitute a fixture filing and financing statement under the
Uniform Commercial Code in effect in the State of Vermont. Neither this
grant of a security interest nor the filing of a financing statement
shall, however, be deemed to impair the intention that to the extent
possible all property included in the Mortgaged Property is a part of
the real estate.
Article III
Representations, Warranties, and Agreements
3.1 General
Borrower hereby represents, warrants and agrees with the Lenders
that:
(a) Borrower is duly authorized to make and enter into the
Loan Documents and to carry out the transactions contemplated
therein;
(b) The Loan Documents have each been duly executed and
delivered on behalf of Borrower;
(c) Borrower will pay and perform all of the Obligations;
(d) Borrower shall, at its expense, cause this Mortgage and
each amendment thereof and appropriate financing and
continuation statements to be recorded and filed in order to
establish and preserve the liens and security interests of the
Agent, for the benefit of each Lender;
(e) To the best of the Borrower's knowledge, there are no
Hazardous Materials on the Mortgaged Property except to the
extent that the Hazardous Materials are licensed and approved
in accordance with all applicable laws and regulations and are
in compliance with the terms of Lenders' written approval; and
(f) Borrower will comply in all material respects with all
laws, ordinances, by-laws, rules and regulations including
zoning, subdivision control, environmental and other land use
control laws, all applicable building, health and sanitation
laws, and all easements, restrictions, agreements and
encumbrances affecting the Mortgaged Property. To the extent
material to its operation, Borrower will obtain all Required
Approvals and fulfill in every way the requirements of all
Governmental Authorities. Borrower will promptly notify the
Agent (who shall then promptly notify the Lenders) of any
Hazardous Materials located in or on the Mortgaged Property,
except as permitted pursuant to subsection 3.1(e) above.
(g) There are no outstanding judgments against, or actions,
suits or proceedings at law or in equity or before or by any
Governmental Authority or the State of Vermont pending or
threatened (to Borrower's knowledge) against or affecting
Borrower, or the Mortgaged Property or the validity or
enforceability of the Loan Documents or the priority of the
lien thereof which, if enforced or decided against Borrower
would have a material advance effect on Borrower. To the best
of Borrower's knowledge, it is not in default with respect to
any order, writ, injunction, decree or demand of any court or
any Governmental Authority;
(h) The performance of this Mortgage, the consummation of the
transactions hereby contemplated, and the execution and payment
of the Notes and other Loan Documents have not and will not
result in any breach of, or default under, any mortgage, deed
of trust, lease, bank loan or credit agreement, charter,
articles of incorporation, by-law, declaration of trust, joint
venture or partnership agreement or other instrument to which
Borrower or any guarantor of Borrower's obligations is a party
or by which any of the foregoing, or their assets, may be bound
or affected;
(i) Borrower shall allow the Agent, each Lender and the
Agent's and the Lenders' agents access to inspect the Mortgaged
Property (insofar as Borrower has the authority to do so under
the leases or other occupancy agreements from time to time in
effect at the Mortgaged Property) during normal business hours
upon reasonable notice from a Lender to Borrower; and
(j) Borrower's obligations and liabilities under this
Mortgage are not limited in any way by the definition of "Loan
Amount" on page one hereof, and Borrower specifically
acknowledges and agrees that this Mortgage secures the entire
indebtedness due from Borrower to the Lenders under the Loan
Documents.
3.2 Title to Mortgaged Property; Other Liens
Borrower represents, warrants and agrees that:
(a) Borrower owns good clear record and marketable fee simple
absolute title to the Mortgaged Property that constitutes real
estate, free of all encumbrances except (i) the Indenture of
First Mortgage and Permitted Encumbrances (ii) property held
under leases and rights-of-way, easements, riparian rights,
flowage rights and property of similar character, and (iii)
certain other reservations, encumbrances and minor defects in
title such as are customarily encountered in the public utility
business and which do not materially interfere with the
Borrower's use of the Mortgaged Property; and
(b) Borrower shall keep the Mortgage and the other Loan
Documents, and each amendment, modification or supplement
thereto, valid and unimpaired and the security interest of
Lender thereunder a fully perfected security interest, subject
only to the Indenture of First Mortgage and Permitted
Encumbrances. On request of any Lender, Borrower shall execute
and deliver such instruments and take or cause to be taken such
action as may be required to establish, preserve and protect
the lien and security interests of the Lenders in the Mortgaged
Property.
3.3 Restrictions on Transfers
Borrower will not without the prior written approval of the
Lenders in each instance convey, assign, or permit the
conveyance or assignment of all or any part of any legal or
beneficial interest in the Mortgaged Property, except as may be
specifically permitted by the terms of the Indenture of First
Mortgage, as in effect on the date hereof.
3.4 Payments
Borrower will pay when due:
(a) All principal, interest and other charges, if any, due
under the Loan Documents;
(b) All taxes, betterments, assessments and other
governmental levies, water and sewer charges, insurance
premiums, and other charges, to whomever and whenever assessed,
whether on the Mortgaged Property or any interest therein, on
the Loan Documents, or on any debt secured thereby, provided,
however, that, so long as the Borrower has established adequate
reserves, the Borrower shall have the right to contest any such
charges in good faith; and
(c) All federal, state and municipal taxes of whatever kind
and nature which could, if unpaid, result in a lien on the
Mortgaged Property or on any interest therein.
3.5 Operation of the Mortgaged Property
Borrower will:
(a) Make such repairs and replacements and take such other
steps as may be necessary to maintain the Mortgaged Property
(to the extent owned or leased by Borrower) and any abutting
grounds, sidewalks, roadways and parking and landscaped areas
under Borrower's control in at least as good condition as the
same now are or hereafter may be put in while this Mortgage is
outstanding, deterioration incidental to reasonable wear and
tear, casualty and eminent domain takings only excepted, it
being understood, however, that the foregoing exception for
reasonable wear and tear shall not relieve Borrower from the
obligation to repair or replace worn out, inoperative, obsolete
or otherwise deficient elements of the Mortgaged Property;
(b) Maintain all Required Approvals in full force and effect,
except when the failure to maintain a Required Approval could
not have a material adverse effect on the Mortgaged Property or
the Borrower; and
(c) Perform all of Borrower's obligations under all contracts
relating to the ownership, use, operation, maintenance or
occupancy of the Mortgaged Property except when the failure to
perform could not have a material adverse effect on the
Mortgaged Property or the Borrower.
Notwithstanding the foregoing, the Borrower shall have the
right to discontinue operation of any Mortgaged Property in
accordance with Section 9.08 of the Indenture of First
Mortgage, as in effect on the date hereof.
3.6 Notices
Borrower will deliver to Agent promptly upon receipt of the same
(and the Agent shall promptly forward to each Lender copies of the
same), copies of all notices, certificates and documents received by
Borrower which materially affect the Mortgaged Property or its use or
which make a claim or assertion which if true would cause Borrower to be
in default under the Loan Documents.
3.7 Security Agreement Representations
The Collateral shall be used for business purposes and shall be
kept at the Mortgaged Property. In addition to recording this Mortgage
in the real property records, Agent may, at any time and without further
authorization from Borrower, file executed counterparts, copies or
reproductions of this Mortgage as a financing statement. When requested
by Agent, Borrower will:
(a) Execute and deliver to Agent, in form appropriate for
recording and filing, financing statements relating to the
Collateral; and
(b) Provide to Agent, or any Lender, such other assurances as
may be required by Agent, or any Lender, to establish and
maintain Agent's security interest in the Collateral, on behalf
of each Lender. Any assurances received by the Agent or a
Lender pursuant to this Subsection 3.7(b) shall be promptly
conveyed to the other Lenders.
3.8 Borrower's Obligation to Report Defaults
Borrower will promptly notify Agent (and the Agent shall than
promptly notify the Lenders) upon becoming aware of the occurrence of
any event which would constitute an Event of Default hereunder, or which
would constitute an Event of Default hereunder if it were to continue
after any notice required.
3.9 Borrower's Obligation to Restore and Rebuild
Subject to Section 3.5 above, if any Mortgaged Property that is
owned or leased by Borrower is damaged or destroyed by any cause
whatsoever, Borrower shall, at its expense, as soon as practicable,
repair or rebuild the same, whether insurance proceeds or taking awards
are available or not, except that Borrower shall not be required to
repair or rebuild the Mortgaged Property if the Lenders or the Trustee
under the Indenture of First Mortgage retain(s) the insurance proceeds
or taking award with respect to such damage, destruction or taking.
Article IV
Eminent Domain
4.1 Taking
In case of any condemnation for public use of, or any damage by
reason of the action of any governmental entity or authority to, all or
any part of the Borrower's Interest in the Mortgaged Property (a
"Taking"), or the commencement of any proceedings or negotiations which
might result in a Taking or a settlement in lieu thereof, Borrower shall
promptly give written notice thereof to Agent, describing the nature and
extent of the Taking or the nature of such proceedings or negotiations.
Agent may, at its option, appear in any such proceedings or
negotiations, and Borrower shall promptly give Agent copies of all
notices, pleadings, determinations and other papers. Borrower shall in
good faith and with due diligence file and prosecute Borrower's claim
for any award or payment on account of any Taking. Borrower shall not
settle any such claim without Agent's prior written consent. The Agent
shall provide to each Lender a copy of each notice received by Lender
pursuant to this Section 4.1.
4.2 Application of Award
Borrower hereby assigns to Agent all of Borrower's rights in any
award received in connection with a Taking or any settlement received in
lieu thereof and authorizes such awards and settlements to be paid
directly to Agent, for the benefit of each Lender. If Borrower collects
any such award, Borrower shall promptly pay the same to Agent. Any such
award, after deducting therefrom all costs and expenses, including
reasonable attorneys' fees incurred by Agent in connection therewith,
shall be applied as follows:
(a) In the case of a partial Taking, if no Event of Default
exists and Agent reasonably determines that the Mortgaged
Property can be economically restored and operated in
accordance with the Loan Documents, Agent shall release to
Borrower on terms and conditions satisfactory to Agent so much
of such award, reduced as provided above, as may be necessary
to restore the Mortgaged Property, and the balance, if any,
shall be applied to the Loan Amount; and
(b) In the case of a complete Taking, or in the case of a
partial taking, if an Event of Default exists or if Agent
reasonably determines that the Mortgaged Property cannot be
economically restored and operated in accordance with the Loan
Documents, Agent may, at its option, apply such award, reduced
as provided above, to the reduction of the Loan Amount, with
any balance to be paid to Borrower.
4.3 The provisions of this Article IV shall be inoperative as long as
the Indenture of First Mortgage remains in effect.
Article V
Defaults and Remedies
5.1 Events of Default
The occurrence of any one or more of the following events shall
constitute an "Event of Default":
(a) An Event of Default under any other Loan Document which
continues beyond the expiration of any applicable notice or
cure period;
(b) Failure by Borrower to make any payment due under this
Mortgage within five (5) Business Days (as defined in the Credit
Agreement) after such payment is due or declared due;
(c) Failure by Borrower to perform any term or condition of
this Mortgage other than a payment due, which failure continues
for thirty (30) days following notice from the Agent or the
Lenders; provided, however, that if such failure cannot
reasonably be cured within such thirty (30) days period, such
thirty (30) day period shall be extended to ninety (90) days
provided that Borrower commences a cure of such failure within
such thirty (30) day period and diligently prosecutes such cure
to completion within such ninety (90) day period;
(d) [Intentionally Omitted];
(e) Any Hazardous Materials become present in material
quantities in or on the Mortgaged Property other than as
permitted hereunder and which are licensed and approved in
accordance with all applicable laws and regulations;
(f) If at any time there is a material discharge, deposit,
injection, dumping, spilling, leaking, incineration or placing
of any Hazardous Materials into or on the Mortgaged Property;
(g) If at any time, the use, generation, treatment, storage
or disposal of any Hazardous Materials on the Mortgaged
Property is in violation of the Environmental Laws in any
material respect;
(h) Failure of Borrower to obtain or cause to be obtained in
due course any Required Approvals, or the revocation or other
invalidation of any Required Approvals previously issued, and
failure of Borrower to cure the same or cause the same to be
cured within thirty (30) days except where such failure could
not have a material adverse effect on the Borrower or the
Mortgaged Property;
(i) [Intentionally Omitted; and
(j) Default by Borrower under any superior or subordinate
mortgage or deed of trust which at any time encumbers any
portion of the Mortgaged Property, other than a default that is
waived by the party secured by such Mortgage or deed of trust
(without hereby intending to vary the requirement of this
Mortgage that no such encumbrances, other than the Indenture of
First Mortgage, shall be placed without each Lender's prior
written consent).
5.2 Hazardous Materials Cleanup
So long as Borrower (a) promptly gives the Agent notice of the
presence of any material quantities of Hazardous Materials in or on the
Mortgaged Property, except as permitted hereunder; (b) complies with any
notice requirements imposed by any of the Environmental Laws; (c)
demonstrates to Lenders' satisfaction that (i) Borrower has the
financial resources to perform any legally required cleanup and
containment and (ii) no lien shall arise in connection with such cleanup
that would take priority over the lien of this Mortgage (provided,
however that so long as Borrower has established adequate reserves,
Borrower shall have the right to contest any such lien and any purported
liability forming the basis for such lien); and (d) diligently pursues
any legally required cleanup and containment to completion in accordance
with applicable law, the Lenders agree not to foreclose this Mortgage or
accelerate payment under the Notes solely because of an Event of Default
described in Subsections 5.1(e),(f) and (g) above. The Agent shall
provide to each Lender a copy of each notice received by Lender pursuant
to this Section 4.2.
5.3 Remedies
Except as provided in Subsection 5.2 above, after an Event of
Default, Agent may, at its option and without notice:
(a) Exercise any of Agent's or any Lender's remedies provided
in this Mortgage and any of the other Loan Documents;
(b) Declare the Loan Amount immediately due and payable;
(c) Apply to the Loan Amount any deposits or other sums
credited by or due from any Lender to Borrower;
(d) Take possession of the Mortgaged Property, to the full
extent that the Borrower is entitled to possession of the
Mortgaged Property, without liability for trespass, damages or
otherwise, and operate the Mortgaged Property as a mortgagee in
possession with all the same powers as could be exercised by a
receiver; demand and receive payment of all rents, benefits and
profits of the Mortgaged Property, including those past due and
unpaid (whether or not the Agent has taken possession of the
Mortgaged Property); or have a receiver immediately appointed
for the Mortgaged Property and the earnings, revenues, rents,
issues, profits and other income thereof and therefrom, with
all such powers as the Court making such appointment shall
confer;
(e) Make any payments required to be made by Borrower under
the Loan Documents or otherwise in respect of the Mortgaged
Property. The amount of all such payments shall be immediately
due and payable by Borrower, and until paid, shall be added to
the Loan Amount, shall bear interest at the default rate set
forth in the Notes, and shall be secured by the Loan Documents
with the same priority as the face amount. Such payments may
include, but are not limited to, payments for taxes and other
governmental levies, water rates, insurance premiums,
maintenance, repairs or improvements of the Mortgaged Property;
(f) Perform any and all obligations of Borrower under the
Loan Documents without waiving any rights or releasing Borrower
from any obligations thereunder;
(g) Exercise any of the rights and remedies of a Secured
Party under the Uniform Commercial Code in effect in the State
of Vermont, including but not limited to:
(i) Either personally or by means of a receiver, take
possession of all or any of the Collateral and exclude
therefrom Borrower and all others claiming under
Borrower, and thereafter store, use, operate, manage,
make repairs, replacements, alterations and additions to
and exercise all rights and powers of Borrower in
respect to the Collateral or any part thereof;
(ii) Without notice to or demand upon Borrower, make
such payments and do such acts as Lender may reasonably
deem necessary to protect its security interest in the
Collateral, including without limitation, paying,
contesting or compromising any encumbrance or lien which
is prior to the security interest granted hereunder, and
in exercising any such powers to pay all expenses
incurred in connection therewith;
(iii) Require Borrower to assemble the Collateral or
any portion thereof, at a place within the State of
Vermont designated by Agent and reasonably convenient to
both parties, and promptly to deliver possession of such
Collateral to Agent or an agent designated by it. The
Agent and its agents shall have the right to enter upon
any of Borrower's property to exercise the Agent's and
the Lenders' rights hereunder;
(iv) Sell, lease or otherwise dispose of the
Collateral at private or public sale, with or without
having the Collateral at the place of sale, and upon
such terms and in such manner as the Agent may
determine, subject to requirements of commercial
reasonableness and otherwise in compliance with the
requirements of the Uniform Commercial Code as then in
effect in the State of Vermont. The Agent and/or any
one or more Lenders may be a purchaser at such sale; and
(v) Unless the Collateral is perishable or threatens
to decline speedily in value or is of a type customarily
sold on a recognized market, the Agent shall give
Borrower at least five (5) days' prior written notice of
the time and place of any private or public sale of the
Collateral or other intended disposition thereof;
(h) Foreclose this Mortgage in any manner permitted by law,
or at the request of Agent, Borrower shall execute and deliver
such instruments as the Agent may request in order to convey
and transfer all of Borrower's interest in the Mortgaged
Property, and the same shall operate to divest all rights,
title and interest of Borrower in and to the Mortgaged
Property. In the event that this Mortgage shall include more
than one parcel of Mortgaged Property or subdivision (each
hereinafter called a "portion"), the Agent shall, in its sole
and exclusive discretion, be empowered to foreclose upon any
such portions without impairing its right to foreclose
subsequently upon any other portion or the entirety of the
Mortgaged Property from time to time thereafter;
(i) Agent may foreclose Borrower's interest in all or in any
part of the Mortgaged Property by nonjudicial sale, subject to
the requirements of applicable law; and
(j) Take such other actions or proceedings as Agent
reasonably deems necessary or advisable to protect its interest
in the Mortgaged Property.
Except as expressly otherwise provided in this Section 5.3, Agent
may exercise any or all of its remedies hereunder without the necessity
of taking possession of the Mortgaged Property (whether itself or
through an agent). Such rights, remedies and options shall continue
until all such Events of Default have been cured, and may be exercised
individually, sequentially or in concert, and with respect to all or any
portion of the Mortgaged Property. All such rights, remedies and
options are cumulative and the exercise of one shall not be deemed a
waiver of any of the others or a cure of any default. As among the
Agent and each Lender, the Agent's rights and obligations to act on
behalf of each Lender hereunder are subject to and governed by Section 9
of the Credit Agreement.
5.4 Receiver
Upon or at any time after, any Event of Default under this
Mortgage, Agent shall be entitled at its option to the appointment of a
receiver of the Mortgaged Property. Such appointment may be made
without regard to the solvency or insolvency of Borrower at the time of
application for such receiver and without regard to the then value of
the Mortgaged Property and Agent may be appointed as such receiver.
Such receiver shall have power: (a) to collect the rents, issues and
profits of the Mortgaged Property; (b) to extend or modify any then
existing leases and to make new leases, which extensions, modifications
and new leases may provide for terms to expire, or for options to lease
or to extend or renew to expire, beyond the maturity date of the Notes
and beyond the date of the issuance of a deed or deeds to a purchaser or
purchasers at a foreclosure sale, it being understood and agreed that
any such leases, and the options or other such provisions to be
contained therein, shall be binding upon Borrower and all persons whose
interest in the Mortgaged Property are subject to the lien hereof and
upon the purchaser or purchasers at any foreclosure sale,
notwithstanding any redemption from sale, discharge of the obligations,
satisfaction of any foreclosure decree, or issuance of any certificate
of sale or deed to any purchaser; and (c) all other powers which may be
necessary or appropriate for the protection, possession, control,
management and operation of the Mortgaged Property. This Subsection 5.4
shall be inoperative as long as the Indenture of First Mortgage remains
in effect.
5.5 No Waiver or Release
No delay or omission on the part of the Agent or any Lender in
exercising any right hereunder or under the Loan Documents shall operate
as a waiver of such right or of any other right, and a waiver of any
such right on any one occasion shall not be construed as a bar to or a
waiver of any such right on any other occasion. No sale of any of the
Mortgaged Property, no forbearance on the part of the Agent or any
Lender, no release or partial release of any of the Mortgaged Property,
and no extension, whether oral or in writing, of the time for the
payment of the whole or any part of the Loan Amount or any other
indulgence given by the Agent or any Lender to Borrower or any other
person or entity, shall operate to release or in any manner affect the
lien of the Mortgage or the liability of Borrower, notice of any such
extensions or indulgences being hereby waived by Borrower. Acceptance
by the Agent or any Lender of any payment in an amount less than the
amount then due on the Obligations secured hereby shall be deemed an
acceptance on account only and the failure to pay the entire amount then
due shall be and continue to be an Event of Default; at any time
thereafter and until the entire amount then due on the Obligations
secured hereby has been paid, the Agent and each Lender shall be
entitled to exercise all rights conferred upon it in this Mortgage upon
the occurrence of an Event of Default. The exercise of any option in
this Mortgage by the Agent or any Lender shall not be deemed a waiver of
its rights to exercise any other option; and the filing of a suit for
collection of the Notes and foreclosure of this Mortgage or for any
other default hereunder shall not preclude sale pursuant to the power of
sale contained in this Mortgage after a dismissal of the suit. No
provision hereof shall be deemed to release Borrower's obligation to pay
the Obligations secured hereby until such time as all thereof have been
paid to the Lender in full. If foreclosure should be commenced by the
Agent, at any time before the sale of the Mortgaged Property, the Agent
may abandon such sale and may at any time or times thereafter again
commence such sale, or the Agent may sue for collection of the Notes and
foreclosure of this Mortgage; if the Agent should sue for such
collection and/or foreclosure, it may at any time before entry of final
judgment dismiss the suit and sell the Mortgaged Property pursuant to
the power of sale contained herein.
5.6 Cumulative Rights and Remedies
The Agent and each Lender shall have the right to exercise any and
all remedies under the Loan Documents until all Events of Default have
been cured, and such remedies may be exercised individually,
sequentially or in concert, all such remedies being cumulative, the
exercise of one not being deemed a waiver of any of the others or a cure
of any default.
5.7 Borrower's Waiver of Certain Rights
Borrower waives any rights it may have to receive notice of any
action or proceeding to enforce the Agent's and each Lender's rights
under any Loan Document other than the notices herein provided for. In
the event of foreclosure, Borrower will not claim the benefit of any law
now or hereafter in force providing for any appraisal, stay, extension
or redemption. Borrower waives all rights of redemption, appraisal,
stay of execution, notice of acceleration and marshalling. Borrower
waives trial by jury to the maximum extent permitted by law.
5.8 Effect of Exercise of Rights
Any action taken or sums paid, and any costs or expenses incurred
by the Agent and each Lender, including attorneys' fees, pursuant to the
Agent and each Lender's exercise of its rights, shall as between the
parties be deemed valid, so that in no event shall the necessity or
validity of any such action or payments, costs or expenses be disputed.
5.9 Change in Law
If any law is hereafter enacted by the State of Vermont changing in
any way the laws applicable to mortgages or the taxation thereof or the
manner of collection of any such taxes, so as to affect adversely and
materially any material rights of the Agent and/or any Lender or any
material provisions hereof, the Loan Amount hereby secured shall, at the
election of the Agent or such Lender, as the case may be, become due and
payable on demand; provided, however, that if the Borrower can lawfully
pay any amount or promptly perform any obligation, and forthwith pays or
performs the same, so that any such change in law does not adversely and
materially affect the rights of the Agent or such Lender, the Loan
Amount shall not be accelerated.
5.10 Mortgagee in Possession
If the Agent enters upon and takes possession of the Mortgaged
Property as provided in Section 5.3, the Agent may operate and manage
the Mortgaged Property and perform any acts which the Agent, in its sole
discretion, on behalf of each Lender, reasonably deems necessary or
desirable to protect and preserve the marketability, rentability,
increase the income, or conserve the value of the Mortgaged Property.
The Agent shall have no liability for any action or inaction while in
possession of the Mortgaged Property so long as such action or inaction
is taken or omitted in good faith.
Article VI
General
6.1 Agent's and Lenders' Expenses
To the extent permitted by law, if the Agent or any Lender retains
an attorney to collect any sums due under this Mortgage, enforce any of
the provisions hereof, or otherwise protect the Agent's and the Lenders'
interests, Borrower agrees to pay Agent and the Lenders, on demand, all
costs and expenses in connection therewith, including all court costs
and reasonable attorney's fees, whether or not suit is brought or
prosecuted to completion, together with interest thereon at the default
rate set forth in the Notes.
6.2 Indemnification
Borrower agrees to hold harmless and indemnify the Agent and the
Lenders from all liability, claim, loss, cost, damage, and expense from
any claim for damage to property or death or injury to persons which may
arise in connection with the construction, use, operation, maintenance
or occupancy of the Mortgaged Property, including, without limitation,
any liability, claim, loss, cost, damage or expense arising from a
violation of the Environmental Laws. The foregoing indemnity shall not
apply with respect to any liability, loss, cost, damage or expense that
arises, solely from events that occur at a time when Agent, or a
receiver appointed by the Agent, or a Lender is in possession and
control of the Mortgaged Property. Borrower shall further indemnify and
hold the Agent and the Lenders harmless from all liability, claim, loss,
cost, damage and expense suffered or incurred by the Agent and the
Lenders as a result of any misrepresentation made in connection with
this loan, or the breach of any representation, warranty or agreement
made by Borrower or by any other party to the Agent and/or the Lenders
under this Mortgage or any other Loan Document. The provisions of this
Section shall survive the discharge or foreclosure of this Mortgage.
6.3 Decisions of the Agent and the Lenders
All decisions and determinations of the Agent and the Lenders made
in good faith as to any question of fact or law under any of the Loan
Documents shall be conclusive and binding on Borrower.
6.4 Joint and Several Liability
If more than one party executes this Mortgage the term Borrower
shall mean all of them, and each of them shall be jointly and severally
liable hereunder.
6.5 Captions
Captions are used for convenience of reference only and are not to
be construed as part of the terms of this Mortgage.
6.6 Severability
The invalidity of any provisions of this Mortgage shall in no way
affect the validity of any other provision.
6.7 Singular and Plural
Where required by the context the singular shall include the plural
and the plural shall mean the singular.
6.8 Gender
The masculine, feminine and neuter forms shall be interpreted
interchangeably wherever the text requires.
6.9 Successors and Assigns
This Mortgage is binding upon and shall inure to the benefit of the
parties hereto and their heirs, successors, personal representatives,
and assigns.
6.10 Notices
All notices given hereunder shall be in writing and shall be
delivered in accordance with the provisions of Section 11 of the Credit
Agreement.
6.11 Governing Law
This Mortgage shall be interpreted in accordance with and governed
by the laws of the State of Vermont.
6.12 Jurisdiction
Any and all judicial actions relating to this Mortgage or any of
the other Loan Documents shall be adjudicated solely in the courts of
the State of Vermont or the United States District Court for the
District of Vermont. Borrower submits to personal jurisdiction of the
state courts within the State of Vermont and waives any and all personal
rights to object to such jurisdiction. Borrower agrees service of
process may be made and personal jurisdiction obtained by serving
Borrower at the address stated on the first page hereof.
6.13 Changes in Writing
This Mortgage may not be changed, waived, or terminated except in a
writing signed by the party against whom enforcement of the change,
waiver, or termination is sought.
6.14 Legal Proceedings
The Agent and the Lenders shall have the right, but not the duty,
to intervene or otherwise participate in any legal or equitable
proceeding which, in the Agent's or any Lender's sole judgment, affects
the Mortgaged Property or any of the rights created or secured by any of
the Loan Documents. The Agent and the Lenders shall have such right
whether or not there is a continuing Event of Default hereunder.
6.15 Successors
In the event that Borrower conveys its interest in the Mortgaged
Property or any portion thereof (without hereby implying any right of
Borrower to do so without each Lender's prior written consent), the
Agent and the Lenders may, without notice to Borrower, deal with such
successor or successors in interest with reference to this Mortgage and
the Notes secured hereby, either by way of forbearance on the part of
the Agent and the Lenders or extension of the time of payment of the
debt or any sum hereby secured or otherwise, without in any way
modifying or affecting the original liability of Borrower or any other
party on the Notes secured hereby.
6.16 Further Instruments
At any time and from time to time, upon request of Agent, Borrower
shall promptly execute and deliver to the Agent and the Lenders such
additional instruments as may be reasonably required to further evidence
the lien of this Mortgage and further to protect the security interest
of the Lenders with respect to the Collateral.
6.17 Other Representations and Warranties
All statements contained in any loan application, certificate or
other instrument delivered by Borrower to the Agent, the Lenders or any
of their representatives in connection with the Loan secured by this
Mortgage shall constitute representations and warranties made by
Borrower hereunder.
6.18 The Agent and the Lenders
The rights and obligations of the Agent and the Lender to each
other shall not be affected in any manner by the terms of this Mortgage
and Security Agreement. Without limiting the generality of the
foregoing sentence, each consent provided hereunder by the Agent shall
be subject to, and shall be made in accordance with, the terms set forth
in Section 10.8 of the Credit Agreement.
EXECUTED under seal as of the date first above written.
BORROWER
GREEN MOUNTAIN POWER CORPORATION
By:________________
Print Name:________
Title:_____________
Attest:
Print Name:
Signed, sealed and delivered on behalf
of Green Mountain Power Corporation in
the presence of
Print Name:
As Witness
State of Vermont
_______________, ss. ____________________ , 1998
In the City of _____________, Vermont, then personally appeared the
above-named , of Green Mountain Power
Corporation, and acknowledged the foregoing instrument to be his free
act and deed and the free act and deed of said corporation, before me.
Notary Public
Print Name:
My Commission Expires:
EXHIBIT A
Description of Indenture of First Mortgage
(include all recording references)
[Borrower's Counsel to Provide]
<TABLE> <S> <C>
<ARTICLE> UT
<LEGEND>
This schedule contains summary financial information extracted from the
Consolidated Balance Sheet as of September 30, 1998 and the related
Consolidated Statements of Income and Cash Flows for the nine months
ended September 30, 1998 and is qualified by reference to such financial
statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> SEP-30-1998
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 197,153
<OTHER-PROPERTY-AND-INVEST> 21,839
<TOTAL-CURRENT-ASSETS> 35,275
<TOTAL-DEFERRED-CHARGES> 30,965
<OTHER-ASSETS> 26,883
<TOTAL-ASSETS> 312,115
<COMMON> 17,717
<CAPITAL-SURPLUS-PAID-IN> 71,192
<RETAINED-EARNINGS> 21,566
<TOTAL-COMMON-STOCKHOLDERS-EQ> 110,475
3,600
12,735
<LONG-TERM-DEBT-NET> 88,500
<SHORT-TERM-NOTES> 8,500
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 1,700
0
<CAPITAL-LEASE-OBLIGATIONS> 8,342
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 78,263
<TOT-CAPITALIZATION-AND-LIAB> 312,115
<GROSS-OPERATING-REVENUE> 133,648
<INCOME-TAX-EXPENSE> 291
<OTHER-OPERATING-EXPENSES> 132,084
<TOTAL-OPERATING-EXPENSES> 132,375
<OPERATING-INCOME-LOSS> 6,273
<OTHER-INCOME-NET> (291)
<INCOME-BEFORE-INTEREST-EXPEN> 5,982
<TOTAL-INTEREST-EXPENSE> 5,833
<NET-INCOME> 149
991
<EARNINGS-AVAILABLE-FOR-COMM> (842)
<COMMON-STOCK-DIVIDENDS> 4,309
<TOTAL-INTEREST-ON-BONDS> 5,287
<CASH-FLOW-OPERATIONS> 3,724
<EPS-PRIMARY> (0.16)
<EPS-DILUTED> (0.16)
</TABLE>
